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Employee consultation Employee

consultation
Malcolm Sargeant
Middlesex University Business School, London, UK
Keywords Equal opportunities, Management, Employees
483
Abstract Concerns the current and proposed mandatory requirements for employers to
collectively consult those who work for them. Shows that the rhetoric in favour of consultation as a Received February 2001
process of co-operation in the mutual interests of both employers and employees can lead to weak Revised May 2001
and ineffective legislation. Rather than having a model of mutuality of interests, it might be Accepted May 2001
necessary to adopt a conflictual model, where mandatory consultation is seen as imposing
obligations on employers and giving rights to employees.

Employee consultation
This article concerns the current and proposed mandatory requirements for
employers to collectively consult those who work for them. The purpose is to
show that the rhetoric in favour of consultation as a process of co-operation in
the mutual interests of both employers and employees can lead to weak and
ineffective legislation. Rather than having a model of mutuality of interests, it
might be necessary to adopt a conflictual model, where mandatory consultation
is seen as imposing obligations upon employers and giving rights to employees.
The article first considers some aspects of the partnership approach and
whether it is a satisfactory approach when considering legislation. Second, it
examines a number of well-publicised failures in the consultation process as
well as the current mandatory requirements to consult. The approach of the
European Community and that of other Member States is then considered
together with the proposed European Directive on information and
consultation procedures. It ends with the conclusion that the proposals
represent a real limitation on management freedom of action and a recognition
of this will enable future legislation to be more effective than to date.
Although various statutory provisions define consultation in specific terms,
the definition adopted by Glidewell LJ in R v. British Coal provides a
framework:
Fair consultation means:
(a) consultation when the proposals are still at a formative stage;
(b) adequate information on which to respond
(c) adequate time in which to respond
(d) conscientious consideration by an authority of the response to consultation.

Partnership
In 1997 the European Commission issued a Green Paper (European
Commission, 1997) intended to stimulate debate on new forms of work
organisation. For the Commission the key issue was achieving the balance
between ``flexibility and security''. The role of the social partners was crucial to Employee Relations,
Vol. 23 No. 5, 2001, pp. 483-497.
achieving this balance. For management this meant that: # MCB University Press, 0142-5455
Employee . . .the challenge is to achieve a fundamental review of their organisation in such a way that
they can create a climate of trust and partnership, based on the concepts of flexibility and
Relations security.
23,5
For trade unions it meant that:
. . .the challenge is to ensure that they exercise a constructive and active role in the innovation
and modernisation process within the firm and so achieve a sustainable balance between their
484 social and economic objectives.

