UK: The Information And Consultation Of Employees Regulations: A Review Of The Current Draft

Introduction

The United Kingdom is required, by no later than 23 March 2005, to introduce for the first time a law establishing a general framework for informing and consulting employees. The obligation arises by virtue of the European Union Directive of 11 March 2002 (2002/14/EC) ("I&C Directive"). The DTI published in July 2003 a consultation document including a set of draft Regulations ("draft Regulations") that are intended to implement the I&C Directive. Exactly a year later the DTI published draft Regulations and draft Guidance ("draft Guidance"). The DTI is consulting on the draft Guidance (but not the draft Regulations). ACAS has also produced guidance. This is less about the meaning of the new law and more about practical suggestions for employers (such as, recommended content for a negotiated information and consultation agreement). The DTI intends to lay the draft Regulations before Parliament in due course. The new law would take effect on 6 April 2005 - 15 days late!

This paper gives a brief overview of the draft Regulations. It is based on the text that appeared in July 2004. Note that it is possible (but probably unlikely) that the text will change. I look in brief at the I&C Directive and the current UK law on informing and consulting employees, before turning in more detail to the draft Regulations.

1.1 There is nothing new about European Union Directives imposing information and consultation obligations upon employers. Notable examples are the 1975 Directive on Collective Dismissals (75/129/EC – subsequently amended by the Directive 92/56), the Transfer of Undertakings Directive in 1977 (77/187/EC – subsequently amended by the Directive 98/50), the Framework Directive on Health and Safety in 1989 (89/39/EC), and the European Works Council Directive of 1994 (94/45/EC) ("EWC Directive"). However, what differentiates the first three Directives mentioned from the I&C Directive is that they each deal with discrete topics. By contrast, the I&C Directive is broader in scope. This is similar to the EWC Directive but the principal difference between the EWC Directive and the I&C Directive is that the former covers transnational issues and the latter covers issues that are national or local.

1.2 The purpose of the I&C Directive is stated to be the establishment of a general framework setting out minimum requirements for the right to information and consultation of employees in certain undertakings or establishments. It is estimated by the European Commission that this will cover 50% of European Union employees.

1.3 The text of the I&C Directive has an influence on the draft Regulations in at least three respects:

• the I&C Directive informs the terms of the draft Regulations – the latter must implement the I&C Directive and therefore be consistent with it;
• the I&C Directive sets out a number of options for the UK Government and the draft Regulations reflect the Government’s selection (eg whether to base the law around "undertakings" or "establishments" – in fact the draft Regulations select the former);
• when interpreting any ambiguity in the draft Regulations the British courts will have regard to the text of the I&C Directive and decisions of the European Court of Justice interpreting the I&C Directive.

1.4 The European Commission is required to review the I&C Directive no later than 23 March 2007.

2.1 We have a number of laws in the UK providing for the informing and consulting of employees or employee representatives. Five laws are worth mentioning. (See also Occupational Pensions Schemes (Disclosure of Information) Regulations 1996 and the statutory trade union recognition laws in Schedule 1A of the Trade Union and Labour Relations (Consolidation) Act 1992 and consultation on training under Section 70B of the 1992 Act.)

2.2 The first law to look at was enacted in 1975. This placed an obligation upon an employer who recognises an independent trade union to disclose information to the union which is relevant for the purposes of collective bargaining. Disputes are handled by the Central Arbitration Committee ("CAC").

2.3 The second law is a law that requires employers, irrespective of size, to inform and consult when they propose to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less. The law sets out the information to be disclosed. It says there must be consultation with a view to reaching an agreement, particularly in relation to avoiding dismissals, reducing the number of employees to be dismissed, and mitigating the consequences of the dismissal. The employer must consult its recognised trade unions but, if there are none, its employee representatives. These are to be elected. Failure to comply with the law can lead to a protective award: an award of up to 90 days’ gross pay per affected employee. This law puts into effect the 1975 Collective Dismissals Directive mentioned earlier.

2.4 The third law also flows from one of the Directives mentioned earlier. In the context of the transfer of an undertaking (or part), transferor and transferee have information and, sometimes, consultation obligations. In practice, the law impacts mostly on the transferor. The transferor is obliged to provide information on the reasons for the transfer, the legal, economic and social implications, the measures that the employer intends to take and so forth. If there are measures then there must be consultation with a view to seeking agreement on any measures to be taken. The consultees are the same as in the redundancy law. The penalty for failure is up to 13 weeks’ gross pay per affected employee.

