Summary of key provisions introduced through the Information and Consultation Regulations 2004 (Great Britain) (Statutory Instrument 3426)

Implementation

• These regulations apply in England, Scotland and Wales (Great Britain).
• From April 6th 2008 the regulations apply to all undertakings employing 50 or more people in the United Kingdom.
• Separate regulations apply to employers in Northern Ireland (see http://www.opsi.gov.uk/sr/sr2005/20050047.htm)

Legal basis

The regulations were issued under powers set out in section 42 of the Employment Relations Act 2004 to implement in Great Britain the provisions of Directive 2002/14/EC establishing a general framework for informing and consulting employees at a local or company level.

Establishing an agreement

• The number of employees at an undertaking shall be determined by calculating the average number employed in the previous twelve months.
• An employer must begin the introduction of a process for information and consultation if they receive a request from at least 10% of employees (in one document or individually over any period of six months).
• If an employer has an existing written and approved arrangement (covering all employees) for giving information to employees or their representatives and to seek their views on it, they do not need to respond to a request under the regulations unless it is made by at least 40% of employees.
• Having received a valid request from employees, an employer must make arrangements for them to appoint or elect at least one negotiating representative for the purpose of reaching an agreement under the regulations.
• Employees must be notified in writing about the commencement of negotiations and the notification must be dated.
• The election or appointment must take place within three months of the valid request being made.
• If there is a complaint about the appointment/election, it must be addressed to the Central Arbitration Committee (CAC).
• When one or more representatives have been determined, the company must write to inform employees of their identities.
• The appointed or elected representatives must be invited to commence negotiations.
• Negotiations must take place over a period not exceeding six months.
• The final agreement about information and consultation arrangements must cover all employees and be signed and dated by the agreeing parties.
• The agreement must either specify how information and consultation representatives are to be appointed/elected or outline a process ensuring that all employees are to be informed and consulted individually.
• The company must then implement the agreement in a timely way.

Failure to comply with negotiating procedures

Where an employer has failed to commence or complete negotiations within the required period of six months, they must move ahead with standard information and consultation procedures as follows:

• A ballot must be held to select information and consultation representatives.
• The ballot must be in accordance with Schedule 2 of the regulations.
• One representative must be elected per fifty employees, provided that the final number of representatives ranges from 2 to 25.
• The process of information and consultation must cover:
• The recent and probable development of the undertaking's activities and economic situation.
• The situation, structure and probable development of employment within the undertaking.
• Any anticipatory measures envisaged, in particular, where there is a threat to employment within the undertaking.
• Any decisions relating to the transfer of undertakings or collective redundancy (except when arrangements for either circumstance are already in place).
• The timing, method and content of the consultation must be appropriate.
• Representatives must be given the opportunity to meet the relevant level of management.
• Where consultation concerns the transfer of undertakings or collective redundancy, it must be conducted with a view to reaching an agreement.

Further conditions

• Duties under the regulations must be carried out in a spirit of co-operation.
• Where an employer fails to comply with the negotiation procedures or default standard terms, a complaint may be made to the CAC.
• The maximum penalty that an appeal tribunal may apply for non-compliance is £75,000.
• Information provided to representatives in confidence must not be disclosed to other parties, except where the terms of disclosure permit them to do so.
• Employers are not obliged to reveal information if, according to objective criteria, the disclosure would seriously harm or be prejudicial to the undertaking.
• All representatives must be given adequate paid time off from their normal duties to perform their functions.
• No representative (or candidate for appointment/election) may be dismissed or be subject to detriment for any reason connected with their representative activities, except where they have breached their duty of confidentiality.
• No employee may be dismissed or subject to detriment for reasons relating to their activities in relation to the implementation or enforcement of these regulations.
• Any agreement on contracting out from the application of the regulations shall be void, unless it is part of a written compromise agreement restricting access to an employment tribunal and appropriate independent advice has been given to the employee concerned.

A full copy of the Regulations is available at the Office of Public Sector Information.

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