In July 2004, the UK government published a revised draft of Regulations intended to implement the requirements of the 2002 EU information and consultation Directive. The amendments reflect comments from employers, trade unions and others on an initial consultative draft of the Regulations published a year previously.
On 7 July 2004, the Department of Trade and Industry (DTI) published a revised draft of the Information and Consultation of Employees (ICE) Regulations, which are intended to transpose the 2002 EU information and consultation Directive (2002/14/EC) (EU0204207F) into UK law. The Regulations, which give employees the right to be informed and consulted by their employer about key business, employment and restructuring issues, will come into effect in spring 2005 following parliamentary approval.
The revisions take account of comments from employers, trade unions and other organisations on an initial draft of the Regulations published a year previously (UK0307106F). At the same time as the revised draft Regulations, the DTI published a document outlining its response to the various comments received, along with a consultative draft of guidance on the implementation of the new legislation.
Announcing the publication of the revised Regulations and draft guidance, employment relations minister Gerry Sutcliffe said: 'We have listened to what people had to say and now want to continue the process by seeking feedback on the draft guidance. It is vital that we do all we can to help employers and employees use this new law effectively.'
The main changes
The overall approach of the initial draft of the Regulations has been maintained. Essentially, the Regulations will enable 10% of an undertaking's employees, or management itself, to trigger negotiations on an information and consultation agreement, to be conducted according to statutory procedures. If no agreement is reached, 'standard information and consultation provisions' will become applicable to the undertaking by default, involving elected employee representatives (one for every 50 employees). However, if 10% of the employees attempt to trigger negotiations in undertakings where there are pre-existing information and consultation agreements in place, the employer can ballot the workforce on whether the existing arrangements should continue or whether new negotiations should proceed. Enforcement of agreements reached under the statutory negotiating procedure, or of the standard information and consultation provisions where they apply, will be via complaints to the Central Arbitration Committee (CAC) and the Employment Appeal Tribunal.
The main changes from the initial draft of the ICE Regulations include:
- allowing information and consultation agreements that cover more than one undertaking;
- making it clear that collective agreements with trade unions may constitute valid pre-existing agreements, but that European Works Council agreements are excluded;
- requiring that, where employees request negotiations on new arrangements despite where there being a pre-existing agreement, the request must be endorsed in a ballot not only by 40% of the employees in the undertaking (as in the earlier draft of the Regulations) but also by the majority of those voting;
- extending the time limit for starting negotiations following an employee request from one month to three;
- enabling employees to complain to the CAC if they consider that the statutory requirements concerning the election or appointment of employee negotiating representatives have not been met;
- providing that, where the default 'standard information and consultation provisions' apply, there will be a minimum of two employee information and consultation representatives;
- amending the standard information and consultation provisions to provide that, where employers are obliged to inform and consult under the existing statutory provisions on redundancies and transfers, they need not additionally consult information and consultation representatives under the ICE Regulations;
- further limiting the impact of CAC enforcement orders by providing that they cannot suspend or alter the effect of pending management acts as well as those already carried out;
- excluding long-haul merchant navy crew members from being negotiating or information and consultation representatives, unless permitted by the employer; and
- bringing the Regulations into force on 6 April 2005, not the deadline of 23 March 2005 specified by the Directive. This is one of the two standard annual commencement dates for employment law changes in the UK, introduced from 2004 (UK0402102N).
Draft DTI guidance
Among other issues, the draft DTI guidance covers:
- what constitutes a pre-existing agreement, and the ways in which employee approval can be demonstrated;
- the meaning of key terms and phrases in the Regulations such as 'undertaking', 'consultation', substantial 'changes to work organisation or contractual relations' and 'with a view to reaching agreement';
- how negotiating representatives may be selected;
- the suggested content of information and consultation agreements negotiated under the Regulations’ procedures;
- the frequency and timing of information and consultation where the default provisions apply; and
- the grounds on which employers may impose confidentiality restrictions or withhold information.
Application to the public sector
The government has confirmed that it is in the process of developing a code of practice with the civil service unions that will apply the principles of the legislation to central government departments that do not constitute 'undertakings' for the purposes of the Regulations. Local authorities will not be formally covered by the code but will be expected to adhere to its principles.
Commentary
While the revised draft Regulations contain a considerable number of amendments to the original consultative draft, these are mainly points of detail. The overall approach of the Regulations remains the same, despite some pressure from employers and trade unions for certain key aspects to be reconsidered (UK0402105F).
Among the most notable changes is the clarification of the relationship between the requirements of the ICE Regulations and existing statutory consultation requirements in the areas of redundancies and transfers. The Regulations now relieve employers subject to the default 'standard information and consultation provisions' of the obligation to consult the information and consultation representatives on these issues where they consult different representatives under the specific redundancies and transfers. Where agreed information and consultation arrangements apply, it is open to the parties to make provision to avoid overlapping procedures. The introduction of a double hurdle (40% of the workforce and a majority of those voting) for employee challenges to pre-existing information and consultation agreements provides further protection for established arrangements, and the recognition of agreements that cover more than one undertaking offers increased flexibility.
The government has resisted calls from the Trades Union Congress (TUC) for the Regulations to provide for injunctive relief, whereby employers who fail to inform and consult properly can be made to revert to the status quo ante. Indeed, as noted above, the Regulations now specify that CAC orders may not affect any future management action as well as any act already done. Similarly, the Confederation of British Industry (CBI) is still continuing to lobby the DTI about its concerns over the major role the CAC has been given in adjudicating complaints under the ICE Regulations. The CBI regards the CAC’s track record in other areas as too 'union-friendly'. Moreover, the revised draft ICE Regulations continue to provide scope for agreed arrangements involving direct forms of information and consultation rather than informing and consulting indirectly through employee representatives, even though there would appear to be questions over the compatibility of this approach with the requirements of the Directive.
Nevertheless, no further significant changes to the legislation are expected before the final text of the ICE Regulations is laid before Parliament for approval sometime in the autumn. Consultation will now focus on the content of the DTI guidance on the implementation of the Regulations. The government is seeking views on the draft guidance by 22 October 2004, and will refine it in the light of comments received. The Advisory, Conciliation and Arbitration Service (Acas) will also be publishing separate, 'good practice' guidance focusing on how to set up and operate effective information and consultation arrangements. (Mark Hall, IRRU)