2.5 There is also information and consultation legislation in the field of health and safety. There are two relevant regulations, one in 1977 (Safety Representatives and Safety Committees Regulations) and the other in 1996 (Health and Safety (Consultation with Employees) Regulations). The fundamental difference between the two is that the first relates to consulting with appointees of recognised trade unions and the second, consulting with employee representatives or directly with employees.

2.6 The fifth and final law to look at is the 1999 Transnational Information and Consultation of Employees Regulations ("TICER"). This was designed to implement the EWC Directive when this was extended to the UK following the election of the Blair Government in 1997. The legislation sets out a mechanism for a relevant employer on the one hand and a special negotiating body comprised of employee representatives on the other hand to negotiate an agreement as to how the employer will inform and consult on transnational issues. There is a statutory fallback provision whereby, if the parties do not reach an agreement, then they must establish what is often termed a statutory European Works Council.

2.7 We can extract some common themes from these five laws:

• each law operates in a tightly defined field: collective bargaining information, collective redundancies, transfers of undertakings, health and safety, or transnational information and consultation;
• the consultees are trade unions and/or employee representatives (no mention of works councils – except for the European Works Council law);
• they apply to all employers irrespective of size (except for, again, the law on European Works Councils); and
• at the heart of each lie concepts of "information" and "consultation" and yet these terms are described with differing degrees of precision.

3.1 The draft Regulations contain 41 Clauses and 2 Schedules. They run for about 40 pages. Thus, a paper of this size can do no more than give a flavour of the text. Readers should refer to the text before taking any action.

3.2 In brief, the new law will place general information and consultation obligations upon certain employers. However, the law contains a number of options designed to create flexibility and this inevitably makes matters more complex. The chart, appended to this paper, provides a simplistic overview of when an employer must inform and consult. I will look at the following topics:

• scope and timing;
• triggering the negotiation process and reaching a negotiated agreement;
• pre-existing agreements;
• standard information and consultation provisions;
• confidential information; and
• protection of representatives, enforcement and co-operation.

3.3 At the heart of the draft Regulations is the concept of "undertaking". Everything flows from this. For example, as we shall see, it is critical in determining who is covered by the law. An "undertaking" is defined as "a public or private undertaking carrying out an economic activity, whether or not operating for gain". This will cover a sole trader, a partnership and a company. An "undertaking" is probably not the same as an establishment, division or business unit of a company. The draft Guidance takes the view that "undertaking" means a legal entity. So, for example, if a company has two divisions, the company is the "undertaking" but the divisions are not. However, because a business division could be bigger or smaller than an "undertaking", there is a potential here for a mismatch between the law and the way employers and employees prefer to conduct their consultation. Furthermore, as we shall see, employers can be compelled to inform and consult at the undertaking level even though they may prefer to have arrangements below undertaking level. Nonetheless, it is possible for them to reach "pre-existing agreements" and "negotiated agreements" (see later) setting out different arrangements for various parts of an undertaking but only if, when you aggregate together the various arrangements, the whole of the undertaking is covered. It is also possible to have an "existing agreement" and "negotiated agreement" at the parent level in a group of companies: in other words, it can cover a group of undertakings.

3.4 The law will only apply to "undertakings" which meet two criteria. The first is that the undertaking’s "registered office, head office or principal place of business is situated in Great Britain" (special rules apply for Northern Ireland). For example, this will cover a UK-registered subsidiary of an American parent. It is unclear whether a London branch of a New York registered corporation would be covered. Assuming the London branch is not the registered office, head office or principal place of business, the key issue is whether the London branch (as distinct from the corporation) is an "undertaking". The position is not clear.

3.5 The second criterion relates to employee numbers. The Government has chosen to adopt transitional provisions permitted by the I&C Directive. Thus the law, as from 6 April 2005, will apply only to undertakings "employing" at least 150 employees "in the UK" (so employees in Northern Ireland count for this purpose). From 6 April 2007, it will be undertakings with at least 100 employees. Finally, from 6 April 2008, every "undertaking" with at least 50 employees will be covered. "Employee" means "an individual who has entered into or works under a contract of employment", namely a contract of service or a contract of apprenticeship.

