Marginal workers and rights to collective and individual representation

"It should be noted that almost 97% of enterprises in the United Kingdom employ less than 50 employees, and so will not come within the scope of the Information and Consultation Regulations." In a revealing reversal of the norm whereby governments seek to emphasise the effectiveness of the laws they make, this boast concerning the minimal impact of the ICE Regulations is highlighted in the DTI's own Regulatory Impact Assessment. Moreover, this lack of impact is secured not simply by reference to organisational size, but also by the fact that workers at the margins of labour law protection, such as temporary and casual workers, may not count in determining the size of the workforce. Part-time employees do count, but only as half a person. The problem is compounded as a group of commonly owned associated companies constitutes separate individual undertakings. This is in contrast to procedures in the TULRCA 1992 enabling unions to seek statutory recognition, but the effectiveness of these rules is very much weakened by the fact that they do not apply to organisations employing fewer than 20 workers, and thus millions of workers are excluded from their scope. Organisations with fewer than 20 employees are now effectively required to have written disciplinary and grievance procedures. But there are reasons to believe many do not, and, even if they do, they probably do not inform their employees of statutory rights to trade union representation in formal hearings. Even in organisations where the ICE Regulations will apply, workers (as against employees) do not have protection from dismissal or detriment should they involve themselves in campaigns to secure collective information and consultation processes. Thus, so are the unfair consequences of the Court of Appeal's decision in O'Kelly v Trusthouse Forte (1984) perpetuated. In short, those workers, who are potentially most vulnerable to unfair employment practices, have the least statutory employment protection. With particular reference to the ICE Regulations, the paper will consider the consequences of this, and will suggest proposals designed to extend effective legal rights to representation to 'marginal workers'.