The regulations give employees the right, subject to certain conditions, to request that their employer sets up or changes arrangements to inform and consult them about issues in their organisation.

The requirement to inform and consult employees does not come about automatically. It can occur either following a formal request from employees for an information and consultation agreement – this would set out the mechanism by which employees would be informed and consulted over workplace issues - or by employers choosing to start the process to agree this with their employees themselves.

If a company already has an agreement in place to inform and consult with employees, it may not be necessary to make any changes. To be valid the pre-existing agreement must:

  • be in writing
  • cover all the employees in the undertaking
  • set out how the employer will inform & consult employees or representatives
  • be approved by employees – either by a ballot or being signed by elected employee representatives.

Key provisions of the ICE Regulations

The terms of any ICE agreement should set out:

  • the issues to be discussed
  • when and how often discussions should take place.

The subjects and issues to be informed and consulted over will be a matter for agreement between the employer and employee representatives, but the ‘standard provisions’ of the ICE regulations set out the areas where employers are obliged to inform and consult.  These are:

  • the business's economic situation
  • employment prospects
  • decisions likely to lead to substantial changes in work organisation or contractual relations – consultations should take place with a view to reaching an agreement.

Any arrangements must cover all employees.

Definitions of terms in the regulations

An undertaking is defined as “a public or private undertaking carrying out an economic activity, whether or not operating for gain.” 

An employee means an individual who has entered into or works under a contract of employment. 

Where do they apply?

The Regulations apply to undertakings whose registered office, head office or principal place of business is situated in Great Britain (identical but separate Regulations apply in Northern Ireland).  If an undertaking has its registered office in Great Britain and its head office in Northern Ireland (or vice versa), the British Regulations only apply where the majority of employees are employed to work in Great Britain. 

How do Information and Consultation Arrangements Come into Operation?

There are two ways in which information and consultation arrangements can come into operation: 

  1. Employees make a request to their employer to establish arrangements
  2. An employer initiates negotiations to establish arrangements

How do employees make a request?

Currently to make a valid request under the Regulations, 10% of the employees in an undertaking must make the request; the 10% figure is subject to a minimum of 15 employees and a maximum of 2500.

The Government has accepted the recommendation of the Taylor Review of Modern Working Practices and has laid before Parliament the necessary statutory instruments to amend the relevant legislation to reduce the threshold of employees making a request under the Regulations to 2%. This is expected to take effect from April 2020.  The minimum of 15 employees will remain in place.

Employees can make the request as individuals or a group of employees can make a single request. 

Where separate requests are added together to achieve the threshold figure, all the requests must be made within a six month period of each other.

Making an employee request

As a first step, employees can request data from their employer about the number of employees in the undertaking.  This allows employees to calculate whether the undertaking has sufficient employees to come within the scope of the Regulations.  They can also calculate how many employees need to support a request to establish information and consultation arrangements to meet the percentage threshold.

If employees want to request this data, they must write to their employer and date the request.  If the employer refuses to provide the data, or if the employer provides data which the employees consider is false or incomplete, the employees can make a complaint to the CAC (Central Arbitration Committee).

The first stage in the formal process is for employees to make a request to their employer for information and consultation arrangements.  Employees can do this even if they have not made a request for data.  If employees wish to make a request on a confidential basis, they can write to the CAC giving their own name and address, the employer’s name and address and, if possible, the name of the appropriate manager whom the CAC should contact, and ensuring that their letter is dated.  The CAC will then contact the employer to obtain a list of the names of the undertaking’s employees and will check whether the requests are from individuals whose names are on the list.  The CAC will then write to the employer and the employees to inform them of the number of employees who have made requests to the CAC.  The CAC will not reveal to the employer the names of the employees who have written to the CAC.  It is then up to the employer to decide if information and consultation arrangements should be established and, if appropriate, to begin negotiations. 

Can an employer challenge an employee request?

An employer may wish to challenge the validity of a request for information and consultation arrangements.  For example, the employer may consider that it is not an ‘undertaking’ as defined by the Regulations or that the undertaking does not employ sufficient employees to come within scope of the Regulations.  If that is the case, the employer may make an application to the CAC which will decide if the employer is required to act on the employees’ request.