3.6 Part II of the draft Regulations sets out detailed rules on how to calculate employee numbers in order to determine whether an "undertaking" meets the employee threshold. In broad terms, one calculates the average number of employees in the undertaking over the previous 12 months. An employer has the option to count certain "part-timers" as half a person (but only for these purposes). The law obliges an employer to let employees and "employees’ representatives" (an undefined term) have the data they need to make the calculation for themselves.

3.7 As is well known, employees, especially in a group of companies, may not be employed by the corporate vehicle that is the "undertaking". All employees in a group might be employed by a service company, yet the group may have a series of undertakings. The draft Guidance suggests that what is key is not who is the employer but rather for whom the employee works. It follows that in deciding whether an "undertaking" meets the employee thresholds, one counts the employees working in the "undertaking" but the actual employer in the group is irrelevant. Thus, where the draft Regulations refer to "employer" this means the "undertaking" in which the employees work – which is not necessarily the same as their legal employer. It is unclear whether this means you count employees who are not employed by any group company, such as third party providers eg employment business or outsourcers - one assumes not. This DTI view is controversial.

3.8 Employee or employees’ representatives who believe they have not been provided with the relevant data within a month of a request can complain to the Central Arbitration Committee ("CAC"). The CAC can order the employer to disclose relevant data.

3.9 In broad terms, the draft Regulations seek to achieve the purpose of the I&C Directive by providing for the following stages to achieve information and consultation at the workplace:

• the process begins once the employer receives a request from its employees meeting certain formal requirements (known as an "employee request");
• the employer must then appoint or elect negotiating representatives and seek to reach an agreement with them providing for information and consultation (known as a "negotiated agreement");
• if negotiations fail within a prescribed period (or the employer takes no action), standard information and consultation provisions automatically apply;
• but there is no obligation to reach a negotiated agreement or apply the standard information and consultation provisions if the employer has already reached an agreement meeting certain conditions (known as a "pre-existing agreement") and in a ballot organised by the employer the employees in effect reject the employee request and support the pre-existing agreement.

3.10 It is open to an employer, of its own volition, to trigger the process leading to a negotiated agreement. However, as this is unlikely to be the norm, I will concentrate on an employee-inspired process. The detail is set out in Part III of the draft Regulations.

3.11 As we have seen, the trigger for the negotiation process is an employee request from a certain number of employees served on the employer or CAC (by using the CAC route an employee can retain anonymity from the employer although the CAC must be told the employee’s name). This must be a single request by at least 10% of the employees in the undertaking, or a number of requests (made within a period of six months) equal, in aggregate, to this number. However, if 10% would be less than 15 or more than 2,500 then those numbers become the relevant thresholds. So, if the undertaking has 50 employees, at least 15 must be party to the employee request. If the undertaking has 50,000 employees, then the threshold is 2,500.

3.12 An employer will only be able to challenge an employee request (by application to the CAC) in a limited number of situations:

• the employer is not within the scope of the draft Regulations (see 3.3, 3.4 and 3.5 above);
• the request was not supported by the relevant number of employees (see 3.11 above);
• the request did not meet certain formal requirements set out in the draft Regulations (see Regulation 7);
• the employer had a pre-existing agreement and this was supported by a relevant ballot (see 3.18 etc. below); or
• the request was made within three years of a negotiated agreement or the standard information and consultation provisions applying, or where a relevant ballot supported a pre-existing agreement (subject to certain exceptions).

3.13 Assuming none of the above apply, the employer is obliged to make arrangements for appointing or electing the negotiating representatives with whom the employer will seek to agree a negotiated agreement as soon as reasonably practicable. All employees must be entitled to take part in the appointment or election. Also, the appointment or election must be arranged in such a way that all employees at the undertaking are represented by a representative. ACAS provides some guidance on how an "appointment" or "election" is to be conducted. There appears to be no restriction on who might be a "negotiating representative". This could be employees, trade union representatives, experts or Henry Kissinger!

3.14 Once the appointment or election is over, the employer must inform the employees in writing of the identity of the negotiating representatives. Next it must invite those representatives to enter into negotiations to reach a negotiated agreement. This must start within three months of the employee request. The parties have six months to reach an agreement, otherwise the standard information and consultation provisions apply automatically. However, it is possible for the parties to agree to extend this period.

