Unions stood accused of not trying hard enough to stop the cuts. But the legal reality is, that for various reasons, unions can do little to save jobs.
The most important reason in the BMW case was the axed workers were reportedly supplied by an agency. Genuine agency workers lack the rights of employees facing redundancy, including the right to have elected or union representatives consulted about proposed dismissals.
In principle, the Government supports new legislation to give limited protection to agency workers but, as the recession unfolds, enhancing the rights of a flexible part of the UK's workforce may not be a priority.
Trade unions are really only empowered when employees' jobs are at risk. Employees have the right for their elected or trade union representatives to be collectively consulted when 20 or more redundancies are proposed at the same establishment within a 90-day period.
Nevertheless, the right only kicks in when there is a ‘proposal to dismiss', so an employer can contemplate dismissals for many months before telling unions about it.
A Court of Appeal judgment was recently hailed as a means to get employers to consult at a genuinely formative stage. It held that where there is an ‘inextricable link' between a commercial decision (such as shutting a plant) and dismissals, the union should be consulted about the commercial decision.
This strayed beyond the traditional remit of UK employee relations, which tends to keep the commercial decision-making process private. Nevertheless, while employers cannot ignore this case, many are taking a limited view as to when there is an ‘inextricable link' between a commercial decision and dismissals. Needless to say, the judgment has not unlocked the boardroom door to unions.
The penalty for not consulting is up to 90 days' gross pay per affected employee. This is a grim prospect and most employers go through the consultation motions.
There is, however, no prescribed structure to the consultation process beyond it having to commence at least 30 or 90 days before the first dismissal takes effect (depending on the number of proposed dismissals). There is also limited guidance about what consultation should actually address, so it is usually employer-driven.
It should also be remembered that the right is to ‘consultation'. The union's agreement to any matter tabled for discussion is not required.
To acknowledge the limitations of the statutory framework is one thing, to be defeatist about it is another. Employment legislation always has to strike a balance between competing interests. True union empowerment can occur outwith the statutory framework. If unions and employers have forged a good relationship, employers can be encouraged to bring unions into confidential discussions, with the proviso the discussions remain confidential.
Efforts made behind the scenes to throw employees a lifeline can't always be made public, so employees shouldn't be too quick to reach for the rotten apples.
Gemma Herbertson is an associate in the employment law team at Dundas & Wilson