Monthly Bulletin – June 2026 – Practical Perspectives

When do collective redundancy consultation obligations arise? Key points for employers

Whenever an employer is proposing multiple redundancies, it is essential to consider whether collective consultation obligations are triggered. Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), the duty arises where 20 or more redundancies are proposed at one establishment within a 90-day period. This requires at least 30 days’ consultation (or 45 days where 100 or more redundancies are proposed).

The risks of getting this wrong are significant—and have increased. Since April 2026, the maximum protective award for failure to collectively consult has doubled to 180 days’ gross pay per affected employee, uncapped. For large-scale exercises, the financial exposure can be substantial.

A key point often overlooked is that “redundancy” is defined broadly. It includes most ‘no-fault’ dismissals, not just traditional redundancy situations. This means dismissals for “some other substantial reason” (SOSR) – for example, business reorganisations – may also count towards the threshold.

Other important considerations include:

• Voluntary redundancies count towards the 20-employee threshold
• Fixed-term contracts are excluded only where they expire naturally; early termination will count
• The threshold is assessed per legal entity, not across a group
• The concept of “establishment” remains key, meaning different sites are generally assessed separately

Employers should also focus on proposed dismissals, not those already completed. In Micro Focus v Mildenhall, the EAT confirmed that the 90-day test is forward-looking – capturing planned redundancies, not historic ones.

Looking ahead, the Employment Rights Act 2025 introduces a potential shift (likely from 2027), with proposals to add a new threshold based on total redundancies across a business, regardless of establishment. The government recently launched a consultation on this proposal, putting forward a preferred option of using a figure trigger only, with the trigger proposed to be between 250-1000 redundancies across a business. Employers should keep a close eye on developments in this area.

Key takeaway: always assess collective consultation obligations early. Failure to comply can result in significant financial penalties, potential uplifts in compensation, and even criminal liability for failing to file an HR1 form.

Transfers and training: alternatives to dismissal – but not without risk

Not every workplace issue is best solved by sanction. Two of the most constructive actions short of dismissal – transfer and training – can protect the employment relationship while addressing root causes. But both can misfire legally and operationally if HR treats them as informal “fixes” rather than contractual interventions.

A transfer (different team, role, or location) can be highly effective for interpersonal conflict, team fit issues, or capability concerns where the employee may succeed in a different environment. Mobility clauses can make relocation transfers easier, and lateral moves can sometimes de-escalate a situation without the finality of termination.

The risks arise where transfer becomes a disguised penalty or is imposed without authority. Compelling a move – especially relocation – without a contractual mobility clause or the employee’s agreement can be a fundamental breach, enabling constructive dismissal arguments. Even where a mobility clause exists, employers must exercise it reasonably: adequate notice, consideration of caring responsibilities, and genuine business rationale all matter. Lateral transfers can also be risky if the new role is materially different in status, duties, or prospects. And operationally, a transfer can simply relocate the problem: performance issues may follow the employee into a new team, creating wider disruption.

Training is often the least contentious intervention, because it signals investment rather than punishment. Additional technical training can address capability; targeted conduct-related training (for example following inappropriate remarks) can demonstrate corrective action and reduce the likelihood of recurrence. It also supports a later dismissal decision if, despite support, standards do not improve.

But training is only effective if it is meaningful and properly recorded. Mandating training perceived as pointless or humiliating can entrench resistance. Timing also matters: training during working hours is usually straightforward, whereas requiring personal time can be contentious unless contractually permitted. HR should document attendance, content, and post-training expectations, then measure improvement against clear review points.

Whether you choose transfer or training, the same best-practice framework applies: proportionality, procedure, paper trail, and monitoring. In tribunal terms, the question is rarely “Did you do something short of dismissal?” It is, “Was what you did a reasonable response, implemented fairly, and grounded in contract or consent?” When HR can answer “yes” to all three, these interventions become powerful tools – not just softer options.

Neurodiversity awareness: What HR needs to know about neurodivergence at work

Neurodiversity Awareness Week took place last month. Its aim is to shift how organisations understand and support neurodivergent individuals. For HR professionals, that aim is not just cultural – it has clear legal implications.

Public debate around rising diagnoses of conditions such as ADHD and autism continues, with some questioning whether these conditions are being over-diagnosed. Late last year, UK Health Secretary Wes Streeting warned that the rising number of diagnoses risked medicalising ‘normal behaviour’, signalling a growing scepticism in some quarters about the expansion of neurodevelopmental labels.

However, from an employment law perspective, this debate is largely irrelevant. The legal question is not whether a condition is fashionable or contested, but whether an employee is experiencing a disadvantage at work – and what reasonable steps can be taken to address it.

