Welcome to the first edition of Thompsons Labour and European Law Review produced by our Employment Rights Unit. The Review is a monthly commentary and analysis of key developments in the fields of equal rights, employment, trade union and industrial relations law in the UK and Europe.

Why do you need a Labour and European Law Review? Because of the importance of the issues, and the volume of case law and legislative changes. It is a complex, exciting and, at times, fast moving area.

Used well, the law can be a friend in the workplace. Trade unions and their members have won significant victories in recent years by strategically and skilfully using the law to their advantage. But you need to be informed and up to date.

The Review will report issues of particular relevance and interest to trade unions and their members to help keep you up to date with key cases and developments.

The authors of the articles form part of the Thompsons Employment Rights Unit which brings together our expertise in discrimination, labour and european law. The unit is dedicated solely to working with trade unions on those issues. The ERU consists of a team of lawyers in Congress House, London, complemented by a network of lawyers in our regional offices. Professor Brian Bercusson, Director of our European Law Unit, is part of the team.

This month the Review focuses on the Consultation Regulations on redundancies and transfers of undertakings and the implications of the judgment in the judicial review challenge. There are also features on discrimination on grounds of sexuality, TUPE - an area of profound significance - and recent developments on equal pay.

We hope you enjoy the Review. We would welcome your comments. Please contact your nearest Thompsons office if you would like further information on the issues raised, or know of anyone else who wishes to receive a copy which is free to our friends and colleagues in the trade union movement.

Stephen Cavalier HEAD OF THOMPSONS EMPLOYMENT RIGHTS UNIT 

Employers: duty to consult

Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995

In judgment on a judicial review the High Court highlighted an employer's primary duty to consult over redundancies and transfers of undertakings and said Department of Trade and Industry guidance will have to be rewritten to take account of its criticisms. It went on to emphasise that if employers do not follow the guidelines of the Court they are likely to be in breach of their obligations under the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995.

But the High Court rejected the GMB and NASUWT (represented by Thompsons) and UNISON (represented by its legal department) judicial review challenge that the Regulations were unlawful.

The unions argued that the Regulations did not comply with European law, failed properly to implement the Collective Redundancies and Acquired Rights Directives and did not take full account of European Court judgments made against the UK on consultation rights.

In a judgment delivered on 15 May 1996, the High Court said the Government was acting lawfully in restricting the obligation on employers to consult staff only to cases where there were 20 or more redundancies. It was also acting lawfully in excluding those with less than two years' service from bringing unfair dismissal claims when there is a transfer of an undertaking. It rejected arguments that the Regulations discriminated unlawfully against women.

The Court emphasised the positive obligations placed on employers by the Regulations, and in particular the employer's primary obligation to consult.

If the employer fails to consult with appropriate representatives or to invite an election of appropriate representatives, individual employees can bring a complaint to an Industrial Tribunal. This means that if no representatives are elected and the employer has not informed every affected employee of the right to elect representatives, the employer is in breach of the law.

Although the court held that the Regulations did not have to set out detailed procedures for the election of employee representatives, the question of whether representatives are "appropriate" was held to be an objective test. This means the "appropriateness" of representatives can be challenged at a Tribunal. If the Tribunal accepts that the representative was not appropriate, this would mean there had been no valid consultation. The judgment did not deal adequately with the issue of the independence of the representatives elected by employees. But European law does require representatives to be independent of, and free from interference, domination or constraint by the employer. The independence issue is likely to be of particular concern to the European Commission which is currently considering a complaint against the UK Regulations.

A number of aspects of the High Court decision are flawed. Despite the positive aspects of the decision there remain serious deficiencies in the legislation. The unions have submitted an appeal to the Court of Appeal.