The Respondent is a large international IT company. The Claimant was employed by the Respondent until he was dismissed by reason of redundancy. He brought claims in the ET for unfair dismissal and for a protective award under s.188 of TULRCA. The Respondent denied the claims. The ET ruled there was enough evidence before it to reach a conclusion that on the balance of probabilities there was a proposal to dismiss more than 20 employees of the Respondent, within a 90 day period and as such, section 188 imposed a duty on the Respondent to collectively consult with affected employees including the Claimant. The parties were in agreement that there was no collective redundancy consultation undertaken. The ET also found that the Claimant's dismissal was unfair for two reasons: first, the Respondent had unreasonably not considered placing both the Claimant and a colleague in a pool; second, the consultation had been pre-determined, meaning that the Claimant could not adequately respond to it, and he was not given adequate information. The Respondent appealed.

The EAT allowed the appeal in part. (1) The ET had misdirected itself in relation to Marclean. Properly analysed, Marclean was not about whether an employer was “contemplating” dismissals for the purpose of Article 2 of Directive but about the meaning of “collective redundancies” in Article 1. Consequently, it did not affect the proper interpretation of the “proposing” in s.188 of TULRCA, the domestic concept corresponding to “contemplating” in the Directive. In any case, it was not possible to interpret “proposing” in s.188 TULRCA as the ET did in reliance on its reading of Marclean. (2) The duty in s.188 is owed by an employer when it is proposing to dismiss 20 or more employees, meaning those individuals who have a contract of employment with it. In the context of a corporate group, the Directive also places the obligation to consult on the relevant company with the status of employer. The ET therefore erred in considering that the thresholds in s.188 were met because the respondent acted as the “de facto” employer for all UK staff when there was evidence that some of those individuals were or may have been employed by discrete legal entities. The ET did not err in other respects.