Consultation with employees is sometimes, therefore, seen as a way of

involving employees in a climate of trust and partnership, which will lead to
employees' exercising a constructive and active role in the undertaking. Central
to this relationship is the issue of trust (see Marchington and Wilkinson, 2000).
This develops, presumably, out of the partnership of interests between
employer and employee. Those advocating this sort of partnership/
participation approach, it has been suggested (see Marchington, 1998), employ
a ``win-win'' perception of power in which both the employer and the employees
gain from the approach. The objectives of participation have been suggested
(Markey and Monat, 1997) as, first, the sharing of power between management
and workers in an enterprise; second, as effective co-operation, between all
members of the enterprise, in the interests of efficiency and industrial peace;
and, third, as the personal fulfilment of the members of the enterprise, which
also raises workforce morale and contributes to efficiency. It is the way that
this participation is achieved that perhaps distinguishes different approaches,
e.g. three models proposed by Guido Baglioni are those concerned with
``antagonistic participation'', ``collaborative participation'' and ``integrative
participation''. The argument in this article is that it is the last of these
approaches that has shaped legislation concerning mandatory consultation and
that this is a reason why it has proved ineffective.
The EPOC[1] project was an investigation into the degree to which
management was using direct participation and other new forms of work
organisation as a means of improving business performance. The key features
of this direct participation are consultation and delegation. Consultation can be
both individual consultation and group consultation. Such group consultation
can consist of either temporary or permanent groups. The survey showed that
four out of five workplaces had at least one form of direct participation and that
all forms of direct participation were considered to have a strong impact on
economic performance (see Sisson, 2000). There is also, however, much
divergence in approach between member states, e.g. the proportion of
workplaces without any coverage by collective agreement and without any
workforce representation varied between a high of 32 per cent in the UK and
Ireland to lows of 1 per cent in Spain and Sweden (see Krieger and O'Kelly,
1998).
Many employers in the UK have an apparent commitment to information
and consultation, but often this is after decisions have been made. In a survey
by Nabarro Nathanson (1996) employers were asked about their level of
commitment to worker consultation. The most common view was that Employee
employers would inform employees after having made the decision to take a consultation
particular course of action, but before implementing it. The results were that
employers would be prepared to consult:
. when decisions had been made and plans are about to be developed ± 55
per cent;
485
. once decisions had been confirmed and plans put in motion ± 24 per cent;
. before decisions are made ± 15 per cent;
. cannot say ± 6 per cent.
The report also revealed some confusion and ignorance among a minority of
employers about what were the statutory requirements at the time.
Consultation is regarded as some sort of management tool. Partnership is
achieved by management exercising its prerogative and then inviting the
workers to participate by discussion. This confusion about different types of
consultation is shown in the TUC document New Unionism in the Workplace
(TUC, 1999). This defined what the TUC meant by partnership at work:
. a shared commitment to the business goals of the organisation;
. clear recognition of the differences and priorities of the partners;
. flexibility of employment must not be at the expense of employees'
security;
. partnership must improve opportunities for personal development of
employees;
. open and well informed consultation, involving genuine dialogue;
. should add value by raising employee motivation (see Brown, 2000).
It has been suggested that characteristics of the new partnership agreements
are that they (Bacon and Storey, 2000):
. were reached after an extensive process of preparation and analysis;
. are usually far reaching in scope;
. commit the parties to the needs of the business;
. are novel in their extensive revisions to custom and practice;
. give considerable recognition and security to trade unions;
. give worker reps access to business information and plans;
. give union representatives a say in important operational matters.
Both these lists reveal a combination of purposes for consultation. The first is
the involvement and participation approach, which is characterised by
statements such as ``committing the parties to the needs of the business'', ``a
shared commitment to the business goals of the organisation'' and ``adding
value by raising employee motivation''. The second is characterised by
Employee ``recognising the differences in the priorities of the parties'' and ``giving union
Relations representatives a say in operational matters''. This latter approach may be a
23,5 recognition of the different interests of the parties in certain consultation
situations and may require a different legislative approach than that applied to
consultation generally.
One might question why, if there is such extensive participation, there is a
486 perceived and continuing need to introduce rules on mandatory consultation. It
is suggested here that this is because there is a widespread abuse of the word
``consultation'' and that the forms of information giving and consultation
envisaged are not what are traditionally regarded as consultation. Consultation
as a management tool is something that is likely to take place within an
organisation. The success of mandatory consultation may imply the ability to
add other parties such as Government or the wider trade union movement to
the debate and thus take the consultation into a wider sphere (see below for an
illustration of this, when there was a lack of consultation with regard to BMW/
Rover, Vauxhall etc.).
One of the interesting issues, when examining the degree to which workers
are involved in the enterprise for which they work, is to what extent one can
separate the political and economic context within a country (Mason, 1982).
The classical liberal approach asserting that there is a division between the
political and social spheres is difficult to sustain when the structure of the
economic sphere is so closely controlled and constructed by political influences.
As is suggested later in this article the initiatives on worker involvement by the
European Community stem from the political and economic systems in the
majority of the member states. These have a strong post-war tradition of social
partnership and social dialogue between employers, workers and government.
This has long influenced the Community's initiatives. This is a tradition that is
much weaker in the United Kingdom and the election of the Conservative
Government in 1979 may have been the beginning of a significant divergence
in approach between the UK and the rest of the European Community. If one
assumes that two models of controlling an enterprise are a collective
bargaining model and a co-operation model, the UK and, perhaps, Ireland
would reflect the former. Collective bargaining assumes a conflictual approach
with two sides arriving at an agreement by conflict and compromise. The co-
operation model would suggest a partnership approach which would involve
all sides in the decision-making process at an earlier stage. It is the latter
approach which influences many other member states of the EU and which, in
turn, influences the policies of the European Community.
None of these approaches is entirely satisfactory and there needs, perhaps, to
be more of a one-dimensional approach to describing the likely outcome of the
proposed new consultation requirements. If one looks at the issue as a one-
sided issue, then one can describe a type of participation which is purely in the
interests of one party, namely the workers in an enterprise. It is a one-sided
model of participation that places obligations upon employers and gives rights
to employees. These rights consist of adequate information, time to consider
that information and the right to have their views seriously considered by the Employee
employer. Mason (1982) suggests that there are five dimensions which provide consultation
the basis by which the degree of democracy in any community, including the
workplace community, can be assessed. These are extensity (which workers
participate), scope (the range of issues available for participation), mode (the
manner in which workers participate), intensity (the degree of involvement)
and quality (the impact on the decision). It is suggested here that these can be 487
achieved to a high degree by mandatory consultation, which gives rights to
workers so that they may protect their interests as distinguished from the
interests of the organisation. The need for such an approach may be
highlighted by some failures of the existing consultation requirements.

