The waiting is almost over. After two DTI consultation documents, the final text of the Information and Consultation of Employees Regulations 2004 is with us - and it offers a jigsaw of options
The three years between the EU agreeing a new legal framework for informing and consulting employees (11 March 2002) and the day it finally becomes law in the UK (6 April 2005) may have felt like an eternity, but it is almost over. Two points determine whether an employer is subject to the law:
- it must be an 'undertaking' whose registered office, head office or principal place of business is in Great Britain
- it must have the relevant number of employees in the UK.
From 6 April 2005 this will be at least 150. In two years' time the threshold is reduced to 100 and from 6 April 2008 the law will apply to an undertaking with at least 50 employees.
However, there is nothing for an employer to do unless it receives a written request from at least 10% of the employees (although a maximum of 2,500 applies). Then it must appoint - or have elected - negotiating representatives.
The employer and negotiating representatives try to reach what is called "a negotiated agreement", which will provide for informing and consulting either through employee representatives or directly with employees. If this process is not completed within the prescribed period (essentially, within nine months of the employee request), the so-called 'standard' or, more accurately, fall-back provisions apply. It is these standard provisions that have attracted all the headlines. They are complex but, in essence, provide for mandatory informing and/or consulting depending on the topic (see box).
There is another piece to this complicated jigsaw. An employer can have a pre-existing agreement. If it does, even though it receives a qualifying employee request, it need not seek a negotiated agreement. However, it must organise a ballot of the employees. If a majority of voters comprising at least 40% of the workforce support the employee request, the employer must reach a negotiated agreement.
One major exception is that if the employee request comes from at least 40% of the employees then there is no need for a ballot, and the employer must reach a negotiated agreement.
An employer essentially has three choices:
- wait and see
- pre-arrange an agreement
- be prepared.
Wait and see