Leading publisher in breach of information and consultation procedures

The Central Arbitration Committee recently ruled that a major publishing company – Macmillan Publishers – was in breach of the UK’s Information and Consultation of Employees Regulations 2004 and must now hold elections for information and consultation representatives as required by the regulations’ default provisions.

In February 2007, in the first decision of its kind, the Central Arbitration Committee (CAC) upheld a complaint from the trade union Amicus that Macmillan Publishers Ltd was in breach of its responsibilities under the UK’s Information and Consultation of Employees (ICE) Regulations 2004 (UK0502103N) and ordered the company to hold elections for information and consultation representatives as required by the regulations’ default provisions.

Regulatory requirements

Under the ICE Regulations, where requested by 10% of employees, employers must initiate negotiations to reach an agreement on information and consultation arrangements. Where no agreement can be reached within six months, ‘standard information and consultation provisions’ specified by the regulations apply. These require the employer to inform and consult elected employee representatives (one representative for every 50 employees or part thereof) on:

  • business developments (information only);
  • employment trends (information and consultation);
  • changes in work organisation or contractual relations, including redundancies and business transfers (information and consultation ‘with a view to reaching agreement’).

Enforcement of the standard information and consultation provisions, where they apply, is via complaints to the CAC and the Employment Appeal Tribunal (EAT) (UK0608019I). The regulations provide for a maximum penalty of £75,000 (about €111,360 as at 27 June 2007) to be issued against employers in cases of non-compliance.

Events at Macmillan

In March 2006, the requisite number of Macmillan employees submitted a request for negotiations over an information and consultation agreement. In November, Amicus officials, acting on behalf of the employees, complained to the CAC that the company had failed to initiate negotiations within six months of this request. Therefore, the regulations’ standard information and consultation provisions applied, but the company had failed to hold a ballot for the election of employee representatives as required by Regulation 19 and Schedule 2 of the regulations.

CAC ruling

The CAC panel accepted that the employees’ request for negotiations was valid. The company told the CAC that it had, or was in the process of reaching, agreements with employees to underpin long-standing site-based consultative committees. However, the CAC noted that these did not constitute a ‘pre-existing agreement’, which under the regulations would have entitled the company to hold a ballot among employees to determine whether a higher threshold of at least 40% of the workforce supported the request for new negotiations. Moreover, no such ballot was held. The panel found that the company was under a duty to initiate negotiations in response to the employee request but had failed to do so. The standard information and consultation provisions therefore applied after six months but the employer also failed to arrange for the election of the requisite information and consultation representatives.

The CAC ordered the company to arrange for the election of the relevant number of such representatives from the workforce.

Union and company reaction

Commenting on the outcome of the case, Amicus Senior Organiser Jamie Major stated: ‘Amicus members at Macmillan have had to fight hard at every stage and we are pleased to say they have won another victory, although it would have been better had the company sat down with us and negotiated an information and consultation agreement. We would now encourage Amicus members to become candidates in the forthcoming elections and ask that all employees support candidates that they can trust to hold the company to account.’

The company expressed ‘disappointment’ at the ruling, adding: ‘We will be studying the decision to see how we can best comply with it’.

Commentary

This case is part of a long-running Amicus campaign to extend employee representation at Macmillan, using both the ICE Regulations and the trade union recognition legislation (UK0201171F). One year previously, the CAC upheld a complaint under the ICE Regulations that Macmillan had failed to respond adequately to Amicus’s request for information on company structure and employment levels, and ordered the company to disclose this data to the union (UK0603039I). Separately, Amicus also secured a CAC declaration during 2006 that the company should recognise the union for collective bargaining in respect of warehouse workers at the company’s Swansea site in southern Wales.

While little litigation has yet arisen under the ICE Regulations, this case demonstrates the scope for unions and employees to use the law effectively against defaulting employers.

Mark Hall, IRRU, University of Warwick

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