Soundbite: Collective consultation, employers need to consider earlier than you might think
Collective consultation, employers need to consider earlier than you might think
A recent Employment Appeal Tribunal decision offers an important reminder for employers managing potential redundancies, particularly as collective consultation obligations are set to tighten further under the Employment Rights Act.
In Ellard and others v Alliance Transport Technologies Ltd [2025], the EAT confirmed that an employer can be “proposing to dismiss” employees for collective redundancy purposes even where plans are not yet final and alternative options are still being explored.
The central question is whether, at a particular point in time, the employer was proposing to dismiss 20 or more employees within a 90‑day period. Crucially, a proposal can exist even if:
- other options remain under consideration, and
- the final outcome has not yet been confirmed.
What matters is the reality of the situation, not how confidently or publicly the proposal has been expressed. In this case, the evidence showed that a business sale was no longer realistically achievable and that closure had become the intended objective. That provisional intention was enough to trigger collective consultation duties, and the failure to consult resulted in a 90‑day protective award.
This decision closely reflects the direction of travel under the Employment Rights Act. From April 2026, the maximum protective award has already doubled from 90 to 180 days’ pay per affected employee, significantly increasing the financial risks of getting collective consultation wrong.
Key takeaway for employers
If redundancies are a realistic possibility, even at an early or contingent stage, collective consultation should be firmly on your radar. Waiting for certainty may be too late and could result in substantial financial exposure.
If you would like advice on collective consultation, redundancy planning, or preparing for the upcoming changes under the Employment Rights Act, please get in touch with a member of our team.