What is a pre-existing agreement?

An employer may also consider that there is a ‘pre-existing agreement’ in place which provides for informing and consulting employees and that it should not be required to establish information and consultation arrangements under the Regulations. 

In these circumstances, if 40% of employees request information and consultation arrangements, the employer must nevertheless start negotiations to establish such arrangements.  However, if the number of requests is at least 10% but less than 40%, the employer can choose to run a ballot for the employees to decide if the employer should initiate negotiations to establish information and consultation arrangements. 

Running a ballot to determine if negotiations to establish information and consultation arrangements should be initiated

If the employer decides to run a ballot, it must inform the employees within one month of the employees’ request; the ballot should not take place earlier than 21 days after the employer notifies the employees of its intention to run a ballot. 

If the employees consider that there is no valid pre-existing agreement, they can make a complaint to the CAC which will decide the matter.  Employees may also make an application to the CAC if they consider that the employer did not notify them that a ballot was to take place, that the ballot has not been held or that it took place before the 21 day period had expired or that the ballot did not conform to the requirements of the Regulations

Balloting requirements

The balloting requirements include the facility to vote in secret and the necessity to ensure that votes are accurately counted.  The CAC can order the employer to arrange the ballot in line with the requirements of the Regulations.

If there are one or more pre-existing agreements that cover employees in more than one undertaking, an employer may choose to run a combined ballot involving the employees in all the undertakings.  Employees may make an application to the CAC that the employer is not entitled to run a ballot on this basis or that, if such a ballot does take place, that the conditions described above have not been met.

If a ballot does take place, the request to establish information and consultation arrangements must be supported by a majority of those voting and 40% of those entitled to vote to be successful.  If either of those criteria is not met, the request is unsuccessful and the employees cannot make another request for three years.

If the result of the ballot is that the employees support the request to establish information and consultation arrangements, or if there is no pre-existing agreement, or if the employer has decided to initiate negotiations, the procedure moves to the next stage which is to start the negotiating process. 

When should the negotiating process start?

This process must begin within three months of a valid request being made or the employer issuing a valid notification.  The first step is for the employer to make arrangements for the election or appointment of representatives who will negotiate the information and consultation arrangements with the employer.  These are referred to in the Regulations as ‘Negotiating Representatives’.

How to start the negotiating process

If an employer decides to initiate negotiations without waiting for a request from employees, it must inform the employees in accordance with the following requirements:

  1. it must state that it intends to start the negotiating process and that the notification is given for the purposes of the Regulations;
  2. it must state the date on which the notification is issued; and
  3. it must be brought to the attention of all employees in the undertaking

Employees may make an application to the CAC that the employer did not conform to these requirements.

Negotiating Representatives must be elected or appointed in accordance with the following requirements:

  1. all employees must be represented by one or more Negotiating Representatives
  2. all employees are entitled to take part in the process for appointing or electing the negotiating representatives.

Employees may make a complaint to the CAC that these requirements have not been met.  It is for the employer to choose whether Negotiating Representatives are elected or appointed but the employees are entitled to take part in the process once the employer has chosen the method.

If the Negotiating Representatives and the employer successfully conclude an agreement, the agreement must nevertheless conform to the following requirements:

  1. it must set out the circumstances in which the employer must inform and consult the employees;
  2. it must be in writing, dated and signed on behalf of the employer;
  3. it must be approved by all the Negotiating Representatives or, if it has been approved by a majority of the Negotiating Representatives, it must be approved in writing by 50% of the employees or supported in a ballot by 50% of those voting; and
  4. it must provide for the appointment of Information and Consultation Representatives or provide that the employer must inform and consult directly with all employees.

If a ballot of employees is held to approve the agreement, it must conform to the requirements of the Regulations; these include the facility to vote in secret and the obligation to ensure the votes are accurately counted.  A complaint can be made to the CAC that these balloting requirements have not been met.

Is there a deadline for concluding the negotiations?