“Neurodivergence” is an umbrella term covering conditions such as autism, ADHD, dyslexia and dyspraxia. Many individuals with these conditions will meet the definition of disability under the Equality Act 2010: a physical or mental impairment with a substantial and long-term adverse effect on normal day-to-day activities, such as communication, concentration or social interaction.

Importantly, a formal diagnosis is not required to trigger legal obligations. Tribunals focus on the impact of the impairment, not the label. This is particularly relevant given long NHS waiting times for assessments. If an employee reports ongoing difficulties, the duty to consider reasonable adjustments may already arise.

Case law reinforces this practical approach. In Sherbourne v N Power, a failure to adjust an open-plan working environment for an employee with Asperger’s syndrome amounted to a breach of the duty to make reasonable adjustments. In Jandu v Marks & Spencer, redundancy selection criteria that disadvantaged a dyslexic employee were found to be unlawful. And in Borg-Neal v Lloyds Bank Plc, a dismissal linked to conduct arising from dyslexia led to a significant discrimination award.

For HR, the key is to focus on impact rather than diagnosis. That means:

• Considering reasonable adjustments early, even where a condition is not formally confirmed
• Using occupational health where appropriate to understand workplace impact
• Training managers to recognise and respond to neurodivergence

The duty to make adjustments is not unlimited – employers are only required to take steps that are reasonable in the circumstances. However, failing to engage with the issue at all is likely to create legal risk.

In short, Neurodiversity Awareness Week is a timely reminder that HR’s role is not to arbitrate medical debates, but to ensure workplaces are fair, inclusive and legally compliant.

How to handle a dismissal appeal fairly and effectively

Offering an appeal following a dismissal is only half the story. How you handle it can determine whether an otherwise fair dismissal stands – or falls.

The Acas Code of Practice makes clear that appeals should be conducted without unreasonable delay and handled impartially. In reality, the appeal stage is often the employer’s final opportunity to correct procedural flaws and demonstrate overall fairness.

The starting point is to understand the grounds of appeal. Is the employee challenging the decision itself, raising concerns about the process, or presenting new evidence? Clarifying this early will help determine whether the appeal should be a review of the original decision or a full rehearing.

The choice matters. A review focuses on whether the original decision was reasonable based on the available evidence. A rehearing, by contrast, involves reconsidering the case from scratch. Where there are allegations of bias or serious procedural defects, a rehearing is often the safer option.

Equally important is selecting the right appeal manager. The Acas Code recommends appointing someone not previously involved and, ideally, more senior. While some prior involvement will not automatically invalidate the process, independence and objectivity are critical.

Preparation is key. The appeal manager should have access to all relevant documentation, including the investigation report, disciplinary notes and outcome letter. They should understand their role and the scope of the appeal before the hearing begins.

During the hearing itself, fairness and professionalism are essential. The appeal manager should:

• Clearly explain the purpose and structure of the meeting
• Give the employee a full opportunity to present their case
• Properly consider any new evidence
• Ask neutral, clarifying questions

A common mistake is treating the appeal as a formality or “rubber-stamping” exercise. This approach is risky. In Milrine v DHL, a dismissal was found unfair because the employer failed to properly carry out the appeal process – even though the earlier stages were sound.

Ultimately, the appeal must be a genuine reconsideration. When handled well, it can rescue an otherwise flawed process. When handled poorly, it can undo even the strongest case.

And finally, sometimes the factual background to a tribunal claim sounds like it has come straight out of high school. Billings v Nestle UK is one of those claims. The fire alarm had gone off at the factory where Mr Billings worked, requiring a full evacuation. An investigation into the cause of the fire alarm concluded that somebody had been vaping in the toilets. Nestle alleged that that somebody was Mr Billings. If this had been High School, Mr Billings would no doubt have received a detention, nothing more. However, this being employment (and in a factory environment), he was dismissed for gross misconduct. The tribunal held that Mr Billings had been unfairly dismissed:

• The disciplinary officer was more concerned about Mr Billings’s lack of apology than the vaping itself. He openly acknowledged that, if Mr Billings had admitted the conduct, he would not have been dismissed. The tribunal concluded that “failing to apologise or to accept responsibility is not misconduct”. The employer should not have relied upon it.
• Dismissal fell outside the range of reasonable responses available, given that this was a single isolated act in an otherwise unblemished career.
• The employer had no policy which specifically said that vaping at work would be regarded as gross misconduct.

There are lessons to be learnt by employers from this high school-worthy situation:

• If vaping at work is really that much of an issue, you should make that crystal clear in your policies
• Length of service and a clean disciplinary record can be important factors when considering whether summary dismissal is an appropriate sanction in response to alleged gross misconduct.
• Disciplinary officers should stick to the allegations in front of them and not get distracted by irrelevant points such as, in this case, the lack of an apology.