Failures
There have been a number of well-publicised failures among organisations
going through periods of significant structural change, when they have failed
to meaningfully consult the workers affected, despite the existence of a
European Directive on European Works Councils.
On 28 February 1997, the French car manufacturer Renault announced the
closure of its plant in Vilvoorde, Belgium. It was suggested that Renault had
breached the rules contained in the EWC Directive and the Collective
Redundancies Directive. What is clear is that there were and are no adequate
sanctions to stop an employer making a decision of this kind, providing that
they are willing to bear the cost of any breach of rules. The problem with the
EWC Directive is that while it ensures the setting up of an information and
consultation procedure, it does not make specific provision for dealing with
emergency situations. There is no specific safeguard that requires the employer
to call emergency meetings of its workforce representatives in the event of a
crisis that might lead to closure or significant redundancies. The Renault
information and consultation agreement required the company to notify its
European committee of major changes within the group, the economic and
financial situation, the investment and production situation, changes in work
organisation and production processes and training policy. This clearly did not
happen. In the event, after much pressure from governments, trade unions and
the European Commission, Renault amended its information and consultation
agreement to deal with future situations. The amendment read:
In the event of a planned decision which has transnational consequences and is of a nature
such as to affect significantly employees interests, the European group committee will meet in
extraordinary session. In this situation, the European group committee will be consulted
within the meaning of Article 2 of the Directive of 22 September 1994 ± that is to say the
exchange of views at an appropriate time such that the elements of the discussion can still be
taken into account in the decision-making process.

Similar well-publicised failures to consult have taken place with BMW, in

announcing its disposal of the Rover Group; Ford Motor Co. in announcing the
ending of car production at Dagenham; General Motors making a similar
Employee announcement in respect of Vauxhall at Luton; and Corus, the Anglo-Dutch
Relations steel group announcing the reduction of its UK workforce by 6,000.
23,5 There are perhaps two issues here. One is the failure to consult and the other
is the failure to consult meaningfully. These examples show that a number of
large employers decided that consultation with employees was not to take place
before a decision was announced. Even in cases where employers are willing to
488 consult, such as in the case of Motorola Ltd, the fact that the important
decisions have already been taken makes the consultation process no more
than a process of explaining those decisions. There is no place for the last two
of Glidewell LJ's steps in a fair consultation process, namely adequate time in
which to respond and conscientious consideration by an authority of the
response to consultation.
Employers may perceive a particular problem with changes in economic
structures, resulting from global downturns or changes in business (consider
Psimmenos, 1996). There was a clear reluctance in all the examples here on the
part of the employer to give up any of their prerogative in deciding the future
economic directions for their businesses. The fact that in the UK the mandatory
consultation requirements are enforced by limited financial penalties only,
weakens their effectiveness.

Current requirements to consult

There are a number of occasions when an employer is required by law to
consult and inform employees, or their representatives, in the UK. There is
perhaps an assumption that making the parties consult and requiring them to
do so with a view to reaching an agreement will somehow resolve the issue.
The process does not necessarily recognise that there are conflicting interests
which need to be settled.
These include situations concerning the following.

