UK: EIRO CAR on “The effect of the Information and Consultation Directive on Industrial Relations in the EU Member States five years after its transposition”

PDF version Printer-friendly version
  • Observatory: EurWORK
  • Topic:
  • Participation at work,
  • Labour and social regulation,
  • Industrial relations,
  • Published on: 18 January 2011



About
Country:
United Kingdom
Author:
John Purcell and Mark Hall
Institution:

Disclaimer: This information is made available as a service to the public but has not been edited by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

This report provides an overview of the available data on employee information and consultation (I&C) practice in the UK in the context of the Information and Consultation of Employees Regulations 2004 that are intended to implement Directive 2002/14/EC. It covers the incidence of I&C bodies, the statutory procedures for establishing them and the wide scope provided for organisation-specific arrangements. It reports on the main findings from research concerning the subject matter, processes and outcomes of I&C, before looking at the relationship between I&C bodies and other forms of employee voice and the views of the social partners on the UK’s regulatory framework.

Questionnaire

Question 1: Trends in the incidence of undertaking- and/or establishment-level information and consultation bodies

(a) Using official statistics where possible, please provide annual data for the years 2005-2009 (inclusive) on the number and proportion (%) of undertakings and/or establishments which have an information and consultation (I&C) body or equivalent.

The ICE Regulations in the UK apply to undertakings but what little statistical data there is relates to establishments. The most comprehensive data available is for 2004 from the Workplace Employment Relations Survey (WERS). These figures refer, therefore, to the year before the ICE Regulations came into force in respect of undertakings with 150+ employees. The next WERS survey will not be published until 2012. The 2004 survey covered workplaces with 10 or more employees and sought information on the incidence of joint consultative committees (JCCs, also known as works councils and employee forums), the nearest equivalent to I&C bodies. Table 1 shows the incidence of JCCs by size of the workplace and distinguishes between workplace-level committees, those where there is a higher level JCC only (e.g. in multi-site organisations like retail banks) and those without a committee.

Table 1: The incidence of JCCs in the UK in 2004 (% of workplaces with 10+ employees)
 

Workplace-level committee

Higher-level committee

No committee

All workplaces

14

25

62

10-24 employees

4

26

70

24-49 employees

16

24

59

50-99 employees

26

27

47

100-199 employees

47

16

37

200-499 employees

59

13

28

500 or more employees

73

9

18

Source: Kersley et al., 2006: 127.

Since the previous survey in 1998 the overall rate of workplace JCCs fell from 20% to 14%. This decline was most noticeable in smaller establishments with fewer than 100 employees. Here the percentage of on-site committees fell from 17 to 10%. In workplaces with 100+ employees the incidence was stable at 54% (56% in 1998). Higher level JCCs, some with establishment committees too, were stable at 25% (27% in 1998). Overall the % of workplaces not covered by a JCC increased from 53% to 62% in the period. Early anticipation that the ICE Regulations would spur a growth in JCCs immediately prior to the Regulations’ April 2005 commencement date, especially among larger workplaces, was not realised.

The evidence on developments since WERS 2004 derives from smaller scale, less scientific surveys. However, these suggest that the Regulations have prompted both increases in the incidence of I&C arrangements and modifications to existing arrangements. For example, the annual employment trends surveys published by the CBI employers’ body showed an increase in employers reporting permanent mechanisms for informing and consulting employees from 35% in 2002 to 57% in 2006 (CBI 2006). An IRS survey (2006) found that around one-third of respondents had made changes to their I&C arrangements in the previous two years, mostly in response to the new legal framework. In an LRD (2006) survey of union representatives, one-third of respondents reported having I&C arrangements that had been drawn up, amended or reviewed in the light of the Regulations. Finally, a survey of UK operations of multinational companies (Marginson et al., 2010) found that the ICE Regulations had prompted substantial change in arrangements for employee consultation, with over 40% reporting new or modified I&C arrangements over the previous three years.

(b) Where possible, please provide data to show trends in the uptake of I&C bodies by:

(i) size of undertakings/establishments in terms of employment levels (i.e. under 50 employees, 50-99 employees, 100-199 employees; 200-499 employees, 500 or more employees or other appropriate size bands used in national statistics)

(ii) sector (broadly defined, i.e. industry/manufacturing, private services, public services).

