Q To what extent will the Information and Consultation of Employees Regulations 2004 be applied?
A When the legislation is fully in force in April 2008, it will apply to undertakings that employ 50 or more employees in the UK, and whose registered office, head office or principal place of business, is situated in the UK.
The regulations define an ‘undertaking’ as a public or private undertaking carrying out an economic activity, regardless of whether it is operating for gain.
The Department of Trade and Industry (DTI) states in its guidance on the regulations that it believes that this means a separately incorporated legal entity as distinct from an organisational entity, such as an establishment, division or business unit of a company. It also considers that it includes partnerships, co-operatives, mutuals, building societies, friendly societies, associations, trade unions, charities and individuals who are employers. To qualify, they must carry out an economic activity. Others could include schools, colleges, universities, NHS trusts and government bodies, again so long as they carry out an economic activity.
Transitional provisions apply. From 6 April 2005, the legislation will apply to those undertakings employing 150 or more employees in the UK, and from 6 April 2007, to those employing 100 or more. During the transitional period, where an undertaking falls below the relevant threshold in terms of employee numbers, the employer and employees will still be able to draw up a pre-existing agreement if they so wish.
Q How is the number of staff in an undertaking calculated?
A To decide if and when the regulations apply, the number of employees must be established. This is ascertained by determining the number of staff employed in each of the 12 months preceding the month in which an employee request to negotiate an information and consultation agreement occurs, adding these figures together and dividing the total by 12.
Where the employer has been in existence for less than 12 months, the calculation is based on the number of months it has been in existence. For these purposes only, the employer may, if it wishes, count a part-time employee as representing half of a full-time employee for any month in which they worked under a contract for 75 hours or less.
Q Can individuals request data regarding the number of employees in their undertaking?
A Yes. An employee or employee representative can request data to determine the number of staff employed by the undertaking in the UK. Any such request must be in writing and dated. Employees may need this data to establish whether their undertaking is covered by the legislation.
In addition, since a minimum of 10 per cent of the employees in an undertaking must request negotiation of an information and consultation agreement, they may need the information to calculate how many employees will constitute this 10 per cent.
The employee or employee representative may complain to the Central Arbitration Committee (CAC) if the employer fails to provide the data, or if it is false or incomplete. If the CAC finds the complaint to be well founded, it will make an order requiring the employer to disclose the data.
Only complaints presented to the CAC after a period of one month from the date the data was requested will be considered.
Q When is an employer required to initiate negotiations in respect of an information and consultation agreement?
A A valid employee request will usually trigger a requirement for the employer to initiate negotiations in respect of an information and consultation agreement. However, if an employee request is made by fewer than 40 per cent of employees, and the employer already has a valid pre-existing agreement in place, it may hold a ballot to determine whether the workforce endorses the request instead of initiating negotiations.
If the workforce endorses the request, or if the employer decides not to hold this ballot, the employer is required to initiate negotiations in respect of a new agreement. If the workforce does not endorse the request in the ballot, then the pre-existing agreement will continue.
Employers may also initiate the process themselves without waiting for an employee request.
From XpertHR’s questions and answers section