Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Micro Focus Limited and Mildenhall, in which the Employment Appeal Tribunal was asked to clarify the correct 90-day reference period for collective consultation in redundancy situations. Where 20 or more redundancies are proposed within 90 days at one establishment, the employer must collectively consult with appropriate representatives of affected employees. On a strict interpretation of the legislation, where an employer has already started consultation in relation to proposed redundancies, and further redundancies are later proposed, the initial batch of redundancies is ignored and not counted unless the employer has acted in bad faith. However, in the case of UQ and Marclean Technologies SLU, which is assimilated EU case law, the Court of Justice of the European Union has previously held that employers proposing redundancies must look both backwards and forwards in time in order to determine whether there are or will be 20 or more dismissals in the 90-day reference period. The Employment Appeal Tribunal recently considered, for the first time whether an employment tribunal had erred when it considered itself bound by the Marclean decision. In this case, following a major restructure of his employer in which he was made redundant, M brought various claims including a claim for a protective award for failure to collectively consult. The Employment Tribunal held that a company spreadsheet linked to the restructure showed around 45 employees at a single establishment were to be made redundant and that the company's proposal to make those employees redundant had crystallised in early January 2022, over six months before M was dismissed as redundant. Relying on the Marclean decision, the Tribunal concluded that the employer had failed in its duty to collectively consult and made a protective award of 90 days' pay to M. The employer appealed. The Employment Appeal Tribunal upheld the employer's appeal and held that the Tribunal had misapplied the Marclean decision. The Employment Appeal Tribunal clarified that the Marclean decision does not require employers to look backwards and forwards over a 90-day period when determining whether the collective redundancy consultation obligations are triggered, as the Marclean decision had not considered whether an employer was contemplating dismissals for the purposes of the underlying EU directive. It does not affect the proper interpretation of proposing to dismiss, which triggers the requirement for collective consultation in our domestic law. Therefore, the Tribunal had erred when it directed itself that employers proposing redundancies must look backwards and forwards for 90 days to determine whether the duty to collectively consult is triggered. Under our domestic law, the collective consultation duty is triggered by a forward-looking question. The key focus is on the employer's future proposals, not on how many dismissals occurred or were proposed when viewing the situation retrospectively. The decision provides welcome clarification that the Marclean decision does not require an employer proposing redundancies to look both forwards and backwards over a 90-day period on a rolling basis when determining whether the duty to collectively consult has been triggered. Only the employer's future proposals for redundancy dismissals will count in determining whether it was proposing the threshold number of dismissals within the relevant period. Look out for further episodes in this series to stay up to date on all things HR and employment law related.