Table 1 shows a clear size effect with workplaces with fewer than 100 employees have markedly lower numbers of I&C bodies, and as noted above it was in these size ranges that the main decline in the incidence of such arrangements was most marked. In workplaces with 200 or more employees the majority had a JCC.

Public sector workplaces were more likely to have a JCC in 2004 than those in the private sector. Thus, 22% of public sector workplaces with fewer than 50 employees had a JCC compared with 6% in the private sector. Above that size range the public sector had 45% of workplaces with a JCC compared with 37% in the private sector. Table 2 shows the distribution by industry sector.

Table 2: The incidence of JCCs in the UK in 2004 by industry sector (% of workplaces with 10+ employees)
 

Workplace-level committees

Higher-level committees

No committee

Manufacturing

21

4

75

Electricity, gas, water*

52

35

14

Construction

8

5

87

Wholesale and retail

11

31

58

Hotels and restaurants

4

28

68

Transport and communication

16

29

55

Financial services

5

57

38

Other business services

10

16

74

Public administration

42

40

18

Education

30

31

40

Health and social work

13

25

62

Other community services

14

23

62

* Fewer than 20 observations so not a reliable estimate.

Source: Kersley et al., 2006: 127.

Four sectors have lower than average incidence of JCCs – manufacturing, construction, hotels and restaurants and other business services. In only the utilities (gas, electricity and water) and public administration is the incidence of JCCs greater than 80%. It may be concluded that just before the Regulations were enacted large parts of the UK economy were not covered by consultative forums and, while we cannot be certain, it seems clear that the growth of ICE bodies since then has been limited and patchy.

(c) Please provide information on the extent of I&C arrangements in:

(i) smaller undertakings (those with fewer than 50 employees)

(ii) public administration.

See answer to question 1(b).

(d) What factors explain any increase/decrease in the incidence of I&C bodies (e.g. economic climate, legislative change, other)?

JCCs became more common in the second half of the 1970s, possibly reflecting the impact of EU-inspired debates in the UK about industrial democracy and employers’ attempts to head off pressure for legislative change by voluntary initiatives. The proportion of workplaces with JCCs began to fall in the late 1980s (earlier in manufacturing and the private sector more generally), in line with the decline in collective labour organisation charted by WERS since 1980. JCCs have traditionally been more prevalent in unionised workplaces and much of the decline in JCCs may have reflected the substantial fall in union recognition since 1980. At the same time, there has been a growing managerial preference for – and increased incidence of – direct methods of communication and employee involvement.

Legislative change – in the shape of the ICE Regulations – may account for the halt in the decline of JCCs in larger organisations found by WERS 2004 and has also provided the context for the reported increases in the incidence of I&C bodies and modifications to existing arrangements noted in the answer to question 1(a).

Despite this, a number of reasons have been advanced to explain why the take-up of I&C since the introduction of the ICE Regulations has not been more extensive.

First, for employees to ‘trigger’ a request for the negotiations to set up an I&C body, 10% must indicate in writing that they want this to happen. The minimum number of signatures required is 15 so in undertakings with fewer than 150 employees, the threshold exceeds 10%. This is widely, but not universally, viewed as being too high.

Second, there appears to be no groundswell of interest in information and consultation among employees.

Third, trade unions, which have no guaranteed rights in the Regulations, have generally shown no interest in promoting the take up of employee rights in this area. Unions’ priorities are the maintenance of collective bargaining arrangements where they exist seeking trade union recognition either voluntarily or via the use statutory union recognition procedures. The union fear is that employers with I&C arrangements covering all of their employers will prefer such bodies to collective bargaining arrangements which typically only cover a proportion of the workforce.

Fourth, employers have, in general, shown scant interest in the Regulations especially once it was realised that the easiest option was to do nothing when there was little expectation that employees would club together to trigger the statutory procedures. Many of the employers who have created an I&C body have done so outside the framework of the Regulations by creating voluntary consultative forums either as ‘pre-existing agreements’ (PEAs) as defined by the Regulations, or unilaterally, without the agreement of employee representatives or of employees via a ballot.

