A case heard by the EAT has shed further light on the factors considered in deciding the level of penalty imposed on an employer in breach of its obligations under the Information and Consultation of Employees Regulations ("the Regulations"). An employee made a request under the Regulations to negotiate an information and consultation (ICE) agreement. The employer was obliged to have ICE representatives elected by employee ballot but failed to do this, believing that the Regulations did not apply.

Following the Central Arbitration Committee confirming that the employee's request was valid and that the employer had no excuse not to arrange a ballot, the EAT had to decide the penalty to be paid by the employer for the breach.

Factors that can affect the amount of penalty include the seriousness of the breach; the period of time over which it occurred; the reason for the breach; and the number of employees affected. The Court considered that it was a serious breach by the employer as it was over a significant amount of time (8 months) and affected the entire workforce of 350 employees.

The EAT also took into account the fact that the employer had misunderstood its obligations under the Regulations, as well as the steps the employer took following the arbitrator's decision, but refused to consider a plea of financial hardship in the absence of evidence of this. Taking all these factors into account, the EAT decided to impose a penalty of £20,000.

This case highlights the need to take legal advice on whether a valid request has been made under the Regulations, as well as the factors the tribunal will consider in deciding the penalty for a breach of them.

Brown v G4 Security (Cheltenham)