Key cases highlight impact of consultation legislation
Few employee or trade union complaints were brought under the UK’s Information and Consultation of Employees Regulations (ICE) between 2005–2011, a recent analysis has revealed. However, it also shows that decisions on ICE cases by the Central Arbitration Committee and Employment Appeal Tribunal have addressed key aspects of the legislative framework with significant implications for both employers and unions, suggesting that the regulations can be highly effective.
The Information and Consultation of Employees (ICE) Regulations first came into effect in England, Wales and Scotland in April 2005, applying initially to businesses with 150 or more employees (UK0502103N). The ICE regulations were then extended to those with 100–149 employees in April 2007, and to those with 50–99 employees in April 2008. The collective provisions of the regulations are enforced via complaints to the Central Arbitration Committee (CAC). The Employment Appeal Tribunal (EAT) hears appeals and is responsible for issuing penalty notices. Separate arrangements apply in Northern Ireland.
This article reviews the enforcement cases that have arisen to date, highlighting the number and outcome of complaints made, the main issues involved and the implications of key rulings for employers, employees and trade unions.
Number and outcome of complaints
From April 2005 to the end of December 2011, 40 complaints relating to 22 organisations were submitted to the CAC by employees or trade unions. Of these, 22 resulted in decisions by a CAC panel. The other complaints were withdrawn without reaching this stage. The CAC upheld the applicants’ complaints in eight cases and rejected 14 of them.
In three cases where the CAC upheld the complaint, the applicants applied to the EAT for a financial penalty against the employer (discussed further below). In two cases one or both of the parties appealed to the EAT after the CAC’s decision, but in both cases the appeal was dismissed. In two further cases an appeal was initiated but the EAT found no reasonable grounds for the appeal.
The largest group of applications to the CAC, seven in all, has been for orders under the regulations’ default provisions (regulation 19(4)) requiring the employer arrange the election of information and consultation representatives. In these cases applicants claimed the employer failed to respond appropriately to an employee request for negotiated information and consultation arrangements, or did not do so within the required timescale. Five of these complaints were upheld by the CAC. Three cases were followed up with successful applications to the EAT for a penalty notice against the employers concerned.
In the case of Amicus/Macmillan Publishers (UK0706069I), the CAC upheld the complaint from the union and ordered the company to arrange a ballot to elect information and consultation representatives. The union pursued the matter to the EAT, which issued the first ever penalty notice under the regulations (UK0708039I). The EAT considered the company’s actions to be a ‘very grave’ disregard of the regulations and set the penalty at GBP 55,000 (€65,955 as at 6 March 2012). The maximum available penalty under the regulations is GBP 75,000 (€89,938). In the other two cases – Brown/G4 Security and Darnton/Bournemouth University – the penalties assessed by the EAT were relatively low at GBP 20,000 (€23,984) and GBP 10,000 (€11,991) respectively, reflecting what the EAT considered to be less serious breaches of the statutory requirements.
The next largest category of complaints to the CAC – five cases – concerned the alleged failure of employers to comply with the terms of either a negotiated agreement or the regulations’ standard provisions (regulation 22(1)). None of these complaints were upheld by the CAC. The most significant CAC decision was in the case of Gale/Bournemouth University. The CAC determined that the proposed dismissal of 12 staff was not a ‘substantial change’ – and therefore not subject to consultation under the standard provisions – in the context of the university’s total workforce of 1,300 staff.
The third largest category – three complaints – concerned the alleged failure of employers to provide employment data requested by employees or their representatives (regulation 6(1)). The CAC rejected two of these complaints on the grounds that the employer had acted consistently with the regulations. However, in the case of Amicus/Macmillan Publishers, the CAC ruled that the company was required to disclose data on the establishments, sites and/or plants that make up the undertaking and the number of employees within each of those units. This represented an expansive interpretation of employees’ entitlement to data under the regulations, and arguably one that is potentially highly useful to unions in complex organisations in terms of developing company-specific organising strategies.
A key further case was that of Stewart/Moray Council (UK0602101N), which raised important issues concerning the nature and approval of ‘pre-existing agreements’ that can pre-empt the application of the regulations’ provisions (regulation 10(1)). In this case, the CAC determined that union recognition agreements could potentially constitute pre-existing agreements. However, it ruled that one of those relied on by Moray Council did not qualify because it was ‘insufficiently detailed’ about the process for informing employees and seeking their views. The CAC also decided that the approval of such agreements by trade union representatives, where a majority of the workforce belonged to unions recognised by the council, constituted approval by the employees as required by the ICE Regulations. On appeal, the EAT upheld the CAC’s decision but emphasised that where union members were in a minority it would be necessary to establish the requisite approval in some other way (UK0608019I).
The low volume of complaints to the CAC reflects a more general picture of only limited engagement with the ICE Regulations by trade unions and employees (UK1009029Q). However, decisions by the CAC and EAT have addressed key aspects of the legislative framework and have had significant implications for both employers and unions. A number of the leading cases, particularly those concerning Amicus/Macmillan Publishers, demonstrate that the regulations are capable of being used highly effectively by unions against defaulting employers.
Mark Hall, IRRU, Warwick Business School