3.15 Employer and negotiating representatives have some flexibility as to the content of their negotiated agreement but the agreement must satisfy seven conditions. It must

• set out the circumstances in which the employer must inform and consult its employees;
• be in writing;
• be dated;
• cover all employees of the undertaking (or group of undertakings);
• be approved in a certain way (see 3.16 below);
• be signed by or on behalf of the employer; and
• provide for either the appointment or election of information and consultation representatives whom the employer informs and consults (such as a works council) or that the employer will supply information directly to employees and consult the employees directly (essentially a forum of the whole workforce).

3.16 The approval condition mentioned above can be achieved in one of two ways (or a combination of both):

• all the negotiating representatives sign the agreement; or
• a majority sign and either:

1. at least 50% of employees employed in the undertaking approve the agreement in writing; or
2. at least 50% of the employees who vote in a secret ballot, complying with the requirements of the draft Regulations, approve the agreement.

3.17 The future will show the typical terms of negotiated agreements. The draft Guidance contains some suggestions. It is more than possible that negotiated agreements will reflect some aspects of the standard information and consultation provisions discussed below.

3.18 As we have noted, an employer may not have to enter into negotiations to reach a negotiated agreement if it has a pre-existing agreement. This is one or more agreements which complies with the conditions set out in draft Regulation 8. These are it:

• pre-dates the valid employee request;
• is in writing;
• covers all employees in the undertaking;
• has been approved by the employees; and
• sets out how the employer is to give information to employees or their representatives and seek their views on such information.

3.19 A pre-existing agreement cannot be an agreement that relates to the European Works Council law (see 2.6 above) but it can be a collective agreement. Agreements can also cover more than one undertaking. This is discussed further at paragraph 3.22 below.

3.20 The big unknown in this is how an agreement must be "approved" by the employees. The DTI intends to create flexibility. However, the ambiguity might lead to parties entering into an agreement which fails to be a "pre-existing agreement" because of subsequent judicial interpretation of the concept of "approval". The draft Guidance suggested that "approval" might be demonstrated by a majority vote in favour in a ballot of the workforce, a majority of employees expressing support through signatures, or the agreement of employees’ representatives representing a majority of the workforce.

3.21 Even if there is a pre-existing agreement, this can be trumped by an employee request if:

• 40% or more of the employees employed in the undertaking are a party to the employee request; or
• in a secret ballot of all employees, which must be organised by the employer, at least 40% of the employees in the undertaking endorse the employee request and a majority of votes cast in the ballot endorse the employee request (see Regulations 8 and 9 for the balloting requirements).

3.22 A novel provision introduced in the July 2004 draft of the Regulations is that a pre-existing agreement can cover more than one undertaking (Regulation 9). If so, where less than 40% of the employees covered by the agreement send in the written request, an employer (or employers) can arrange for a ballot to endorse the agreement. The ballot must cover all employees covered by the agreement. To overturn the pre-existing agreement requires at least 40% of all employees covered by the agreement (rather than one undertaking) to prefer the employee request. It is important to recognise that where there is such a "group" pre-existing agreement a valid employee request to trigger a ballot only needs 10% of the employees of the undertaking (not the "group" covered by the pre-existing agreement).

3.23 As we have seen, the "standard information and consultation provisions" are triggered when the parties have failed to reach a negotiated agreement within six months (or any extended period that the parties agreed). There are two key elements to these standard provisions:

• mandatory election of "information and consultation representatives"; and
• mandatory information and consultation duties placed upon the employer.

3.24 The employer must arrange a ballot for the election of at least one information and consultation representative for every 50 employees (or part thereof). There must be a minimum of two and a maximum of 25. The complex rules on operating the ballot are set out in Schedule 2 of the draft Regulations. The rules specify a single ballot although separate ballots are possible where the employer decides that a number of constituencies would "better reflect the interests of the employees as a whole". Any employee of the "undertaking" may stand for election (although an employer can allow, but it is not required to permit, non-employees to stand). An independent ballot supervisor is to supervise the ballot. All costs fall on the employer.

3.25 Perhaps the most controversial area in the whole of this law is the mandatory information and consultation obligations placed upon the employer. It is worth setting these out in detail.

3.26 The employer is obliged to provide the elected information and consultation representatives with information on:

1. the recent and probable development of the undertaking’s activities and economic situation;
2. 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
3. decisions likely to lead to substantial changes in work organisation or in contractual relations including collective redundancies and transfers of undertakings.

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

3.28 In the case of category (a), the employer need only "inform". But the employer must not only inform but also "consult" in relation to categories (b) and (c). Consultation means "the exchange of views and establishment of a dialogue".

