In the case of Amicus v MacMillan Publishing Limited, the Employment Appeal Tribunal made an award of £55,000 against the employer MacMillan Publishing Limited (“MacMillan”) for failure to comply with its obligations under the Information and Consultation of Employees Regulations 2004 (“the ICE Regulations”). The maximum amount it could have awarded is £75,000. The facts of this case and the judgement of Mr Justice Elias will serve as a warning to all employers who choose to delay or ignore the ICE Regulations’ provisions.
Since 6 April 2005, the ICE Regulations have required UK based employers with at least 150 employees to set up information and consultation arrangements between workers and management concerning certain workplace issues. The ICE Regulations apply to employers with at least 100 employees from 6 April this year and will apply to smaller employers with 50 or more employees from 6 April 2008.
Employers are only obliged to put such arrangements in place once employees make a “valid request” for their employer to do so. For a request to be valid, it must be in writing and made by at least 10% of the employees in the undertaking. It can be a single request or a number of separate ones (if made within a period of 6 months) and must specify the names of the employees making it, be dated and signed and state the date on which it is sent to the undertaking or to the Central Arbitration Committee (“CAC”).
The employer is not necessarily required to comply with a valid employee request to put a new arrangement in place where, before the date on which the ICE Regulations are in force in respect of any particular undertaking, there are one or more “pre-existing agreements” which apply to the entire workforce. This means an agreement which sets out how the employer is to give information and consult with the employees or their representatives, is in writing, covers all the employees in the undertaking and has been approved by them. If such “pre-existing agreements” are in force, the employer may, if the request had been made by fewer than 40% of the employees, hold a ballot seeking endorsement of the employee request, instead of initiating negotiations.
The trade union Amicus, representing the employees of MacMillan, made several complaints to the CAC with regard to failures by MacMillan to supply full information about the number of employees employed at its various sites.
On 15th March 2006 Amicus sent to the CAC a petition signed by individual employees containing a request to negotiate an information and consultation agreement. In these circumstances, MacMillan was obliged under the ICE Regulations to initiate arrangements for negotiating an information and consultation agreement. However, in this case no negotiations took place and so, in accordance with the ICE Regulations, the standard (i.e. default) information and consultation provisions under the ICE Regulations were deemed to apply from 15 September 2006. Where the standard provisions apply, the employer is obliged to hold a ballot to elect information and consultation representatives. In November 2006 Amicus complained to the CAC that MacMillan had not set up these arrangements, nor had it held such a ballot.
MacMillan accepted that the standard provisions should apply but, confusingly, also contended that it had pre-existing agreements already in place. In this regard, it said that it had a long standing consultative committee system in the various sites where it operated and that it either had existing elected committees in place or there had been recent elections to elect relevant representatives. MacMillan submitted that the arrangements it had in place had enjoyed the support of a significant majority of the workforce and, by implication, MacMillian suggested that such arrangements were preexisting agreements so obviating the need for any further ballot. In its response, the CAC concluded that there were no pre-existing agreements which covered the entire workforce; only one agreement, for the Basingstoke site was in place. Employees based at MacMillan’s other sites were not covered by any pre-existing agreements. The CAC said that there had been no attempt to initiate negotiations following the employee request being made and so the standard provisions applied. These had not been implemented and no ballot to elect representatives had been held. This was a clear breach of regulation 19(1) of the ICE Regulations. MacMillan did not appeal this decision and Amicus subsequently applied to the EAT for a penalty to be imposed on MacMillan in relation to its breach.
The EAT found that the breach by MacMillan of regulation 19 of the ICE Regulations was a serious breach and fixed the penalty at £55,000.
MacMillan was not represented in the EAT and made it plain that it did not wish to contest the matter. Instead, it submitted a number of points in mitigation in writing to the Court. In particular, it asserted that it had operated a formal system of staff consultative committees for 30 years; that it was committed to the concept of informing and consulting the workforce, it thought it was good enough to adapt its existing mechanisms to the new legislation; it had now taken expert legal advice and was actively seeking to carry out its legal obligations; it was in the process of consulting interested parties about the election of a national information and consultation body; and, finally, it expressed regret at what it submitted was a misguided attempt to comply with its legal obligations.
The EAT considered that MacMillan’s breach was a significant failure because it must have been plain, reading the legislation, that the relevant provisions were being ignored at almost every stage. This was compounded by the fact there had been earlier occasions when the employers were found to be in breach of their obligation to provide information. The experience of these two hearings should have alerted the employers to the significance of the provisions of the ICE Regulations. This was not a technical or inadvertent breach, MacMillan had resources and access to the relevant expertise and indeed had said that they had sought legal advice. Six months after the CAC’s most recent order, no ballot had been held and no arrangements put in place to extend information and consultation arrangements. The time taken to deal with the request and the ballot was an “aggravation of the breach” and constituted an “unacceptable dragging of feet”. No adequate reasons were given by MacMillan for its failure to comply with its obligations under the ICE Regulations and the workforce of over 1,350 employees had been deprived of the benefit of procedures on information and consultation which the UK Government legislated for in accordance with EU obligations. The EAT took into consideration the fact that MacMillan did appear to have recognised, albeit belatedly, its legal duties but said that it was difficult not to form the impression that it opposed the ICE Regulations and was seeking to delay their implementation for as long as it reasonably occurred.
In fixing the penalty, the EAT thought it appropriate “to stipulate a sum which, within the limits imposed by the legislation, will deter others from adopting what can only be described as the wholly cavalier attitude to their obligations that has been demonstrated by this company.” Although this was not the most serious breach of the ICE Regulations which might be envisaged, the EAT considered it a very grave breach affecting many employees.
How will this decision impact on employers?
This is the first EAT decision awarding a penalty for breach of the ICE Regulations. As mentioned above, the ICE Regulations now apply to all UK based undertakings with 100 or more employees, and from 6 April 2008, they will catch smaller UK undertakings with 50 or more employees. Bearing in mind it is the smaller organisations which are less likely to have pre-existing information and consultation arrangements in place, it is likely that more penalty awards against employers will be made in the not too distant future.
In this case, the employer MacMillan thought it could rely on its existing arrangements which it had in place on a site by site basis and, in doing so, chose to ignore the ICE Regulations. However, the EAT seriously criticised Macmillan’s failure to comply with the ICE Regulations as a blatant attempt to delay implementation for as long as it could.
Employers with multi-site operations should note that if a valid employee request is submitted before one or more pre-existing agreements are in place covering every employee at every UK site, the employer will have to follow the appropriate procedures for putting in place a negotiated agreement. This will involve making arrangements for the employees of the undertaking to elect or appoint negotiating representatives, informing the employees who they are and inviting them to negotiate to reach a negotiated agreement. Where no arrangements are agreed, standard provisions on information and consultation as set out in the ICE Regulations will apply, either 6 months from when the request was made or from the date negotiating representatives are subsequently elected. Whenever the standard provisions are going to apply, the employer must arrange a ballot to elect information and consultation representatives.