The EAT gives direction in the Marclean conundrum!

Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), provides that collective consultation must take place when an employer proposes to dismiss 20 or more employees in a 90-day period in one establishment.  However, Section 188(3) TULRCA goes on to state that in determining how many employees an employer is proposing to dismiss as redundant, no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.  This provision was generally understood to mean that when determining the number of employees, an employer must only consider future dismissals.
 
The ECJ decision in UQ v Marclean Technologies SLU (which remains as assimilated EU case law), however, threw Section 188(3) into doubt as the court judged that when deciding if redundancy dismissals meet the threshold to trigger collective consultation, employers must consider all redundancy dismissals occurring in a 90-day rolling period taking into account any dismissals already actioned, or where consultation was underway.
 
In Micro Focus v Mildenhall, the EAT has ruled that the Marclean case does not affect the interpretation of Section 188(3) TULRCA, and the focus should be on what the employer is proposing for the future. Nevertheless, is it is not a slam dunk that the EAT’s interpretation of Marclean would survive the scrutiny of a further appeal, or that a different EAT would take a different view, and so employers should continue to take a cautious approach, especially in light of the increase to the protective award for failure to collectively consult from 90 to 180 days’ real pay for each affected employee, which will come into force in April this year.