Collective redundancies
The provisions concerning consultation are contained in Part IV Chapter II of
the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)[2],
which outlines the procedure for handling collective redundancies. Section
188(1) TULRCA provides that the duty to consult rests upon an employer who
is proposing to dismiss 20 or more employees at one establishment within a
period of 90 days or less for reasons of redundancy. This consultation shall
begin ``in good time'' and, in any event, at least 30 days before the first
dismissal takes effect, or at least 90 days before the first dismissal takes effect
if the employer is proposing to dismiss 100 or more employees at one
establishment within a period of 90 days. The requirements of the consultation
process are very specific. Employers must consult the workers' representatives
with the purpose of finding ways of avoiding the dismissals, reducing the
number of employees to be dismissed, and mitigating the consequences of the
dismissals.
 There is certain information that the employer must disclose in writing to Employee
the appropriate representatives. This information consists of the reasons for consultation
the proposals, the numbers and descriptions of employees whom it is proposed
to dismiss, the total number of employees of any description employed by the
employer at the establishment, the proposed method of selecting those to be
dismissed and the proposed method of carrying out the dismissals and, finally,
the proposed method of calculating payments if different to those required by 489
statute. These requirements are concerned with ensuring that employee
representatives have sufficient information with which to persuade the
employer to reduce the numbers of redundancies or mitigate their effects. Their
effectiveness must, however, be open to some doubt. The reality is that
management may see the process of mandatory consultation in redundancies
as a way of legitimising its decisions. It has been suggested that this may be the
case with regard to European Works Councils (Buschak, 1999), but it might
also be true in other situations, such as those concerned with collective
redundancies. An example might be the redundancies announced by Motorola
Ltd resulting from its decision to close its plant in Bathgate in 2001. It is clear
that the employer had made its decision before embarking on the required
consultation process. The Guardian (2001) newspaper reported that:
The company said it had come to the decision only after long and complex deliberations, and
weighing up a huge number of considerations.

These considerations had clearly not been weighed up in consultation with the
employees.
There is also an obligation for the employer to undertake such consultations
with a view to reaching agreement with the appropriate representatives. The
financial sanctions available, however, are not concerned with whether the
employer fails to reach agreement. They are concerned with a failure to consult
over a specific period.

Transfers of undertakings
One purpose of the Acquired Rights Directive[4] and the Transfer
Regulations[5] is to create an obligation on the employer to inform and consult
in the event of a transfer of an undertaking. Regulation 10 of the Transfer
Regulations is concerned with the duty to inform and consult employee
representatives and regulation 11 with the consequences of failing to do so.
Information should be provided ``long enough before'' a relevant transfer to
enable the employer of any affected employees to consult all the persons who
are appropriate representatives of any of those affected employees. The
information to be provided is identified as, first, the fact that a relevant transfer
is to take place, approximately when it is to take place and the reasons for it;
second, the legal, economic and social implications for the affected employees;
and, third, the measures which are envisaged to take place in connection with
the transfer, in relation to the affected employees or the fact that there are no
such measures envisaged.
Employee Where the employer actually envisages taking measures in relation to any of
Relations the affected employees, then the employer must consult the appropriate
23,5 representatives ``with a view to seeking their agreement to the measures to be
taken''. In the course of these consultations the employer will consider the
representations made by the appropriate representatives and, if any of those
representations are rejected, the employer must state the reasons for so doing.
490 The effectiveness of these provisions is also questionable. One study of the
effect of the Transfer Regulations on employers in the outsourcing industry
(Sargeant, 2000) concluded that ``the standard pattern for consultation tended to
be group meetings followed by individual meetings to re-assure people''[6].
This pattern did not appear to match all the requirements provided for in the
Transfer Regulations and were aimed at removing employee uncertainties,
rather than consulting ``with a view to reaching agreement''.

Transnational information and consultation of employees

The European Works Council Directive[7] was transposed into national law by
The Transnational Information and Consultation of Employees Regulations
1999[8]. Many British employees were already represented in European Works
Councils (EWCs) set up by multi-national companies influenced by the law of
other Member States which had already transposed the Directive. Consultation
is defined in the Regulations as meaning the exchange of views and the
establishment of a dialogue in the context of an EWC or in the context of an
information and consultation procedure. If the parties decide to establish an
information and consultation procedure instead of an EWC, then this
agreement must specify a method by which the information and consultation
representatives ``are to enjoy the right to meet and discuss the information
conveyed to them''.

