Q What constitutes a valid employee request to negotiate an information and consultation agreement?
A A valid employee request will take the form of either a single request made by at least 10 per cent of the employees in the undertaking, or a number of requests that, when taken together, mean that at least 10 per cent of the employees in the undertaking have made requests. In the latter case, requests may be made on different days so long as they are all made within a period of six months.
Employers are advised to retain any employee requests that do not fulfil the 10 per cent requirement for a period of six months in case any more are received. Where multiple requests are received employers may wish to check that the same employee does not appear on more than one request, to avoid double counting.
Where the 10 per cent requirement would result in fewer than 15 or more than 2,500 employees being necessary for a valid request, a minimum of 15 or a maximum of 2,500 employees is necessary.
To be valid, a request must be in writing, specify the names of the employees making it and the date on which it was sent. It may be sent directly to the employer, or to the Central Arbitration Committee.
Q In what circumstances can an employer hold a ballot seeking endorsement of an employee request?
A Where a valid employee request has been made by less than 40 per cent of employees and a pre-existing information and consultation agreement is in place, the employer may, instead of initiating negotiations, hold a ballot to determine whether the workforce endorses the request.
Before holding the ballot, the employer must inform the employees in writing, within one month of the date of the employee request, that it intends to do so. It must then wait 21 days before holding the ballot, to allow employees to challenge the validity of the pre-existing agreement should they so wish, but must arrange for the ballot to be held as soon as reasonably practicable once this 21-day period has expired.
Q What constitutes a pre-existing agreement?
A A pre-existing agreement must have been made prior to a valid employee request to negotiate an information and consultation agreement in respect of the Information and Consultation of Employees Regulations 2004, regulation 7. It must: be in writing; cover all the employees in the undertaking; have been approved by the employees; set out how the employer is to give information to the employees or their representatives; and seek their views on the information.
The regulations do not impose any requirements regarding the method, frequency, timing or subject matter of pre-existing information and consultation arrangements. Neither do they provide detail on how employee approval of an agreement can be demonstrated. The DTI guidance suggests that approval could be demonstrated by a simple ballot of the workforce, a majority of the workforce expressing support by signatures, or the agreement of employee representatives who represent a majority of the workforce.
The guidance also suggests that a European Works Council agreement will not be a valid pre-existing agreement as its focus will be on trans-national issues.
Q What requirements must an endorsement ballot satisfy?
A An employer is required to make such arrangements for the ballot as are reasonably practicable to ensure it is fair. Anyone who is an employee of the undertaking on the day of the ballot, or, where it is to be held on more than one day, the first day of the ballot, must be entitled to vote in it, and to do so in secret so far as is reasonably practicable. The employer must then ensure the votes are counted accurately, and that the employees are informed of the result as soon as is reasonably practicable .
The employee request will be regarded as having been endorsed if at least 40 per cent of employees in the undertaking and the majority of those taking part in the ballot vote in favour of endorsing it. If the request is endorsed, the employer must initiate negotiations in respect of a new information and consultation agreement. This does not necessarily mean the pre-existing agreement will no longer stand. For example, if the pre-existing agreement is a collective agreement with a trade union, it will continue to remain in force. It will, however, mean that the pre-existing agreement does not suffice under the employer’s obligation to negotiate an information and consultation agreement under the Information and Consultation of Employees Regulations 2004.