Mr James Mildenhall

Judgment approved by the court for handing down Micro Focus v Mildenhall © EAT 2025 Page 1 [2025] EAT 188 Neutral Citation Number: [2025] EAT 188 Case No: EA-2023-001030-AT EMPLOYMENT APPEAL TRIBUNAL Rolls Building Fetter Lane, London, EC4A 1NL Date: 19 December 2025 Before : MICHAEL FORD KC, DEPUTY JUDGE OF THE HIGH COURT - - - - - - - - - - - - - - - - - - - - - Between: MICRO FOCUS LIMITED Appellant - and – MR JAMES MILDENHALL Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Christopher Milsom (instructed by Trowers and Hamlins LLP) for the Appellant Mrs Sarah Hornblower (instructed by TJD Law) for the Respondent Hearing date: 17 September 2025 - - - - - - - - - - - - - - - - - - - - - JUDGMENT Amended Judgment approved by the court for handing down Micro Focus v Mildenhall © EAT 2025 Page 2 [2025] EAT 188 SUMMARY REDUNDANCY The employment tribunal held that the respondent was in breach of the duty in s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) to consult appropriate representatives when “proposing” to dismiss 20 or more employees as redundant within 90 days, implementing Directive 98/59/EC. In light of the decision of the Court of Justice in UQ v Marclean Technologies [2022] IRLR 548 on the Directive, the tribunal directed itself that an employer who proposed fewer than the threshold number of dismissals within 90 days was subject to the obligation to consult if it subsequently proposed additional dismissals within a period of 90 days (so making the total employees to be dismissed 20 or more). It also held that the respondent operated as the “de facto” employer of the employees whom it was proposed to dismiss as redundant for the purpose of the duty in s.188 and made a protective award of 90 days’ pay. Finally, the tribunal he...