Tribunal issues ruling on information and consultation

In April 2006, the UK’s Employment Appeal Tribunal (EAT) issued its first judgement in a case arising under the Information and Consultation of Employees Regulations 2004. The EAT’s interpretation of the regulations has important implications for both employers and trade unions seeking to rely on ‘pre-existing agreements’ as allowed by the legislation.

On 20 April 2006, the UK’s Employment Appeal Tribunal (EAT) issued its first judgement in a case arising under the Information and Consultation of Employees (ICE) Regulations 2004 (UK0502103N). The EAT dismissed appeals from both parties against the decision of the Central Arbitration Committee (CAC) in the [case of Moray Council and Mr J Stewart](http://www.cac.gov.uk/I&C/IC3 14 Dec Moray Council Reg 10(1) Decision (Final Version-Amended).htm) (UK0602101N); in doing so, the EAT interpreted the meaning of Regulation 8 of the ICE Regulations in a way that has important implications for both employers and trade unions seeking to rely on ‘pre-existing agreements’ (PEAs) to meet the terms of the legislation.

Background

Mr Stewart, an employee of Moray Council, had lodged a petition with the council in which over 500 employees requested negotiations under the ICE Regulations to reach an agreement on employee information and consultation arrangements. The council argued that PEAs were in place covering all of the council’s employees and therefore that, as provided by the regulations, it was entitled to hold a ballot to ascertain whether the wider workforce endorsed the employees’ request.

Under Regulation 8, to be valid, PEAs must:

• be in writing;

• cover all employees;

• have been approved by the employees;

• set out how the employer is to give information to employees or their representatives and seek their views on such information.

The council contended that three documents – the framework local recognition and procedure agreement covering teachers and related staff, the council officer trade union group constitution and the protocol for consultation with trade unions – constituted PEAs for the purposes of the ICE Regulations, and covered all employees regardless of whether they were union members.

However, in Mr Stewart’s view, these three documents represented agreements with trade unions and provided only for consultation with unions, with no provision for informing and consulting non-members. He therefore argued that they did not cover all employees and had not been approved by the employees.

CAC decision

The CAC decided that the agreements related to negotiation and consultation for council employees without differentiating between union members and non-members, and that they did in fact cover all employees. It also decided that the agreements’ approval by trade union representatives, and the fact that a majority of the workforce belonged to the unions recognised by the council, constituted approval by the employees under the ICE Regulations.

However, the CAC concluded that one of the three agreements – the framework local recognition and procedure agreement covering teachers and related staff – was insufficiently detailed about how the council was to give information to the employees or their representatives and seek their views on it, and therefore did not fulfil the requirements of Regulation 8(1)(d).

Accordingly, the CAC upheld Mr Stewart’s complaint that the PEAs relied on by Moray Council did not fulfil the necessary conditions that would entitle the council to proceed with a ballot, and told the council that it must initiate negotiations in response to the employee request received.

Outcome of the appeal

Moray Council appealed the CAC ruling to the EAT and Mr Stewart entered a cross-appeal. In its judgement, the EAT strongly supported the CAC’s view that the provisions of the teachers’ agreement failed to set out adequately how the employer was to give information to the employees and seek their views. The EAT also accepted that it was appropriate to regard employees as being covered by the terms of an information and consultation agreement if they fell within the categories of employees intended to be regulated by that agreement, whether or not they were union members.

However, in relation to the CAC’s conclusion that the agreements had been approved by the employees, the EAT commented that the CAC should have satisfied itself that the employees covered by each agreement had given their approval for that particular agreement rather than looking at the matter in aggregate. Where there are a number of agreements, the necessary approval existed only if each of the agreements had been approved by the employees covered by that agreement.

The EAT also considered whether the CAC was entitled to find that employee approval for a union-negotiated agreement existed because the majority of employees it covered were union members. Noting that Regulation 8 does not prescribe any particular way in which employee approval needs to be demonstrated – and making no reference to the Department of Trade and Industry’s guidance on this point – the EAT stated that ‘it will usually be legitimate to infer approval if, at the time the agreement was made, the majority of the employees covered by the agreement were members of the union or unions which are party to that agreement’.

However, where union members were in a minority, it would be necessary for the employer to be able to establish the relevant approval in some other way, prior to receiving an employee request for negotiations under the ICE Regulations.

Mark Hall, IRRU, University of Warwick