Health and safety

The European Council Directive on the introduction of measures to encourage
improvements in the safety and health of workers[9] has specific requirements
both for the provision of information to workers and for consultation and
participation of workers. The Safety Representatives and Safety Committees
Regulations 1977[10] introduced a requirement for the appointment of safety
representatives from among the employees by independent and recognised
trade unions. These were amended in 1992, by adding regulation 4A, which
provided for the consultation of these representatives in good time on health
and safety matters. This meant, of course, that where there was not a
recognised trade union, there would not be any safety representatives to be
consulted. After the Commission had taken the British Government to the
European Court of Justice on the same problem with regard to collective
redundancies and transfers of undertakings, the 1977 Regulations were
amended by the Health and Safety (Consultation with Employees) Regulations
1996[11].
 The employer has a general duty to consult with employees, or their Employee
representatives, in good time, on a range of safety matters including the consultation
introduction of any measure at the workplace that might substantially affect
the health and safety of the employees. The consultation must be with the
employees directly or their elected representatives, who are called
``representatives of employee safety''. Similarly, Regulation 5 provides the
employer with a duty to provide information necessary for these 491
representatives or the employees directly to participate fully in the process.
Representatives of employee safety must also be given information to enable
them to carry out their functions.
One survey (Hillage et al., 2000) for the Health and Safety Executive found
that employers generally had a positive view about the value of consultation
with respect to health and safety. Almost two-thirds of the sample agreed with
the statement that ``consultation with the workforce has improved health and
safety in this organisation''. The report suggested that consultation on health
and safety could have advantages, first, in problem spotting as employees
could identify potential hazards; second, in problem solving ± employees could
help develop solutions to such problems; and, third, in problem ownership ± in
doing the above, health and safety issues became a joint problem solving
exercise, rather than just being a management issue. Such an approach
suggests a partnership approach between the employer and the employee.
It can be argued that consultation on health and safety is different, for
example, to consultation on collective redundancies and transfers. The latter
can be distinguished on the basis that they are likely to have a direct effect on
the job security of the individuals concerned and that this is a distinctive
feature of certain types of consultation.

The approach of the European Commission

The European Commission has two levels on which it aims to harmonise the
approach of member states to the issues of consultation of employees. These
are, first, the transnational level, as exemplified by the introduction of
European Works Councils, and, second, by proposals to introduce mandatory
consultation at the national level.

The transnational model

The European Works Council Directive (EWC Directive) was finally adopted
after some 14 years of debate. It was originally proposed under the Agreement
on Social Policy 1992 and so did not bind the UK. After the 1997 general
election, and a willingness of the UK to accept the Social Policy Agreement, the
Council adopted an extension Directive with a requirement for it to be
transposed into national law by 15 December 1999. The purpose of the
Directive, as stated in Article 1(1), was:
. . .to improve the right to information and to consultation of employees in Community-scale
undertakings and Community-scale groups of undertakings.
Employee There are also other EU initiatives concerning transnational companies and
Relations transnational takeovers and mergers. On 20 December 2000 the Council of
23,5 Ministers reached agreement on a proposed regulation establishing a European
Company Statute. This will give companies operating in more than one
Member State the option of establishing themselves as ``European companies''
(Societas Europea or SE) operating under EU rules rather than a variety of
492 national rules as at present. As part of this agreement there is to be a directive
establishing rules for worker involvement in the SE. When the SE is created
there will generally need to be negotiations with representatives of all the
workers affected. In the absence of any agreement there will be standards
established by the directive that will need to be followed. These require
management to provide regular reports to the workers' representatives and to
consult those representatives on the information provided. These reports will
contain details of business plans; production and sales levels; the implications
for the workforce; management changes; mergers, potential closures, layoffs
etc.

The national model

In 1998 the European Commission proposed a Directive on national levels of
consultation[12]. This was after the Commission had invited the social
partners[13] to reach a negotiated agreement. The negotiations failed because
of the employers' insistence that such a matter was an issue of subsidiarity and
should be left to individual Member States. Despite this the Commission has
pressed on and a common position is likely to be adopted by the end of 2001.
The proposal for a Directive has a number of aims. These include ensuring
the existence of the right to regular information and consultation of employees
on economic and strategic developments in the undertaking and on the
decisions which affect them in all member states of the European Community;
and ensuring that workers are informed and consulted prior to decisions which
are likely to lead to substantial changes in work organisation or in contractual
relations.
Article 1 sets out the basic objects and principles. It is intended to establish a
general framework for consultation by setting out the minimum requirements
for the right to information and consultation of employees. There is an
obligation on the employer and the employees' representatives to work in a
spirit of co-operation.
Consultation is defined in Article 2 as:
. . .the exchange of views and establishment of dialogue between the employees'
representatives and the employer.
Information is defined as:
. . .the transmission by the employer to the employees' representatives of data in order to
enable them to acquaint themselves with the subject-matter and to examine it.