Question 2: Procedures for establishing I&C bodies

(a) What are the procedures for establishing I&C bodies in your country? For example, are I&C bodies mandatory (i.e. employers are obliged by law to establish them), or is their establishment dependent on employees/trade unions triggering statutory procedures? In the latter case, who can initiate the procedure? Is there a specified level of employee support required?

Under the ICE Regulations, there are a number of routes available. First, 10% of employees can ask in writing for negotiations to begin with their employer to set up an I&C body. Employees can do this directly with their employer or can send signatures to the Central Arbitration Committee (CAC) to ensure confidentiality. The CAC then checks the signatures against the list of employees supplied to it by the employer and announces the result. Second, employers may initiate the negotiation process at their own initiative. Where initiated in either of these ways, negotiations on an I&C agreement must take place between the employer and representatives elected or appointed by the workforce. The resulting ‘negotiated agreement’ must cover all employees of the undertaking and set out the circumstances in which employees will be informed and consulted – either through employee representatives or directly. Where an employer does not respond to a valid request for negotiations over the formation of an I&C body, or where these fail to result in an agreement within six months of the initial employee request, the standard (or default) provisions of the Regulations will apply. This would normally only occur when a complaint made to the CAC is upheld. The default provisions require the employer to inform/consult elected ‘information and consultation representatives’ on a range of business, employment and restructuring issues according to broadly specified procedures.

I&C bodies can also be formed voluntarily outside the statutory framework of the ICE Regulations. Where there is a ‘pre-existing agreement’ (PEA) in place, there is a higher threshold of employee support (40%) required for the initiation of negotiations under the Regulations for the establishment of new I&C arrangements. PEAs are defined as written agreements on I&C that cover all the undertaking’s employees and that have been approved by the employees (typically via agreement with employee representatives or a workforce ballot). Again, PEAs may provide either for representative-based I&C arrangements or ‘direct only’ I&C arrangements, where I&C takes place directly with employees without the involvement of employee representatives. There is nothing to stop an employer introducing I&C arrangements unilaterally, without workforce agreement, but such arrangements would provide no protection against 10% of employees triggering negotiations over new I&C arrangements under the Regulations.

(b) Please supply any available data on the extent to which I&C bodies have been:

(i) requested by employees

The only data available is that provided by the CAC concerning their statutory duties. In the period April 2005-June 2010, 14 ‘administrative requests’ (the collection of signatures for the trigger) were recorded. As far as the CAC is aware, five of these resulted in a negotiated agreement while two others led to the imposition of the standard provisions. There are no other data. In research undertaken by the Industrial Relations Research Unit (IRRU) at the University of Warwick in 25 organisations which had established or relaunched I&C bodies between 2000 and 2007, in no case did this follow an employee request (Hall et al., forthcoming).

(ii) requested by trade unions

Trade unions have no statutory rights as such to initiate the ICE Regulations’ procedures. However, they can campaign among employees and their members and coordinate the collection of signatures. As indicated above, most have chosen not to do this but in the print and telecommunications sectors the trade union Unite has been active following the tradition of maximising legal opportunities in two formerly independent unions in these sectors which now form part of Unite. The graphical, paper and media sector of Unite has records of I&C-related organising/campaigning by the union in some 40 organisations with agreements signed in half of these cases as at January 2009.

(iii) initiated unilaterally by employers.

There are no systematic data available but in the IRRU research the initiative to set up I&C bodies had come from management in all of the 25 companies studied. In 12 cases the result was a voluntary agreement or PEA but in 11 cases the I&C arrangements were introduced unilaterally by management (Hall et al., forthcoming). Similar case study findings pointing to the primacy of management have been reported by Bull (2010) and Koukiadaki (2010). While none of these research projects selected the participating organisations on a random, systematic basis, wider evidence from practitioners and commentators appears to confirm the employer-led nature of much of the I&C activity stemming from the ICE Regulations (Hall, 2006).

(c) Have the national government and/or the social partners in your country actively promoted the establishment of I&C bodies? If so, how have they done this?

No. At the time of the transposition of the Directive into UK law the government produced some publicity about the Regulations. Employers’ organisations such as the Engineering Employers’ Federation (EEF) and the professional body for HR managers (CIPD) produced guides but these explained rather than promoted. Acas, the conciliation service, ran open access one-day and half-day briefing sessions and in 2005 received many requests for advice. It is notable that when smaller enterprises came within the scope of the Regulations, Acas found that interest was low and some briefing events were cancelled through lack of numbers. The only body actively promoting I&C is the Involvement and Participation Association (IPA) but it too has found only a low level of interest.

