Background

The ICE Regulations were introduced in 2005 and they currently apply to every UK undertaking which has at least 100 employees. In April 2008 the Regulations will be extended to cover undertakings with 50 or more employees. The purpose of the Regulations is to encourage discussion between employers and employees in relation to issues which affect both parties. In particular, the Regulations give employees a right to request information and consultation arrangements under which they will be informed about the employer’s economic situation and the employment prospects facing them. They also stipulate that those arrangements must cover information and consultation about any decisions which are likely to lead to a substantial change in the employees’ conditions of employment.

Facts

A few weeks ago, Macmillan Publishers Limited received the first penalty notice awarded under the Regulations. On receipt of a valid employee request, Macmillan took no steps to arrange a ballot to elect employee representatives which is required under the Regulations. Macmillan argued that the formal system of staff consultative committees, which it had operated for many years, was a pre-existing arrangement which removed its obligations under the ICE Regulations. However, the pre-existing arrangements, amongst other things, did not cover all Macmillan employees. The EAT took a dim view of Macmillan’s non-compliance and imposed a fine of £55,000, to be paid within 14 days. The EAT explained that the sum was an attempt to deter others from adopting the same “wholly cavalier attitude to their obligations”.

Effect on employers

This case emphasises the importance of employers taking any employee request under the ICE Regulations seriously, as the courts are clearly willing to impose penalties against employers. With the threshold coming down to 50 employees as from April, this issue will become relevant to an increasing number of employers. Employers who have no information and consultation arrangements with employees may wish to consider the benefits of reaching such agreement on a voluntary basis before a statutory request is made. Employers who have pre-existing information and consultation arrangements would be advised to check that they are compliant with the Regulations, so as to ensure they are capable of overriding any employee request under the ICE Regulations