Redundancy selection predetermined: a manager's unfair dismissal win
A Business Intelligence Manager with six years' service has won his unfair dismissal claim after his employer decided his fate before consulting him. The tribunal awarded over £117,000 in compensation and a protective award for failing to collectively consult.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was a Business Intelligence Manager employed by Micro Focus Ltd from 1 December 2015.
- In September 2021, a large-scale reorganisation aimed at reducing costs by 50% was announced.
- The claimant's role was consolidated with another employee, David De Nazareth, and the decision to give the role to Mr De Nazareth was made before any consultation.
- The respondent did not consider pooling the claimant and Mr De Nazareth for redundancy selection.
- The respondent failed to collectively consult as required by s.188 TULR(C)A, as it proposed to dismiss 20 or more employees within 90 days.
- The claimant was dismissed on 29 July 2022 for redundancy.
Timeline
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Claimant re-employed
Mr Mildenhall started employment as Business Intelligence Manager.
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Reorganisation announced
A large-scale reorganisation across Support Operations was announced, aiming to reduce costs by 50%.
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Meeting with Mr Luthersson
Mr Luthersson informed the claimant that either he or Mr De Nazareth would run the consolidated team.
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Decision communicated
Mr Luthersson told the claimant that Mr De Nazareth would manage all 'Go To Market' reporting going forward.
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First dismissal in 90-day period
The first dismissal within the relevant 90-day period occurred, triggering the protective award period.
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Formally placed at risk
The claimant was formally placed at risk of redundancy in a meeting with Mr Luthersson and Ms Friend.
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Redundancy decision communicated
The decision to make the claimant redundant was communicated to him.
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Dismissal date
The claimant was dismissed by reason of redundancy.
The legal issue
The tribunal had to decide whether the claimant's redundancy dismissal was fair, and whether the respondent was obliged to collectively consult under s.188 TULR(C)A.
The outcome
The tribunal upheld the claimant's unfair dismissal claim and also found that Micro Focus Ltd had failed to collectively consult as required by law.
- The claimant was awarded a compensatory award of £63,890.46 (gross), reduced by 35% for Polkey (the chance he might have been dismissed anyway).
- A protective award of £53,742 (gross) was made for 90 days due to the failure to collectively consult.
- Total compensation: £117,632.46.
Lessons & takeaways
- Employers must not decide the outcome of a redundancy selection before consulting the affected employee — a pre-determined process will almost certainly be unfair.
- When two roles are consolidated, the employer should consider pooling both employees for selection, rather than simply choosing one to retain.
- If an employer proposes to dismiss 20 or more employees within 90 days, collective consultation obligations under s.188 TULR(C)A are triggered, and failure to comply can lead to a protective award.
- A 'pool of one' can be fair in some circumstances, but only if the employer genuinely considers the selection criteria and consults properly.
When a redundancy decision is made before consultation
This case shows how a redundancy process can go wrong when the employer decides who will stay before any meaningful consultation takes place. The claimant, a Business Intelligence Manager with six years' service, was told in January 2022 that his role was being consolidated with another employee's. By that point, his manager had already decided the other employee would run the combined team. The formal consultation that followed was a rubber-stamping exercise.
The tribunal found that Micro Focus Ltd had predetermined the outcome. The decision to retain the other employee was made before the claimant was even placed at risk of redundancy. This meant the consultation was not genuine, and the dismissal was unfair.
What the employer could have done differently
Micro Focus Ltd could have avoided this outcome by properly pooling the two employees for selection and consulting with the claimant before deciding who would be retained. Instead, they treated the redundancy selection as a foregone conclusion. The tribunal also found that the company had failed to collectively consult under s.188 TULR(C)A, as it proposed to dismiss 20 or more employees within 90 days. This failure led to a protective award of 90 days' pay.
Why this matters for similar claims
This case is a reminder that redundancy processes must be genuine and transparent. Employers cannot simply decide the outcome and then go through the motions of consultation. For employees, it shows that a 'pool of one' or a predetermined selection can be challenged, especially when the employer fails to consider alternatives or consult properly. The substantial compensation awarded reflects the seriousness of the failings.
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