The definition of when this information should be given, and when

consultation should begin, is vague. Article 3a proposes that information
should be given in such form as to enable adequate study and preparation for Employee
consultation; Article 3b provides that consultation should take place in such a consultation
way:
. . .as to enable employees' representatives to meet with the employer and obtain a response,
and the reasons for that response, to any opinion they might formulate;

and: 493
. . .with a view to reaching an agreement on decisions within the scope of the employer's
powers.

This seems a limited interpretation of the definition of consultation as

including a dialogue between the two parties. Reaching agreement is likely to
take more than expressing an opinion and receiving a reaction, no matter how
considered, from an employer to that opinion. The European Parliament's
Social and Employment Committee has proposed that the consultation should
take place at the planning stage, so that influence can be exerted.
A major limitation in the proposed Directive is that it be restricted to public
and private undertakings employing at least 50 employees and
``establishments'' employing at least 20 people. The Social and Economic
Committee of the European Parliament have called for this threshold to be
reduced to undertakings employing at least 20 people. They argue that not to
do so would exclude 97 per cent of all undertakings in the Community.
The subject matter of the information and consultation is proposed as:
. information on the recent and probable development of the
undertaking's activities and its economic and financial situation;
. information and consultation on the situation, structure and probable
development of employment within the undertaking and on any
anticipatory measures envisaged, especially in relation to employment;
. information and consultation on decisions likely to lead to substantial
changes in work organisation or in contractual relations.
The result of the likely adoption of this Directive is that employers will be
required to establish permanent bodies for consultation purposes, specifically
to consult on the ongoing health of the undertaking and any plans for changes,
especially those in relation to employees. This requirement effectively exists for
collective redundancies and transfers of undertakings, but, as has been shown,
is not totally effective. This is the sort of consultation that many employers do
not wish to take part in. It will require effective sanctions to make the proposals
more effective than those that established European Works Councils.

Consultation in other member states of the European community

There are perhaps two models for employee representation in Europe
(European Communities, 2000). The first is a single channel system where the
trade unions are the only, or main, channel of communication with the
employer. This takes place in the UK, Ireland, Finland and Sweden. Other
Employee countries have a two-tier system where there is an elected body representing all
Relations the employees in each organisation, which often exists alongside the trade
23,5 unions. The level at which consultation takes place also varies between the
establishment level and the undertaking level.
The works councils/committees vary as between different member states. In
Germany, Greece, Spain, The Netherlands, Austria, and Portugal such bodies
494 are made up entirely of employees. In Denmark and Luxembourg they are joint
employer/employee bodies and in Belgium and France they are actually
chaired by the employer. They also vary in their rights, which may include the
right to be informed, the right to be consulted and the right to decide jointly.
The essential features of the procedures found in other member states are:
(1) There are permanent bodies in which workers participate either as the
sole members or in partnership with their employers.
(2) These bodies have the right to be informed and consulted.
(3) The information and consultation includes:
. material about the financial status of the undertaking and predicted
future trends;
. material about employment trends and various aspects of the
undertaking's policies affecting employees. This might include
recruitment, training, redundancies and job grading;
. information and consultation on any expected or actual changes in
policy or circumstances related to the employees.
(4) This information and consultation takes place periodically, often
annually, but sometimes more often and more regularly.
There is, therefore, a greater institutionalised involvement of the social
partners in many member states when compared to the UK. This difference is
perhaps accentuated by the concept of the ``social pact''. This is a general term
relating to the institutionalisation of collective bargaining by allowing the
social partners a role in the decision-making process. It is important not to
produce a simplistic formula that suggests that all other countries have formal
agreements at national level between the social partners and governments,
whilst the UK does not. The arrangements and methods of reaching agreement
vary widely between different countries. Nevertheless, with the exception of
France and the UK, all member states, during the 1990s, achieved a social pact
or social agreement (it can still be said also that the role of the social partners in
France is greater than that in the UK). These pacts or social agreements
concerned issues such as competitiveness, combating unemployment, the
labour market, vocational training and social protection.
The more significant role for the social partners and collective bargaining/
consultation is reflected in the policies of the European Community. The
Commission has a long history of putting forward a variety of proposals on
consultation and participation as well as more recent initiatives in the field of
social protection and health and safety. The proposal for limiting Community Employee
initiatives to two major framework directives, one on consultation at the consultation
transnational level and one at the national level was put forward by the
Commission in 1995[14]. In its response[15], the Government at the time stated:
The Government vigorously supports voluntary employee involvement. A wide variety of
flexible, voluntary arrangements exist very successfully in the UK. . .. The Government has
consistently encouraged employee involvement, through research and the publication of good 495
practice, both on its own and in co-operation with others. . .. The Government strongly
believes that genuine employee involvement in the UK cannot be imposed by legislation and
it would be wrong to force business to inform and consult their employees.