(d) What explains the absence of I&C bodies in some undertakings/establishments in which I&C bodies are supposedly mandatory or the statutory right to trigger their introduction applies?

Many of the reasons have been discussed above especially in the answer to question 1(d). Two more general points can be made. First, neither of the social partners has shown any interest in the Regulations. The employers’ body, the CBI, opposed the Regulations from the beginning while the lead union body, the TUC, has left it to individual unions to decide how to respond. Second, and most critically, there is no tradition of state-sponsored consultation in the UK and the general tradition is one of ‘voluntarism’ where parties make their own arrangements. In practice this has traditionally meant giving primacy to collective bargaining but, while the coverage of collective bargaining has declined rapidly in the private sector and legislation has been accepted in other areas of employment relations, no domestic debate has taken place on the need for, or design of, new forms of collective institutions such as I&C bodies. The Directive, for a long time opposed by the UK government and employers, has never been fully accepted or endorsed.

Question 3: Constitutional provisions

(a) Are the structure, rights and functioning of I&C bodies in your country determined by:

(i) statutory requirements that apply to all establishments/undertakings

The only statutory requirements concerning the design and operation of I&C bodies (as opposed to means to initiate such bodies) are found in standard or default provisions in the ICE Regulations, applicable only where management fail to respond to statutory employee requests for negotiations over introducing I&C arrangements, or where such negotiations fail. As such it is very rare to find statutory I&C bodies. In the period 2005-10 the CAC made orders for the standard provisions to apply in only three cases – Moray Council, Macmillan Publishers and Bournemouth University.

(ii) organisation-specific agreements/arrangements that may differ from the statutory provisions, providing the scope for organisations to vary the design of the I&C body and the processes of information provision and consultation

Broadly, organisations are free to design their I&C arrangements in whatever way they see fit, provided it is accepted by employees or employee representatives, and need not base these on the statutory provisions. The only requirements under the ICE Regulations are that PEAs must set out ‘how the employer is to give information to the employees or their representatives and to seek their views on such information’ and that ‘negotiated agreements’ must ‘set out the circumstances in which the employer must inform and consult the employees’ and provide either for the election of I&C representatives of for the provision of information directly to employees.

(iii) a mixture of the two.

No.

(b) To what extent can and do organisation-specific agreements/arrangements differ from national statutory requirements on I&C? What motivates the parties to introduce such agreements/arrangements? Please summarise any available data on the provisions of organisation-specific agreements/arrangements.

As already noted, organisations have a largely free hand to design their own I&C arrangements and need not base these on the (minimal) statutory provisions.

The IRRU research found that the most elaborate agreements or (unilaterally-determined) constitutions underpinning I&C bodies were found in the 13 larger organisations studied. In the majority of these cases the agreements or constitutions specified the subjects for I&C in broadly similar terms to the Regulations’ default provisions. Five organisations specified consultation before decisions are taken and five specified that consultation on key matters should occur ‘with a view to reaching agreement’. In other words, many of the organisations studied did replicate some of the requirements of standard requirements (Hall et al., 2007), but as will be noted later, there is often a gap between what is written in a constitution and what actually happens.

As for motivation two points can be made. First, since neither unions, in most cases, nor employees have initiated I&C arrangements, it is the employer who decides which route to take. Second, the attraction of PEAs, and voluntary consultative bodies outside the ambit of the Regulations, is that employee representatives are unable to complain under the law to the CAC in the event of an employer failure to provide information and/or consult. Where employee are dissatisfied by the operation of PEAs, the only way they can complain is for 40% of them to ask in writing for a negotiated agreement.

(c) Are the terms of organisation-specific agreements/arrangements enforceable? What procedures – e.g. complaint to external administrative or judicial authorities (please specify which) – are available for this purpose?

The CAC is the administrative/judicial body responsible for the ICE Regulations. Appeals can be made to the Employment Appeal Tribunal (EAT) which also has responsibility for the imposition of fines. As noted above there is no avenue for employee representatives to seek redress through the CAC in the case of PEAs. Where there is a negotiated agreement employee representatives may complain to the CAC if they consider ‘that the employer has failed to comply with the terms of the negotiated agreement’. Since the terms of the agreement can be whatever the parties want, and in effect usually what management wants, much depends on how such agreements are designed to allow for a clear application to the CAC. It is expected that only a small proportion will be designed to be legally enforceable.

