This case highlights how a redundancy consultation tribunal decision can shape expectations around fairness, selection and decison-making in practice.

The Employment Appeal Tribunal’s decision in Micro Focus Ltd v Mildenhall provides a clear illustration of how early decision-making, redundancy pooling and consultation timing are scrutinised in practice, even where employers believe they are acting within the law.

For employers and HR professionals, the case is a useful reminder that redundancy risk rarely turns on one technical point alone. Tribunals look closely at how decisions are formed, when they crystallise, and whether consultation genuinely has the chance to influence the outcome.

 

Background

Micro Focus Ltd undertook a significant cost-saving exercise, which resulted in organisational restructuring across the business. The changes included team consolidation and role realignment as part of a broader effort to reduce costs.

The claimant, Mr Mildenhall, held a senior role within the organisation. As part of the restructure, his role was identified as being at risk following a decision to combine responsibilities across teams. Another individual was appointed to lead the consolidated role, and Mr Mildenhall was subsequently dismissed by reason of redundancy.

The employer maintained that:

• collective redundancy consultation obligations were not triggered, and
• the redundancy process was fair and reasonable at an individual level.

No collective consultation took place. The claimant challenged both the absence of collective consultation and the fairness of the redundancy process itself. He argued that decisions had been made before consultation began and that the approach to selection and pooling was flawed.

 

Tribunal Findings

 

Collective consultation

The employment tribunal originally found that the employer had breached its duty to collectively consult and made a maximum protective award.

On appeal, the Employment Appeal Tribunal clarified how collective consultation obligations should be assessed. In particular, it confirmed that the legal test focuses on what the employer was proposing at the material time, rather than relying solely on a retrospective count of dismissals that later occurred.

The EAT emphasised that:

• collective consultation obligations are triggered by proposals for future dismissals,
• a proposal is not necessarily a single moment in time and may evolve, and
• tribunals must determine, as a matter of fact, whether the employer was proposing to dismiss the relevant number of employees within the statutory period.

The EAT found that parts of the tribunal’s reasoning were flawed and remitted aspects of the collective consultation issue to be reconsidered. Importantly, however, it reinforced that tribunals will closely examine evidence of intent, planning and decision-making, rather than accepting employer characterisations at face value.

 

Fairness of dismissal

While the collective consultation issue was remitted, the EAT upheld the tribunal’s finding that the claimant’s dismissal was unfair.

The tribunal concluded that:

• the employer had failed to properly consider an appropriate redundancy pool,
• key decisions appeared to have been made behind closed doors, and
• consultation took place after outcomes had effectively been decided.

The consultation process was found to lack transparency and did not provide the claimant with a meaningful opportunity to influence the decision. As a result, the dismissal fell outside the range of reasonable responses open to an employer.

 

Key Takeaways from a Redundancy Consultation Tribunal Decision

This redundancy consultation tribunal decision highlights how tribunals assess fairness, consultation timing and decision-making during restructuring.

 

For employers

• Early decisions carry weight. Tribunals will examine when decisions were effectively made, not just when formal processes began.
• Consultation must be genuine. If consultation is perceived as confirming a decision rather than shaping it, it is unlikely to be viewed as fair.
• Redundancy pooling matters. Employers should be able to demonstrate that they actively considered who should be included in the redundancy pool, even where roles appear unique.
• Evidence is critical. Assertions about what was or was not proposed carry less weight without clear documentation.

 

For HR professionals and independent consultants

• Professional judgement is central. This case reinforces the importance of challenging assumptions and testing whether decisions are still genuinely open.
• Timing is everything. Consultation that begins after key decisions are settled is unlikely to meet fairness expectations.
• Clarity supports credibility. Clear records of proposals, rationale and decision pathways help demonstrate that processes were thoughtful and defensible.
• Influence happens early. HR’s role is often most impactful before decisions harden into outcomes.

 

Practical Reminders

• Document when proposals are formed and how they change over time.
• Avoid informal or undocumented decision-making ahead of consultation.
• Sense-check redundancy pools, even where only one role appears affected.
• Remember that tribunals assess substance and behaviour, not just process labels.

These steps do not guarantee the absence of risk, but they significantly reduce the likelihood of decisions being viewed as unfair or pre-determined.

 

What Employers and HR Professionals Can Learn from This Case

What stands out in Micro Focus v Mildenhall is not simply how the law was applied, but how organisational pressure shaped decision-making long before formal processes began.

Redundancy decisions rarely happen in a single moment. They often develop through a series of discussions, assumptions and informal agreements. Over time, these can solidify into outcomes that feel inevitable, even before consultation formally starts. When that happens, consultation risks becoming a procedural step rather than a genuine opportunity to explore alternatives.

This case illustrates how tribunals look beyond surface-level compliance. They examine whether consultation was capable of influencing decisions, whether pooling was approached with an open mind, and whether HR had the opportunity to challenge or test emerging conclusions.

For employers, this reinforces the importance of transparency and discipline in how restructuring decisions are formed and communicated. For HR professionals and independent consultants, it underlines the value of professional judgement, early intervention and calm challenge, particularly when commercial pressures are high.

This redundancy consultation tribunal decision reinforces how closely tribunals examine intention, timing and professional judgement during restructuring.

Ultimately, the case serves as a reminder that fairness is not only about following the correct steps. It is about how decisions are reached, when they are made, and whether people affected by them are given a genuine voice in the process. These are the moments where good HR practice protects both organisations and individuals.

Full judgement.