Clause 26 of the Deregulation and Contracting Out Bill took me by surprise.

Buried in the Bill was a proposal to repeal a provision which currently protects individuals who are selected for redundancy in breach of a customary arrangement or agreed procedure.

The Trade Union Reform and Employment Rights Act 1993 amended redundancy consultation procedures.

So, what was this new Bill all about?The explanatory guide to the Bill notes in relation to cl 26 that employment law makes it automatically unfair for companies to select an employee for redundancy in contravention of a customary arrangement or agreed procedure unless there are special reasons justifying such a departure.

The guide notes:'We believe that this is unnecessarily restrictive and consider that employers ought to have flexibility to adapt to current circumstances...

Employees' interests would still be protected because in the event of a claim of unfair dismissal an industrial tribunal would consider whether an employer had acted fairly in the circumstances.'However, is the position really as simple as this? The statutory right not to be unfairly dismissed has been a part of our employment protection system since February 1972.

Dismissal may be unfair unless it is for a listed statutory reason, one of which is redundancy.

However, even if a dismissal is attributable only or principally to redundancy it may still be unfair.

One of these potentially unfair situations is where the dismissed employee can show his or her selection for redundancy was in contravention of an agreed procedure or customary arrangement relating to redundancy and where there were no special reasons justifying a departure from the arrangement or procedure in his or her case.In many organisations redundancy proce dures have been spelt out in collective agreements which, although typically not legally binding, may contain provisions which have legal force in individual contracts for employment.

The determination of whether there is present a 'special reason' which justifies departure from an agreed procedure or customary arrangement is a decision for an industrial tribunal to make.

An example of the difficulties which may be encountered was afforded by the case of Cross International v Reid [1985] IRLR 387.

In this case, the employers argued that the company's desperate financial situation justified the departure from an agreed procedure in order to utilise a method of selection which permitted the company to select for redundancy those employees who would be most useful to the survival of the company.

Instead of using a selection procedure based on 'last in first out' (LIFO), selection was on the basis of work rate, ability, experience, attendance, time keeping, application and length of service.

Sixty employees were selected for dismissal of whom six brought proceedings for unfair dismissal.

In a majority decision, the Court of Appeal upheld both the findings of the employment appeal tribunal and the original industrial tribunal to the effect that, serious though the situation was, it was not so catastrophic or special as to justify departure from the agreed procedure.The dissenting judgment of Lord Justice Watkins is especially relevant in the context of the Deregulation and Contracting Out Bill.

He found the case to be 'a very troublesome matter'.

The employers had behaved 'reasonably under stress of harsh economic necessity'.

He continued that where an employer's commercial situation was serious, and its management's judgment was that there should be a policy for survival or retention of the fittest, it should not be for an industrial tribunal to 'usurp management's function' and substitute its own judgment.While it may be tempting to see in the decision a judiciary which does not always recognise economic realities, recent decisions do not bear this out.

In Rolls Royce Motor Cars Ltd v Price [1993] IRLR 203, the employment appeal tribunal did not disturb a finding of the original industrial tribunal that the employers had established a 'special reason' in that the application of the 'LIFO' criterion alone in an agreed procedure could defeat the legitimate objective of carrying forward the particular business in difficult times.So, why cannot industrial tribunals go on performing this function in future? The government's response to this question would be that this is not intended to change by the Deregulation Bill.

Instead, industrial tribunals will still be required to consider the overall reasonableness of the employer's behaviour in relation to the decision to dismiss by reason of redundancy.

However, this would be in a much broader context without particular regard to procedures or arrangements for redundancy.Clearly, from a trade union's point of view, this would be a retrograde step since it will diminish the importance attributed to collective bargaining as a first port of call for the resolution of problems.

Although the proposed change may appear to be detrimental to employees, some categories of employees may benefit from the change.

For example, the criterion for selection for redundancy by reference to 'LIFO' may be a potentially discriminatory provision, better abandoned than implemented where the profile of a workforce by reference to sex has only recently changed.From the employers' point of view, the prop osed change would appear to allow greater flexibility which, in times of recession, must be welcome.

However, it is large not small employers which usually have agreed procedures in relation to redundancy and it is debatable, therefore, whether one of the expressed aims of deregulation P to assist small businesses P will be fulfilled.The assessment of the circumstances of a particular case will continue to be carried out by the industrial tribunal.

The less tangible consequence of the proposed change may be the removal of reliance upon the notion of a collective bargain between employer and trade union.