Legal Q&A: Dealing with information and consultation requests

From 6 April 2008, only employers with fewer than 50 staff in the UK can ignore the Information and Consultation of Employees (ICE) regulations. Others will have to observe them, which could be tricky for HR directors and managers involved in any ICE-related consultations. The best advice is to be prepared for issues that are likely to be subject to negotiation.

Q What is the scope of the ICE regulations, and how do they apply to businesses with more than 50 staff?

A The ICE regulations set out a regime whereby UK employers may, and in some instances, must, use information and consultation agreements to govern how they will consult with their UK workforces regarding economic and employment-related matters. They do not, however, impose an automatic requirement on UK employers to create information and consultation arrangements. Specific criteria must be fulfilled first:

  • The ICE regulations must have come into force in relation to an undertaking of that size. Since 6 April 2008, only employers with fewer than 50 employees in the UK will be able to ignore the regulations.

  • The employees must have made a valid request to negotiate, or the employer must be given a valid notification of their intention to negotiate.

Once a valid request or notification has been received, the employer must negotiate with employee representatives to put in place an information and consultation agreement. Failure to do so within a specific timescale means the ICE regulations provide a set of standard information and consultation provisions that will automatically apply until any agreement to the contrary is made.

Q What issues does the employer have to consult with the workforce about?

A The ICE regulations do not stipulate any specific requirements as to the subject matter or timing of information and consultation, or as to the number or identity of any information and consultation representatives or the method of their selection. The Department for Business, Enterprise and Regulatory Reform guidance states that this is intended to give employers and employees scope to agree arrangements that best suit their particular circumstances. Employers and employees are therefore free to agree their own arrangements.

Q What constitutes a valid employee request?

A For a request to be valid, it must be made by at least 10% of the employees in an undertaking (eg a company), subject to a minimum of 15 and a maximum of 2,500 employees required to make the request. The request must be in writing, and must specify the date on which it was sent. And it must not be made within three years of a previous employee request or employer notification which has resulted either in a negotiated agreement or the rejection of the request by the workforce.

Q How quickly do such requests have to be answered?

A Where a valid employee request or employer notification has been made, the employer must, as soon as reasonably practicable (but in any event within three months), take the necessary steps to start negotiations for an agreement on information and consultation of employees. These steps include:

  • Making arrangements for the employees to appoint or elect negotiating representatives.

  • Informing employees who have been elected or appointed.

  • Inviting the representatives to negotiate.

Q What advice would your give to HR managers?

A Be prepared. Create a checklist of the issues the employer wants to consider when drawing up and negotiating a pre-existing or negotiated agreement under the ICE regulations, including key legal, negotiating and best practice issues. Consider who is driving the initiative. If it’s HR-driven, is there board and senior management buy-in? Is the workforce on the whole supportive of the aims of the process? What is the history on information and consultation within the organisation (or group, if appropriate), including trade union recognition, any previous unsuccessful attempts at recognition, European works councils, or other committees such as health and safety? 

Q What are the pitfalls of the ICE regulations for employers?

A The main one is not having a strategy.  A key strategic decision for employers is whether to initiate negotiations for the setting up of information and consultation arrangements, or to wait until an employee request is made under the regulations. Given the current economic uncertainty, much will depend on whether or not the employer is contemplating any major organisational changes that may panic the workforce if there is no proper structure for information and consultation.

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