3.29 Where there is an obligation to consult this must be 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 and of any opinion which the representatives expressed to the employer;
3. in such a way as to enable the representatives to meet the employer at the relevant level of management and to obtain a reasoned opinion from the employer; and

4. where this is in relation to category (c) information, with a view to reaching agreement on decisions within the scope of the employer's powers.

3.30 It is not open to an employer to fail to inform and consult because its parent (or other controller) does not provide the relevant information.

3.31 As we have seen, category (c) information includes collective redundancies and transfers of undertakings. There is potential for a conflict between the employer’s duties under the Regulations and under the specific laws dealing with collective redundancies and transfer of undertakings (see 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 respectively). The draft Regulations resolve this conflict by offering the employer a choice. The employer can either endeavour to comply with both the rules under the Regulations and the other laws or it can notify the information and consultation representatives that it will comply solely with the other laws. Thus, for example, if all the employees of an undertaking are represented by a trade union recognised by the employer and it is proposed to sell a division of the undertaking (thereby triggering the transfer of undertakings rules) the employer can choose to inform and consult either with the information and consultation representatives and the trade union or solely with the trade union. However, it should be remembered that under the draft Regulations the obligation to inform and consult could arise before the statutory obligations under the collective redundancies or transfer of undertakings laws. Thus, an employer may well end up informing and consulting under both laws, although once both laws are engaged the employer could, at that point, "switch" solely to informing and consulting under the collective redundancies/transfer of undertakings laws.

3.32 There is much ambiguity in the standard information and consultation provisions. Areas of particular concern include:

• what counts as "substantial changes in work organisation or contractual relations"?
• are "contractual relations" limited to contracts of employment?
• at what time in the decision-making process must "information" be supplied?
• what is the test of whether the employer has met the obligation to consult "with a view to reaching agreement"?
• does "within the scope of the employer’s powers" mean where decisions are taken by a parent company outside the scope of the Regulations the UK employer is not responsible?

3.33 Where the information and consultation representatives believe that the employer is failing to comply with the standard information and consultation provisions, they may complain to the CAC. The CAC has the power to order the employer to comply. A penalty notice is also possible (see 3.40 below).

3.34 One of the issues most often raised by employers about the impact of this legislation is the potential misuse of confidential information. Part VII of the Regulations has two key provisions on confidential information.

3.35 First of all, negotiating representatives, information and consultation representatives and their experts shall not disclose information which the employer has entrusted to them on terms requiring it to be held in confidence. Thus, there is a statutory duty not to disclose information which the employer tells them to keep in confidence. But this only applies if the information is truly "confidential". Whether this is so can be ruled upon by the CAC. The test is whether disclosure of the information would be "likely" to harm "legitimate interests" of the undertaking.

3.36 The second provision is that the employer can withhold information when "according to objective criteria, the disclosure of the information … would seriously harm the functioning of, or would be prejudicial to, the undertaking". If there is a dispute about withholding information, a declaration can be sought from the CAC as to whether the test of withholding has been met.

3.37 Part VIII of the draft Regulations sets out detailed rules on protecting negotiating representatives and information and consultation representatives from actions by the employer, including unfair dismissal. Also, the rules provide for reasonable paid time off during working hours to function as such a representative. Employment tribunals will have the power to order payment and compensation.

3.38 The enforcement and remedies set out in the draft Regulations have been surprisingly vested in the CAC. The remedy for infringement of rights under the draft Regulations lies only by way of a complaint to the CAC (except for some of the rights on confidential information and protection of employee representatives mentioned at 3.34 to 3.36 and 3.37 above). It is possible to appeal to the Employment Appeal Tribunal on a point of law.

3.39 The CAC will have the power to make declarations and orders about the operation of negotiated agreements and the application of the standard information and consultation provisions. However, no order of the CAC will have the effect of suspending or altering the effect of any act done or of any agreement made by the employer or of preventing or delaying any act or agreement which the employer proposes to do or to make.

3.40 If the CAC declares that an employer has failed to comply with a negotiated agreement or the standard information and consultation provisions, an application can be made to the Employment Appeal Tribunal for a penalty award. The Employment Appeal Tribunal can make an award of up to £75,000 having taken into account factors such as gravity of the failure, reason for failure and number of employees affected. The money goes not to the employees but the Government!

