Micro Focus v Mildenhall: A Timely Reminder Ahead of the ERA 2025 Collective Redundancy Reforms

As organisations prepare for the new collective redundancy framework under the Employment Rights Act 2025 (ERA 2025), the recent decision in Micro Focus v Mildenhall offers a useful illustration of how Tribunals approach “proposals”, pooling, and the scope of the employer’s duty to engage in collective consultation.

What happened in Micro Focus v Mildenhall?

Mr Mildenhall was dismissed on grounds of redundancy and argued that Micro Focus should have collectively consulted because, in his view, the employer was proposing 20 or more redundancies within a 90‑day period. He relied on redundancies across different group companies and at different points in time. The Employment Tribunal (ET) agreed and awarded a full 90‑day protective award for failure to consult.

On appeal, the Employment Appeal Tribunal (EAT) upheld the finding of unfair dismissal but remitted the collective consultation issue, making two key clarifications:

1. Only redundancies proposed by the same employer count: group companies, even where closely integrated, cannot be aggregated for the purposes of triggering collective consultation. The statutory duty is employer‑specific.

2. The ET misapplied the case law on what it means to ‘contemplate’ redundancies: the EAT emphasised that:

1. The question is what the employer was proposing for the future at the material time.
2. There is no requirement to look backwards or forwards 90 days to artificially construct a threshold.
3. A “proposal” is not a single moment in time, and it can evolve. The ET must determine, as a matter of fact, whether the employer was at any stage proposing 20 or more redundancies.

This is a subtle but important distinction: the duty is triggered by the employer’s forward‑looking intention, not by a retrospective tally.

Why this matters for the ERA 2025 reforms

The ERA 2025 introduces significant changes to collective redundancy rules, including clearer definitions of when consultation must begin and enhanced enforcement mechanisms. Although the detailed regulations will phase in from 2026-27, the direction of travel is unmistakable: greater transparency, earlier engagement, and stricter compliance expectations.

From April 2026 the protective award will be increased from 90 days’ pay to 180 days’ pay. From 2027, following an anticipated government consultation, a new “threshold number of employees” will trigger the duty to engage in collective consultation.

Micro Focus v Mildenhall aligns with, and foreshadows, several themes in the new regime:

1. A sharper focus on the employer’s intention. The ERA 2025 reforms emphasise early identification of restructuring proposals, requiring employers to begin consultation at the “formative stage” of planning. The EAT’s insistence on examining what the employer was proposing at the material time mirrors this shift.

2. Clearer boundaries around who counts towards the threshold. The case reinforces that the duty is triggered on an employer-by-employer basis. This becomes even more important under the ERA 2025, which introduces:

1. More explicit definitions of “establishment”,
2. Clearer rules on when employees are “affected”, and
3. Enhanced obligations to document the rationale for threshold calculations.

Group structures will need to be especially disciplined in how they record and communicate restructuring decisions.

3. Increased scrutiny of consultation quality. Although the collective consultation point was remitted, the EAT still upheld unfair dismissal because:

1. The consultation was inadequate, and
2. The redundancy pool was improperly drawn.

4. The importance of contemporaneous evidence. The EAT’s approach underscores that tribunals will interrogate:

1. When proposals were formed,
2. How they evolved, and
3. What the employer understood its future intentions to be.

This aligns with the ERA 2025’s push for better record‑keeping, including documented decision pathways and clearer internal governance around restructuring.

What employers should take from this

Micro Focus v Mildenhall is a reminder that:

1. Collective consultation obligations turn on what the employer is proposing, not on retrospective arithmetic.

2. Group companies cannot rely on operational closeness to aggregate numbers.

3. Consultation must be meaningful, timely, and supported by a defensible redundancy pool.

With the ERA 2025 reforms on the horizon, employers should use this case as a prompt to:

1. Review internal governance around restructuring,
2. Clarify how proposals are formed and recorded,
3. Ensure group companies maintain distinct decision trails, and
4. Prepare for a more stringent, transparency‑driven consultation regime.

For more information on how the ERA will affect your organisation check out our Employment Rights Act 2025 Hub and our short video on the changes to collective consultation Employment Rights Act 2025 Video Series.

Our experts are here to help you manage these challenges with confidence. We combine legal expertise with practical, commercial insight to support clients through every stage of the employment cycle. We are not just lawyers, we are operational partners who work alongside you to anticipate issues, minimise risk, and ensure your organisation is ready for what’s ahead.