Since April 2005 the Information and Consultation of Employees Regulations 2004 (the "ICE Regulations") have set out minimum rights for employees to be informed and consulted by their employers on a regular basis about issues in the organisation they work for. The Regulations have been implemented in three phases.
The Regulations have applied to undertakings with 150 or more employees since 6 April 2005, and since 6 April 2007 they now apply to undertakings with 100 or more employees. On 6 April 2008 this number will reduce again to apply to undertakings with 50 or more employees.
An employer is only obliged to inform and consult employees where a certain percentage of employees request that they do so. If a valid employee request is made, the employer will require to negotiate an Information and Consultation agreement with representatives of the employee. However, and crucially, where employers already have in place a qualifying pre-existing agreement and fewer than 40 per cent of employees have made a request for negotiation, the employer can choose to test the level of support for the initial request in a ballot, instead of negotiating a new agreement.
Where there is no pre-existing agreement or where the pre-existing agreement is successfully challenged then, provided at least 10 per cent of the workforce ask for a negotiated agreement, employers must arrange for elections of representatives who will negotiate an information and consultation agreement. Where a valid employee request or employer notification has been made, but no negotiated agreement is reached within 6 months, default provisions based on the Regulations will apply.
If the employer has an agreement in place which is covered by the legislation, or is subject to the standard provisions, and fails to inform and/or consult as required, a complaint can be made to the Central Arbitration Committee (the "CAC"). The CAC can then take such steps it thinks are needed to remedy the breach and on application to a tribunal, can impose a financial penalty of up to £75,000.
The ICE Regulations were originally thought to be likely to extend considerably the circumstances in which larger and medium sized employers are obliged to inform and consult with employee representatives in relation to matters affecting the workforce. As a result, it was thought that the Regulations might have a significant impact on the nature and structure of employment and industrial relations within workplaces in the United Kingdom. Some employments relations analysts suggested that over time the ICE Regulations would herald a cultural shift towards a much more participative role for employee representatives within UK business.
However, assessments of ICE's first two years indicate the Regulations have not had as significant an impact as initially anticipated, possibly because employers put in place arrangements before the Regulations came into effect. Many employees have continued to remain with the schemes already implemented within their organisation. Indeed there has only been a handful of applications to the CAC on issues arising from the Regulations, and only three decisions have been issued.
Employers should be aware however, that failure to implement local agreements across all sites from which they operate will affect their ability to rely on pre-existing arrangements. Recently in Amicus v Macmillan Publishers Ltd the CAC found the company to be in breach of the Regulations as they only had pre-existing arrangements in place in some sites and they did not cover all employees. Beware that if a formal request is submitted under the Regulations before pre-existing arrangements have been concluded at every site the whole negotiating process for the entire company should effectively be started again from scratch.