3.41 One final point to note is that all parties (employers and representatives) are under a duty, when negotiating or implementing a negotiated agreement or when implementing the standard information and consultation provisions, to work in a spirit of co-operation and taking into account the interests of both the undertaking and the employees. This could be particularly relevant when testing whether an employer has met its obligations to consult "with a view to reaching an agreement" in the context of the standard information and consultation provisions.

3.42 Faced with the introduction of the new law an employer has a number of options:

• reach a pre-existing agreement with employees/employee representatives falling within Regulation 8 (see 3.18 to 3.22 above);
• do nothing but, following a valid employee request, reach a negotiated agreement (see 3.13 to 3.16 above);
• of its own volition trigger the process leading to a negotiated agreement; or
• do nothing and allow the standard information and consultation provisions to take effect (see 3.23 to 3.33 above).

3.43 If the first option is chosen then the employer needs to be progressing this now – rather than waiting for the new law to come into force. It will take time to collect information on current information and consultation structures, develop a strategy, prepare a management team, establish an employee team and negotiate an agreement. Furthermore, the employer will want to have the employee representatives who are to be informed and consulted elected and trained in time for an inaugural meeting before 6 April 2005. This is likely to take a number of months.

4.1 There are some who see the Regulations as a "monster". Others see such views as hype and a great "myth". From an employer’s perspective much depends upon:

• the final text of the Regulations;
• judicial interpretation of a number of elastic (or, more bluntly, ambiguous) provisions; and
• the employer’s current approach to information and consultation.

4.2 What seems tolerably clear is that the Regulations will impose an extra cost for most employers. This is not only the obvious costs of paying for ballots, paid time off, and management time, but also the delay in implementing change. Whether the benefits outweigh the costs is a more debatable proposition.

1. The chart is based on the draft Information and Consultation Regulations 2004 published by the DTI in July 2004. The text may change. The new law commences on 6 April 2005.
2. The Regulations only apply to an "undertaking" (eg a company, partnership or sole trader), with a registered office, head office or principal place of business situated in Great Britain and employing at least 150 employees in the UK (from April 2007 this figure reduces to 100 and from April 2008 it becomes 50). It is possible for the employer to initiate the process, in which event the employer notifies the employees and begins the negotiation process (see Note 6 below).
3. 10% of employees means 10% of employees of the undertaking but if 10% would mean less than 15 or more than 2,500 then these become the required minimum and maximum. The Regulations permit a single or group of requests sent to the employer or the Central Arbitration Committee ("CAC").
4. To be a "pre-existing agreement" an agreement must meet certain conditions including pre-dating the employee request, being in writing, covering all employees in the undertaking, having been approved by the employees and setting out how the employer is to give information to employees or their representatives and seek their views.
5. In certain circumstances the employer can choose either a ballot of the undertaking of the employees who made the request or a ballot of a group of undertakings covered by a "pre-existing agreement".
6. All employees must be entitled to take part in the appointment or election of the representatives. The election or appointment must be arranged in such a way that all employees will be represented by a representative.
7. A "negotiated agreement" must meet certain conditions including setting out the circumstances in which the employer must inform and consult employees, covering all employees of the undertaking, being "approved" in accordance with the procedure set out in the Regulations and providing for the employer informing and consulting either with information and consultation representatives or with employees directly.
8. Broadly speaking, the parties have six months to reach a "negotiated agreement" (or an extended period agreed between employer and the negotiating representatives).
9. The Regulations do not govern the enforcement of a "pre-existing agreement". This will depend upon the nature of the agreement. For example, if it is a legally binding agreement and the employer is in breach proceedings can be brought in the High Court.
10. The CAC handles complaints concerning an employer’s failure to comply with the terms of a "negotiated agreement". The Employment Appeal Tribunal can levy a fine of up to £75,000.
11. The standard provisions are complex. The key terms are that the employer must arrange a ballot to appoint information and consultation representatives (being at least 1 representative per 50 employees but with a minimum of 2 and a maximum of 25) and the employer must inform and consult in accordance with the detailed provisions set out in Regulation 20. The CAC handles complaints about an employer’s failure to comply with the standard provisions. The Employment Appeal Tribunal can levy a fine of up to £75,000. It is open to the employer and a majority of the information and consultation representatives to reach an agreement that replaces the standard provisions. Such an agreement needs to satisfy various requirements – broadly the same as those for a "negotiated agreement".

This article is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts at Linklaters.