At least other Europeans think so, with the British Government forced into fresh Regulations which guarantee employers must consult with staff over collective redundancies and transfers of undertakings.

The collective redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 may yet prove to be a temporary curiosity in the history of employee consultation. That depends on developments in the Court of Appeal, Europe or the General Election. In the meantime, the defects in the Regulations, combined with the interpretation given by the High Court (see Employers: duty to consult, this issue) means an employer who chooses to by-pass unions and consult with "appropriate representatives" faces legal uncertainty.

The history: the regulations were adopted in response to a series of European Court judgments against the UK. The Court said UK law did not comply with European law because it let employers avoid consultation on redundancies or transfers by derecognising or refusing to recognise a union.

Predictably the Government has responded by trying to sideline trade unions. The UK Regulations seek to establish a situation where an employer may choose to consult either with a trade union or with elected representatives, even where a trade union is recognised. The Regulations have a number of defects and do not appear fully to comply with European law. The High Court recently rejected a challenge to the legality of the Regulations, but in doing so gave guidance on their interpretation which can be put to positive use by unions (see Employers: duty to consult, this issue).

What the regulations say: the Regulations apply to all employers whenever there are 20 or more redundancies in a workplace or where there is a transfer of an undertaking. They can choose to consult either the union or "appropriate representatives". Following the High Court judgment, the question of whether representatives are "appropriate" is not merely a decision for the employer - it is an objective test.

Challenging the employers over "appropriate representatives": if the employer chooses to by-pass the union and consult with representatives who are not "appropriate", this can be challenged at an Industrial Tribunal. This is particularly important because the Regulations provide no guidance on how elections should be conducted, how many representatives should be elected or how the constituencies should be determined.

Nor do they provide that representatives must be independent or free from interference or constraint by the employer, the implicit requirement of European law.

But an employer who opts for an "appropriate representative" consultation rather than consultation with unions steps into an as yet uncharted minefield and is open to legal challenge.

The right to challenge consultation with an inappropriate representative is an important one - and it can be exercised by an individual employee. It should make employers very wary of consulting with elected representatives in preference to a union because a successful challenge at a Tribunal puts the whole consultation process back to square one.

The electorate: who can elect "appropriate representatives"? In the case of redundancies the representatives must be elected by the "employees who may be...dismissed". On transfers they must be elected by employees who may be affected by the transfer.

It will not be easy to define these constituencies accurately. In a redundancy situation, if the employer decides there may be redundancies in shop A and invites the staff within that shop to elect representatives, the consultation must be with a view to reaching agreement and avoiding those redundancies. If the consultation process leads to the possibility of redundancies in shop B instead, those redundancies cannot take place without consultation with the staff in shop B, so it is back to square one to elect representatives of those employees - or risk a Tribunal.

If, on the other hand, the employer had consulted from the outset with representatives elected jointly by shops A and B, those representatives may not have been "appropriate" if it was in reality only the employees in shop A who "may be dismissed" at the point the consultation took place.

Invitation to elect: employers cannot avoid consultation. They are under a primary obligation to consult. They could only get away with not consulting if there are no elected representatives after they had invited the employees to elect them "long enough before the time the consultation is required to begin". This must mean an invitation communicated to every employee who would be entitled to vote in such an election.

The election: if an employer opts for an "appropriate representative" election, they also have the difficulty of how the election should be conducted. There is no guidance on this.

The employer must ensure that only those entitled to vote are given the opportunity to do so. That must include those off sick or on holiday. Both workplace and postal ballots raise potential difficulties, as do situations involving groups of companies where employees of each company affected must elect representatives employed by that employer.

Although the Regulations leave the timing and the conduct of the election potentially up to the employer to decide, employers may find this an unwelcome freedom. The consultation must begin "in good time" before the redundancies or transfer.

Any election process may be vulnerable to challenge, on grounds of the number of representatives allowed, the number of candidates, voting methods, canvassing, facilities for candidates and voting constituencies.

Staff councils: the Regulations allow for consultation with a staff council or other body which is "regularly informed or consulted about the employer's financial position and personnel matters". This can be challenged if the body is not "appropriate" and employers are particularly vulnerable if the body is elected by the whole workforce when only a part of the workforce are likely to be affected by the transfer or redundancies.

The consultation period: the election process will prolong the consultation period required as the statutory period for consultation cannot begin until there are representatives to inform and consult. The employer will be hampered in taking steps which will affect the redundancies or transfer while the election is taking place, at the risk of criticism for presenting the elected representatives with a foregone conclusion and not consulting "with a view to reaching an agreement".

Taking the initiative: the Regulations do not say that any election must be organised by the employer. They merely provide that the representatives must be elected for the specific purpose of dismissals proposed by him.

In many cases employers can no doubt be persuaded that consulting through elected representatives is a legal minefield and consultation with the union is the most appropriate (and less risky) option. In other situations, and certainly where no union is recognised, there may be advantages in the union and/or employees initiating the election, notifying the outcome to the employer and requiring him to consult with their elected representatives or face a challenge.