Question 4: The main subjects for I&C

(a) What types of information are regularly provided by senior management to I&C bodies? Please give examples.

Constitutionally, according to the IRRU research, it is common that the topics for information and consultation specified are similar to those listed in the Regulations’ standard provisions, e.g. business plans, financial performance, employment developments, organisational change, working methods, proposed restructuring etc, with some making the same distinction as the standard provisions between information provision and topics for consultation and especially where efforts should be made to reach an agreement (Hall et al., 2007, table 4).

In practice only a minority of the organisations covered in the research were what are termed ‘active consulters’ which came near to practicing I&C in the way set out in the standard provisions both in terms of the topics of I&C and in the procedure for conducting consultation. In particular it was relatively rare for consultation to take place before a decision was taken by management and for representatives to have time to consider the information, review alternative suggestions and then raise and debate them with senior management. The majority of the companies were what was termed by the research team as ‘communicators’. Here it was very rare for information to be given before major decisions, and in the very cases where it was, it might be only a few hours before the official announcement. It was also quite unusual for financial information to be provided despite being listed in the constitution. Among the ‘communicators’, management saw the purpose of the I&C body to be a forum where employees could raise their concerns with senior management and where the employee representatives would discuss management’s business decisions with their constituents and bring back any points raised at the next forum meeting. This is a very different form of I&C than set out in the standard provisions of the Regulations, but perfectly permissible under PEAs and negotiated agreements.

(b) What issues are typically the subject of consultation between management and employee representatives? Please give examples.

Where there is ‘active consultation’, the issues discussed usually relate to organisational changes such as reorganisations, cost reduction measures and changes to terms and conditions of employment beyond the annual pay award. Two examples can be given from the IRRU research. In the ‘mobile phone company’, management routinely initiated consultation and sought agreement on the business case for, and implementation of, restructuring, redundancies, outsourcing, staff transfers etc. In the ‘northern housing association’ quarterly meetings actively engaged in discussions about major changes to reduce operating costs through office reorganisation and [a] review of staff terms and conditions. Some key issues such as outsourcing of ‘out-of-hours’ cover were subject to intense consultation.

Among the ‘communicators’ it is unusual for consultation to take place if this means discussing management proposals before decisions are taken. There may be a lesser form of consultation over the way decisions are implemented. For example, at the ‘news agency’ restructuring issues were dealt with only to a limited extent, where raised by employee representatives. Questions about the possible sale of a division prompted a management commitment to schedule meetings of I&C bodies if the sale proceeded but business decisions were not tabled in advance by management. At the ‘seaside housing association’, the staff council agenda included strategic issues such as tenders won and lost but was dominated by HR issues. The main focus was on information dissemination by management. There is some evidence of consultation, but it is limited to minor changes in HR policies and procedures. (All examples are from Hall et al., forthcoming.)

More generally, figures from WERS 2004 suggest that the type of issues discussed by JCCs broadly corresponded with those specified by the ICE Regulations’ standard provisions with managers reporting that most JCCs addressed work organisation issues (81%), future plans (81%), employment issues (78%) and financial issues (65%) (Kersley et al., 2006: 129).

(c) What issues are typically raised by employee representatives themselves? Please give examples.

The main issues raised by representatives, especially in those cases where the I&C body is restricted to a communication role, concern ‘housekeeping matters’ such as facilities and operational matters from the very trivial (‘tea and toilets’) to bigger issues like performance indicators and the operation of HR policies. In some I&C bodies, representatives can ask about company plans if these have not been tabled by management but this is not normally the case.

(d) Since the onset of the recession, to what extent have I&C bodies been a vehicle for dialogue and consultation over management decisions concerning restructuring and recession-related developments? Please provide a general overview with evidence and examples.

In general terms the widespread absence of I&C bodies across the UK economy has meant that where consultation has taken place it is either been with trade unions via the collective bargaining institutions at plant or company level and/or under the aegis of the collective redundancies and TUPE legislation. Extensive consultation with trade unions was especially evident in the vehicle industry.

