The Information and Consultation of Employees (ICE) Regulations, were seen by some at the time of their introduction in 2005 as a potentially transformative measure. Brendan Barber – the General Secretary of the Trade Union Congress – said that the rights ‘could lead to the biggest change in workplace relations for a generation.’ Ten years on, we’ve taken the opportunity to look back at the impact of the regulations in the UK, and in the EU. Did they live up to these high hopes?

Well, not exactly. The Workplace Employee Relations Study (WERS) shows that there was no increase in the incidence of workplace-level Joint Consultative Committees (JCCs) from 2004 to 2011. It also suggested a narrowing of agendas in terms of JCCs, with an increasing tendency to consult only on the management’s preferred option.

As a result, some have characterised the ICE regulations as a damp squib. This is perhaps a little unfair. There was an increase in the incidence of workplace level JCCs among medium-sized organisations (50 – 249 employees), which were big enough to be affected by the regulations. Previous waves of the WERS survey had shown a decline in the incidence of JCCs, so perhaps the regulations helped arrest that decline. So, although perhaps not a damp squib, the regulations certainly haven’t exploded into life.

But why does this matter? There is a growing body of evidence that employee voice is vital. It matters for employees; voice is an essential component of good work and is linked to employee engagement and other positive outcomes. It matters too for employers; engaged employees tend to be more productive and innovative. Consultation can help improve decision-making and prevent conflict.

There is worrying evidence that the UK performs poorly in terms of voice. The ETUI rates us second worst in the EU in terms of participation at work. According to WERS, only one employee in three (35 per cent) says their manager is good or very good at allowing employees or their representatives to influence decision making. Under one in two (43 per cent) are satisfied/very satisfied with the extent of their involvement in decision-making. Both figures have increased slightly, but they remain worryingly low

So, given evidence of an unmet demand for voice, why were the regulations not more successful? Their failure to transform employment relations was in large part due to the attitudes of the Government, employers, and the union movement.

The Labour Government did not see the ICE regulations as necessary. Having already introduced the minimum wage and the social chapter, there was little appetite for further employment regulation, particularly on a collective level.

There was also little stomach to enforce stringent new regulations on a reluctant business community who opposed the ICE regulations from the start. The CBI argued that the regulations were unnecessary and potentially burdensome, enforcing a one-size-fits all approach through rigid rules when existing practice was sufficient.

The trade union movement – with some honourable exceptions – were luke-warm on the regulations. Many in the movement saw the regulations as a potential Trojan Horse for anti-union employers to undermine or pre-empt recognition, promoting non-union voice as an alternative to trade unions. Unlike in This limited their willingness to engage with and use the regulations, as many of their counterparts in Europe have done.

So the regulations lacked fulsome support from either the Government, employers or unions. As such, they have been described by Hall and Purcell as ‘an idea without a constituency.’

As a direct result of the lack of enthusiasm, the regulations were transposed in a way that would inevitably limit their use. Instead of an automatic right of consultation, if employers did not chose to introduce a forum, 10% of the workforce would have to petition to ‘trigger’ the regulations. With the lack of interest among unions in using the regulations, the possible fear of employer retaliation, and the low levels of awareness of the regulations, this has represented a significant barrier to the use of the regulations.

So what of the future of the ICE regulations? There is currently a review of the regulatons being carried out by the European Commission, but this aims only to consolidate and simplify directives so significant change is unlikely. We’ve set out a number of ways in which the regulations could be strengthened at a national level to make them promote voice more effectively. These include lowering the trigger, basing it on a business unit level, rather than across a whole organisation, and allowing recognised unions to automatically trigger the regulations. In order to ensure high-quality consultation, we suggested that representatives should be offered training, as happens in German and France, and that there should be a basic level of rights for JCCs, establishing on which issues they should be consulted as in Denmark, and that they should be consulted on a range of options, rather than just a preferred option.

However, there is clearly no appetite on the part of the current Government to strengthen employment regulation. Given that, we’ve suggested that a number of actors – including Engage for Success, CIPD, ACAS and indeed ourselves – could encourage better use of the ICE regulations. Crucially, trade unions are well placed to use the regulations. While the 10% barrier makes it virtually impossible for employees spontaneously to trigger the regulations, unions would be well placed to organise this.

So, the ICE regulations should not be seen as a failure, as they were not necessarily designed to transform the labour market. As Phillip Sack, the author of the regulations explained, the objective of the Government ‘was really to limit the impact and where possible to promote voluntarism.’

This poses a question. Whilst voluntary action might be preferable, and whilst responsible and enlightened employers do consult with and involve their employees, many still do not. Exhortation can be effective, but it will struggle to convince everyone. Given this, surely smart regulation has a role to play in establishing minimum standards.

Joe Dromey is Head of Policy and Research at the IPA. We would like to thank Friedrich Ebert Stiftung London for supporting this project.