UK: Information And Consultation Regulations - First Reported Decision

Last year we advised you in a series of factsheets of the meaning and potential impact of the Information and Consultation Regulations (the Regulations). Recently, the Central Arbitration Committee (CAC) has delivered its first reported judgement on the Regulations (in the case of Stewart and The Moray Council), a decision which will be of great interest to those employers hoping to rely on pre-existing agreements to block an employee request to negotiate an information and consultation agreement (an I&C Agreement). This case makes clear that such agreements will have to contain comprehensive details of information and consultation processes in order to be effective under the Regulations.

The Importance of a Pre-Existing Agreement

The Regulations provide that if 10% of the employees in the undertaking (subject to a minimum of 15 and maximum of 2,500) make a request to negotiate an I&C Agreement then the employer must commence negotiations. The only exception to this is if the employer already has in existence a 'pre-existing agreement' (PEA).

However, the circumstances in which the employer can rely on the PEA are limited:

• If 40% or more of the workforce make a request to negotiate, then the employer is obliged to enter directly into negotiations for a new I&C Agreement;

• If more than 10% but less than 40% of the workforce make a request to negotiate, the employer may hold a ballot of all the workforce to establish whether they endorse the request to negotiate, or alternatively enter directly into negotiations.

In the case of Stewart and The Moray Council, Mr Stewart had lodged a petition with the Council in which between 10% and 40% of the Council's employees requested the Council to negotiate an I&C Agreement. The Council's view was that there were PEAs in place and therefore it decided to hold a ballot rather than immediately entering into negotiations.

The CAC had to decide whether Moray Council's collective agreements together constituted a PEA for the purposes of the Regulations, and accordingly whether the Council was entitled to hold a ballot rather than entering directly into negotiations.

The Regulations provide that for a PEA to exist, there needs to be one or more agreement which, at the time of the employee request:

• are in writing; the CAC held that this criterion was fulfilled in this case;

• cover all the employees in the undertaking; Mr Stewart had argued that the agreements were with trade unions and did not cover employees who were not members of those unions; the CAC disagreed and held that the agreements did not differentiate between union members and non-members and covered all staff;

• have been approved by the employees; the CAC agreed with the Council that the trade union representatives' endorsement of the agreements constituted approval by all the employees, since the trade union representatives represented all employees (no matter whether individual employees were members of that union or not) and additionally, a majority of the workforce belonged to the recognised unions;

• set out how information will be given and views will be sought; it was on this last point that the Council failed; a provision in one of the agreements only providing for a ‘forum for discussion and/or consultation on a range of matters not subject to national bargaining’ was not found to be a sufficiently detailed description of the way the Council should inform and consult its staff.

Accordingly, the CAC found that the Council was not entitled to hold a ballot, and ordered the Council to initiate negotiations for an I&C Agreement.

This decision reaffirms our previous advice that employers hoping to rely on PEAs in this context should carefully review such agreements and make any amendments necessary to bring them within the definition under the Regulations. In particular:

• check whether the whole workforce is covered; there may be more than one and/or different types of agreement for different parts of the business, as long as they cover all the employees; if this is not the case, consider extending existing agreements or negotiating separate agreements to cover currently excluded classes of employees; if agreements are entered into with trade unions only, make sure that, nevertheless, the scope covers all employees, including non-union members;

• consider whether the employees have approved the relevant agreement(s); the legislation does not provide any detail on how employee approval could be demonstrated; however, the DTI guidance on the Regulations suggests that this could mean:

• a simple majority amongst those voting in a ballot;

• a majority of the workforce expressing support through signatures;

• the agreement of representatives of employees who represent a majority of the workforce; in the Stewart case it was held that the trade union representatives represented all employees, and the CAC also took into account that a majority of the workforce belonged to the recognised unions; the CAC did not have to consider whether it would suffice for an employer to obtain the agreement of representatives representing a majority, and so this area remains untested;

• bear in mind, also, that the mere fact of the collective agreement being a term of the employment contract was considered, by itself, not to be sufficient evidence of ‘approval’ by the employees;

• check the content of the agreement, in particular any provisions relating to information and consultation; a vague agreement to consult, as in the Stewart case, will not be sufficient; whilst there is no clear guidance in the Stewart decision as to what is sufficient, the following details are likely to assist:

• election of employees - voting arrangements, who organises, when held;

• representatives - their roles, numbers and responsibilities;

• terms of reference - what information will be covered (in as precise terms as possible); whether different information will be provided to different parts of the business or locally/nationally;

• meetings - time, place and frequency; notice of meetings; provision of information before meetings; management of meetings; how meetings will be run;

• feedback mechanisms - process for feeding back information to employees.