Amicus v Macmillan Publishers Limited (Employment Appeal Tribunal)

The Employment Appeal Tribunal decision in Amicus v Macmillan Publishers Limited means that Macmillan Publishers Ltd are in the unfortunate position of being the first employer to have an award made against them for failing to inform and consult with their employees under the Information and Consultation of Employee Regulations 2004 (“ICE Regulations”).

The ICE Regulations require employers to respond to a request to negotiate from employee representatives. Those negotiations are with a view to putting an Information and Consultation Agreement in place once they receive a valid request to do so.

At present the ICE Regulations apply to undertakings with more than 100 employees, but from 6 April 2008 the ICE Regulations will apply to undertakings with 50 or more employees, a change which will catch all but the smallest of companies. Although the ICE Regulations do not impose an automatic requirement on employers to set up information and consultation arrangements, if a request is received in writing from more than 10% of the workforce the employer must, as soon as reasonably practicable (but in any event within three months), take the necessary steps to begin negotiations for an agreement on informing and consulting with its employees.

Once a negotiated agreement is reached, the company must set out in writing the circumstances in which it will inform and consult with its employees and date and sign the agreement.

Some companies will already have pre-existing workforce agreements in place which may be used as a “shield” against workforce requests. However, to be valid in this way, a pre-existing workforce agreement must provide for worker representatives to have been approved by the workforce, and that the agreement must cover the entire undertaking.

In Amicus v Macmillan Publishers Limited, Macmillan argued at the Employment Appeal Tribunal that it had operated a formal system of staff consultative committees for approximately 30 years and had thought it was acting in compliance with the ICE Regulations if it simply made adaptations to the existing mechanisms that were in place.

The Employment Appeal Tribunal were very critical of Macmillan’s conduct and declined to accept its argument of an existing agreement as mitigation for failing to comply fully with its obligations. The Employment Appeal Tribunal pointed out that the legislation is clear and there was no excuse for Macmillan not dealing with a valid request from employees. It stated that whilst Macmillan did have consultation arrangements in place, and had done for a number of years, “a moment’s consideration” of the ICE Regulations would have indicated that this was insufficient to comply with the new legislation. The Employment Appeal Tribunal imposed a hefty penalty on Macmillan of £55,000 (the maximum penalty is £75,000).