Collective redundancy exercises are one of the most challenging projects for an employer to undertake. The consequences of getting the duty to inform and consult wrong can be enormous, with the maximum compensation for failure set at 90 days' gross pay per affected employee (to increase to 180 days in April 2026. In the case reported below, the EAT provided some much-needed clarity on how to count proposed dismissals at the relevant time.
Section 188 of Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) sets out the requirements for collective consultation. The duty arises when an employer is proposing to dismiss as redundant 20 or more employees at one establishment in a period of 90 days or less.
TULRCA implements the EU Collective Redundancies Directive which defines collective redundancies in Article 1, and provides that obligations to inform and consult are triggered when 20 or more redundancies are contemplated in Article 2. The UK implementation differs in some significant respects to the Directive, and so it is not always easy to extrapolate form ECJ decisions what this means for UK law.
A 2020 decision of the ECJ, Marclean, held that dismissals should be counted retrospectively and prospectively in a 90-day rolling period, when calculating what counts as a dismissal for collective redundancy purposes. Marclean was widely interpreted by Employment Tribunals as requiring employers to look both back and forward from an...
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