This is an approach that seems to be supported by the present Government. It

shows a misunderstanding of the Community's proposals and, perhaps, a
misunderstanding of the purposes of the consultation envisaged. This intention
is to give rights to workers' representatives and not necessarily to involve them
in the business.

Conclusion
A function of employment law ``is to ensure some kind of substantive and not
merely formal equality between employer and employee'' (Sinzheimer, 1995
(quoted in Hepple, 1995)). Mandatory consultation is concerned with providing
this substantive equality. Management prerogatives are not stopped, but they
are made subject to the process of exchange of views with employee
representatives and the establishment of a dialogue (Bercusson, 1997).
There is a real question as to whether this can be effectively done by
legislative methods. What, for example, is meant by the requirements in the
Directives on Collective Redundancies and Acquired Rights to consult with a
view to reaching agreement. It suggests that the process should not be merely
procedural, but that there is a genuine effort to resolve differences (Hall and
Edwards, 1999). Research carried out by the DTI (1999) suggested that this
requirement had not especially affected management attitudes. One manager in
one of the case studies stated that consultation was, in many ways, ``confirming
the inevitable'' and ``a sign of reasonable communications''. Consultation here,
as the report put it, ``was a means of cementing trust, even though substantive
decisions were not much changed''.
The solution is a recognition that the consultation proposed has a particular
purpose and should not be confused with other types of consultation which are
really part of any good management's tool kit. The reality is that, following the
transposition into national law of the proposed Directive on consultation, there
is likely to be a structure which is concerned with placing obligations on
employers in order to help protect the rights of workers in relation to any
decisions that an undertaking may make which have an effect on them. If one
accepts that this structure is designed to help protect workers in periods of
structural change, and not necessarily to create a partnership or encourage
workers to participate in the enterprise, then the implementing legislation is
likely to be more focused and successful. It is more likely to be both punitive on
Employee employers who fail in their obligations and more protective to employees who
Relations might suffer as a result of the employer's failure. It will succeed in this because
23,5 it is not concerned with the employment relationship, but only with the more
one-dimensional approach of employee protection. To do otherwise would be to
weaken the proposed Directive's effectiveness.
496 Notes
1. Employee direct Participation in Organisational Change; a project sponsored by the
European Foundation for the Improvement of Living and Working Conditions, 1993-1998.
2. The survey was carried out in ten countries, covering 5,800 workplaces
3. Implementing Council Directive 98/59, which consolidated two earlier Directives on the
same subject.
4. Now consolidated into Directive 01/23/EC.
5. Transfers of Undertakings (Protection of Employment) Regulations 1981 SI 1981/1794.
6. The process was somewhat different when there were recognised trade unions
representing affected employees.
7. Directive 94/45/EC.
8. These came into effect on 15 January 2000 SI 1999/3323.
9. Directive 89/391/EEC.
10. SI 1977/500.
11. SI 1996/1513.
12. Proposal for a directive establishing a general framework for informing and consulting
employees in the European Community COM(98) 612.
13. UNICE, CEEP and ETUC.
14. Communication from the Commission on Workers Information and Consultation COM (95)
547.
15. Department of Trade and Industry May 1996.

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