A change introduced under the Government’s Good Work Plan will amend the existing Information and Consultation of Employees Regulations 2004 (the ICE Regulations).
At present, employees of employers with 50+ employees who wish to trigger a formal I&C request under the ICE Regulations require at least 10% of the workforce to make the request (subject to a minimum of 15 and a maximum of 2,500 employees). From April 2020, that threshold will reduce to just 2%.
This is an interesting development for two reasons. First, at a time when the UK is preparing to leave the European Union, the Government in charge of effecting our departure has sought to strengthen this European-derived legislation. Second, the ICE Regulations failed to significantly increase the information and consultation (I&C) regimes adopted by employers. These proposals will make it far easier for employees to compel employers to introduce I&C mechanisms.
Once a valid I&C request is received, the employer must begin to negotiate an agreement with employees, including arrangements for the appointment/election of representatives. If no negotiated agreement is reached within the requisite time, the statutory standard information and consultation provisions (SICP) will automatically apply and the Central Arbitration Committee (CAC) will assume jurisdiction over all future disputes.
Most employers would not choose to have the SICP and the jurisdiction of the CAC imposed on them. The best way to avoid this prospect is to take a pro-active approach and introduce an agreed I&C arrangement before any statutory request is made. This makes it more difficult for employees to trigger a request under the ICE Regulations, as this requires either 40% of the workforce to make the request, or 10% of the workforce (reducing to 2% in April 2020) and a majority of the workforce voting in favour in a subsequent ballot.
For a valid pre-existing agreement, all that is required is for it to:
- be in writing and approved by employees
- cover all employees in the undertaking (this could be done by having different agreements apply to different sections of the undertaking)
- set out how the employer will provide information to employees and seek their views.
For many employers, the period of time before April 2020 provides valuable opportunity to evaluate the risk that a statutory request may be made. If so, employers should consider putting a pre-existing agreement in place. The additional benefits of having I&C arrangements in place should not be forgotten; they are a valuable tool for employee engagement as well as providing a standing forum of employee representatives available for other statutory consultative purposes (for example on health and safety issues or redundancy).
Finally, it should not be assumed that having an agreement with a recognised union will necessarily offer the protection of a pre-existing agreement as they generally do not meet the criteria set out above. Many collective agreements are not in writing and/or are exceedingly vague on how the information and consultation process will operate. As such, employers rely on these agreements at their peril.