Originally published November 2004

New, EU inspired, information and consultation regulations come into effect on 1 April 2005. Robert O’Donovan considers the dawn of a new era and whether there is scope for pre-emptive action to mitigate the effect of the new regulations.

The new regulations will allow employees (or the employer if it so wishes) to initiate procedures under which employee representatives are informed and/or consulted in certain areas. For firms and companies of over 150 staff, the regulations apply from 1 April 2005. The regime will then be extended to smaller undertakings by April 2008. Undertakings of less than 50 staff, however, will be exempt.

Unless you are positively enthusiastic about informing and consulting staff, the initiative is likely to come from staff. The support of 10% of the workforce is needed to initiate the process, but there is a minimum number of individuals involved of 15 which means that, for a company of, say, 60 staff, those instigating the process will need the support of 25% of the workforce, which arguably makes the initiation of the process slightly more difficult in smaller entities.

There is then a period during which staff representatives and management may negotiate their own information and consultation procedures. If, however, they fail to do so, then the statutory procedures operate which means that staff are unlikely to accept negotiated procedures offering much less than the statute by way of information and consultation.

As an underpin, therefore, management should expect that there will be a need to provide information on:-

  1. the undertaking’s economic situation;

  2. employment, in particular, where there is a threat to employment within the undertaking; and

  3. with certain exceptions, decisions likely to lead to substantial changes in work organisation or in contractual relations.

In addition, there is a requirement for consultation on items (b) and (c).

The requirements are not particularly well defined, but DTI guidance indicates that the emphasis is on employment levels and practices rather than more general financial issues.

Is there any advantage in taking action now? The answer will depend on your own circumstances. If you already have information and consultation procedures in place and they work well, then there is probably an advantage in reviewing them, recording them and, if necessary, adapting them. If this is done correctly, then the regulations make it difficult for a disgruntled minority of employees to change the way you operate now.

If you do not have consultation procedures in effect at the moment, there is likely to be little advantage in setting up new procedures now on the basis that staff will be aware of the statutory minimum which will apply if agreement is not reached and that will be their starting point.

Therefore, unless you are particularly enthusiastic, it probably makes sense to wait and see if staff do decide to initiate the process.

© RadcliffesLeBrasseur

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