Legal Q&A: informing and consulting

The Information and Consultation of Employees Regulations 2004 (ICE) require employers to establish arrangements for informing and consulting employees by way of a negotiated agreement or the standard provisions laid down in the regulations, if requested by 10% of the workforce. While ICE currently applies to businesses employing 150 or more employees, from 6 April 2007, those employing 100 or more employees will have to comply, and from April 2008, it will affect organisations with 50 or more staff.

Q How do you calculate how many employees are in the business?

A The number of employees is calculated as an average over the previous 12 months, by counting the number of employees employed in each month (whether or not they were employed for the whole month), adding together the total for all 12 months and dividing by 12. A part-time employee can be counted as ‘half’ an employee if they have normal working hours of 75 hours or less. Employees and representatives are entitled to request data from the employer to determine if the number of employees triggers the application of the ICE regulations.

Q If an employer already has a consultation forum, do the ICE regulations still apply?

A If there is a valid pre-existing agreement (PEA) in place, this will be sufficient to comply. The PEA must be in writing, cover all the employees of the business, set out how the employer is to give information to the employees or their representatives, and seek their views. It must have been approved by the employees. A collective agreement with a trade union can be a PEA if it covers the whole workforce or if the other employees are covered by one or more other valid PEAs.

Q Have there been many cases of companies getting it wrong?

A The Central Arbitration Committee (CAC) which has responsibility for resolving disputes under ICE, has received few complaints since the regulations came into force in April 2005 and only three such complaints have been upheld. In the most recent decision, the CAC upheld a complaint by Amicus that Macmillan Publishers had failed to arrange a ballot to elect information and consultation representatives following a valid request from the employees.

Q What are the consequences if companies do get it wrong?

A The CAC can make orders compelling the employer to comply with the relevant part of the process. For example, in the Macmillan case (above), the employer was ordered by the CAC to hold a ballot to elect information and consultation representatives.

Where a negotiated agreement has been agreed, or the standard information and consultation provisions apply, and the employer fails to comply, the information and consultation representatives, the employees, or their representatives, can make a complaint to the CAC and it can order the employer to comply. If the employer then fails to comply within a three-month period, the Employment Appeal Tribunal can order the employer to pay a penalty of up to £75,000, depending on the gravity of the failure, the period of time over which it occurred, the reason for the failure, the number of employees affected, and the number of employees employed by the business. The penalty is payable to the government.

Q Can employers withhold confidential or sensitive information?

A All representatives have a duty of confidentiality where the employer discloses any document or information to them in confidence. If a representative breaches that confidentiality, the employee can bring a claim for damages, unless the disclosure was reasonably thought by the employee or representative to amount to a protected disclosure. If a representative believes that the confidentiality restriction should not apply, they can apply to the CAC for a declaration whether it was reasonable for the employer to impose the restriction. The employer is not required to disclose information or documents to representatives where disclosure would seriously harm the functioning of, or be prejudicial to, the employer.

Q Do information and consultation representatives have any special protection?

A Information and consultation representatives have the right not to be dismissed nor subjected to a detriment as a result of performing a function in their role as a representative or candidate for election as a representative. Dismissal for this reason will be automatically unfair. Representatives also have the right to reasonable paid time off to undertake their representative roles.

By Susan Fanning, employment partner, DLA Piper

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