The Regulations state that there is a six month period for the employer and the Negotiating Representatives to reach an agreement.  The six month period starts three months after the employer receives a valid request from its employees for information and consultation arrangements or three months after the date on which the employer decides to initiate negotiations itself. 

The six month period can be extended by agreement between the employer and the employees.

If it does not prove possible for the employer and the Negotiating Representatives to reach an agreement, or if the employer fails to enter negotiations, the ‘Standard Information and Consultation Provisions’ will automatically apply.  Generally, if the employer has refused to enter into negotiations, the Standard Provisions will apply six months from the date on which a valid request was made (or a valid notification was issued by the employer) or the date on which on which Information and Consultation Representatives are elected whichever is the sooner.  If, however, negotiations have taken place but did not result in an agreement, the Standard Provisions will apply six months from the expiry of the time limit described above, or the date on which Information and Consultation Representatives are elected, whichever is the sooner.

What are the Standard Provisions?

The Standard Information and Consultation Provisions are not a formal procedure of the type that may be agreed between an employer and its employees or, traditionally, the sort of collective agreement that is agreed between an employer and a trade union.  They are a series of obligations on the employer to inform the employees’ representatives on a range of issues affecting the undertaking’s activities.  The employer is under an additional duty to consult employees’ representatives on some of those issues.  Under the Standard Provisions, the employer also has to arrange a ballot to elect Information and Consultation Representatives and a complaint can be made to the CAC if that obligation is not met.  The Regulations relating to the Standard Information and Consultation Provisions are:

Where the standard information and consultation provisions apply, the employer must provide the information and consultation representatives with information on “the recent and probable development of the undertaking’s activities and economic situation”.

This information should be given at such a time, and in such a fashion and with such content as are appropriate to enable the representatives to conduct an adequate study and where necessary prepare for consultation.

The employer must consult the information and consultation representatives on:

  1. the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged, in particular, where there is a threat to employment within the undertaking; and
  2. decisions likely to lead to substantial changes in work organisation or in contractual relations, including those referred to in sections 188 to 192 of the Trade Union and Labour Relations (Consolidation) Act 1992; and regulations 10 to 12 of the Transfer of Undertakings (Protection of Employment) Regulations 1981.

The employer must ensure that the consultation is conducted:

  1. in such a way as to ensure that the timing, method and content of the consultation are appropriate;
  2. on the basis of the information supplied by the employer to the information and consultation representatives and of any opinion which those representatives express to the employer;
  3. in such a way as to enable the information and consultation representatives to meet the employer at the relevant level of management depending on the subject under discussion and to obtain a reasoned response from the employer to any such opinion; and
  4. with a view to reaching agreement on decisions within the scope of the employer’s powers.

 

The duties to inform and consult the information and consultation representatives on decisions falling cease to apply where the employer is under a duty under: 

  1. sections 188 to 192 of the Trade Union and Labour Relations (Consolidation) Act 1992 referring to an employer’s obligation to consult employees’ representatives in a redundancy situation.
  2. regulations 10 to 12 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 refer to an employer’s obligation to consult employees and their representatives prior to the transfer of an undertaking; and
  3. they have notified the information and consultation representatives in writing that he will be complying with his duty under this legislation instead of under these Regulations.

Where there is an obligation in these Regulations on the employer to inform and consult his employees, a failure on the part of a person who controls the employer (either directly or indirectly) to provide information to the employer shall not constitute a valid reason for the employer failing to inform and consult.

Issues where a complaint can be made to the CAC

If a Negotiated Agreement is in place or if the Standard Provisions apply, there are three issues on which an application or a complaint can be made to the CAC:

  1. a complaint can be made to the CAC that an employer has failed to comply with a Negotiated Agreement or the Standard Provisions;
  2. where an employer has disclosed information to an employee or an employees’ representative and has required them to keep that information confidential, the recipient of the information can make an application to the CAC for a decision on whether it was reasonable for the employer to impose that requirement; and
  3. an application to the CAC by either an employee or the employer that disclosing information would seriously harm the functioning of, or be prejudicial to, the undertaking.