Information and Consultation Regulations

Q For the purposes of the Information and Consultation of Employees Regulations 2004, what is consultation?

A The regulations define consultation as ‘the exchange of views and establishment of a dialogue’ be-tween the employer and employees’ elected representatives.

The information that representatives must be given and the matters on which they must be consulted, are only controlled by the regulations if the employer refuses, or is unable, to reach agreement with its staff about how information and consultation should happen in the workplace. In this situation, the ‘standard provisions’ apply.

Under the standard provisions, according to the guidance, consultation involves more than simply providing information. Representatives should be given ‘a fair and proper opportunity to understand fully the matters about which they are being consulted, and to express their views on those subjects – that is, they must be given adequate information and time… to consider the matter, form a view on it and express that view’.

The employer should in turn give the representatives’ views ‘genuine and conscientious consideration’.

However, there is no obligation to follow their opinion, and they are not being given the right to direct company policy.

Q Is confidential and sensitive information protected?

A The regulations oblige any employee who receives confidential information not to disclose it except within the terms under which he or she received it. If they do, they will be in breach of the regulations, and can be sued for damages. However, the employee may escape this penalty if the disclosure is protected under the public interest disclosure legislation.

Wrongful disclosure of confidential information can be included as a disciplinary offence in a pre-existing or negotiated agreement. However, if the standard provisions apply, the employer’s only remedy will be to sue for damages.

Q When can the employer withhold information?

A An employer is entitled to withhold information where disclosure would seriously harm the functioning of, or be prejudicial to, the business. If the representatives dispute whether the information in question falls within this description, they can make an application to the Central Arbitration Committee (CAC). If the CAC believes that disclosure will not cause serious harm, it will make a declaration requiring the employer to disclose the information. Moreover, if the employer’s breach is serious, a fine up to £75,000 can also be imposed.

The DTI’s guidance reminds employers that restricting information that is not genuinely confidential could hinder representatives in carrying out their role.

Q What happens if an employer cannot reach an agreement with negotiating representatives following a valid employee request?

A The employer has six months to negotiate the terms of an agreement with the negotiating representatives. If the parties cannot agree on terms, the DTI guidance recommends that arbitration service Acas’s help should be requested. If it is not possible for them to reach agreement or agree an extended deadline, the standard provisions will apply.

Once the default provisions apply, the employer is under a duty to organise a ballot to elect information and consultation representatives.
The number of representatives must be proportional to the number of staff in the undertaking: one per 50 employees (or part thereof), subject to a minimum of two representatives, and a maximum of 25. Employee representatives must be elected by ballot.

Q What are the standard information and consultation provisions?

A Under the standard provisions, once information and consultation representatives have been elected, the employer is under a duty to provide information to them in a time and fashion that enables them to conduct an adequate study of it, and prepare for consultation.

Information must be given on the recent and probable future development of the undertaking’s activities and economic situation. The DTI guidance states that the purpose of this information should be to help the representatives understand the context in which decisions affecting employment, work organisation and employees’ contractual relations are made.

Information must be given and consultation must be taken on the situation, structure and probable development of employment within the undertaking. In particular, it should be taken on any envisaged measures where there is a threat to employment within the undertaking.

The DTI guidance also states that information must be given and consultation must occur ‘with a view to reaching agreement’ on decisions likely to cause substantial changes in work organisation or in contractual relations. This can include collective redundancies and the transfer of undertakings.

What affects ‘work organisation’ or employees’ ‘contractual relations’ will vary from one organisation to another.

It would be wise for employers to seek the views of their information and consultation representatives on the sort of information that they would seek to be provided – although this is not a legal requirement.

Go to www.personneltoday.com/27862.article and www.personneltoday.com/27737.article for more Legal Q&As from XpertHR on the information and consultation regulations


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