Where I&C bodies do exist, the IRRU research found that some were used as a forum for discussion on restructuring as indicated above. In addition to the case of the ‘mobile phone company’ cited above, at the ‘diversified technology company’ site which had a works council of union and non-union members, an intensive consultation exercise took place over many months resulting in agreed measures to reduce redundancies while reforming work organisation. This also took place in a small ‘safety company’ when orders dried up. Here seven ad hoc meetings were held in 2009 to manage substantial cost reduction and redundancies. Plans and means of implementation were influenced by the representatives (Hall et al., forthcoming).

Question 5: The nature and extent of the I&C process

(a) How often do I&C bodies typically meet with management? Is it common practice for special meetings of the I&C body to be called to consider urgent or important matters? If so, on what issues?

WERS 2004 showed that three-quarters of consultative committees met at least four times a year (e.g. quarterly), 21% met twice or three times a year and 4% met once a year or not at all (Kersley et al., 2006).

The IRRU research showed that the most active I&C bodies – the active consulters – often met monthly. A common feature of the active consulters was the use of special meetings called by management to consider proposals for organisation change to allow consultation before the decision was finalised and announced. Among the ‘communication’ I&C bodies special meetings were rare but in some cases were called a few hours before an announcement was made.

(b) How does consultation take place? For example, is information on proposed changes provided by management so that employee representatives can prepare a considered view? Do managers provide a reasoned response to employee representatives’ opinions? Examples of good and poor practice would be helpful.

In WERS 2004, 43% of management respondents said that their usual approach to consultation was to look to the JCC to provide solutions to problems while a further 45% said that usually sought feedback from the committee on a range of options put forward by management. The former approach of providing solutions can be expected to require representatives to prepare a considered view, while feedback does not necessarily require this.

The IRRU research would suggest that the ‘providing solutions’ approach was rarer than implied by the WERS data but it did take place among some of the active consulters especially where working groups or sub-committees were established to look at a particular issue. But overall it seems that this type of planned and sequential consultation is unusual. Examples of poor practice include where there are no pre-meetings of employee representatives to consider issues on the agenda of the I&C body. This is often because management do not table substantial proposals for discussion. For example, at the ‘urban housing association’ in the IRRU research, a planned merger with another housing association was not raised by management at the regular I&C body meeting and nor did representatives ask about it despite it being widely rumoured.

(c) Is information usually provided on a confidential basis to the I&C body before management decisions are taken and announced? Are there examples of I&C not taking place due to confidentiality considerations?

Where management seeks consultation prior to a decision being made and announced it is usual for confidentially rules to apply. There are some examples of management not consulting over a decision because they believe (wrongly) that Stock Exchange rules prohibit the sharing of such information prior to the public announcement. However this usually only occurs in those undertakings where management do not generally consult over planned decisions.

(d) Please outline what guarantees and protections employee representatives usually have, e.g. time off work, training, material and financial resources, facilities, protection against dismissal/ discrimination, access to workers.

Under the ICE Regulations, I&C representatives are only entitled to paid time off to carry out their duties and protection against dismissal and detriment. It is important to note that these statutory rights only apply to those representatives who negotiate to create an I&C body and/or serve on it under a ‘negotiated agreement’ or the Regulations’ a ‘standard provisions’. Representatives under a PEA have no rights ‘but it is good practice that employers will follow the provisions established elsewhere in the Regulations’ (Acas, 2009: 4). In practice most employers do provide paid time off and in some larger organisations, especially those with active consultation, facilities are provided. Training for representatives was provided in fewer than half of JCCs according to WERS 2004 but was provided almost universally by the case study organisations in the IRRU research. Training is often provided by the HR manager or sometimes using outside organisations such as Acas or the IPA. Trade unions sometimes provide training for union members who are representatives on I&C bodies.

(e) Can employee representatives seek external advice on how to handle difficult topics for consultation (e.g. from trade unions, external consultants)? In the case of the latter, who pays?

It is most unusual for representatives to have access to external advice unless they are trade union representatives. One case is known of a negotiated agreement which provides for I&C representatives to seek expert advice provided this is approved by the company. It will be paid by the company.

Question 6: Practical outcomes of consultation

(a) What evidence is there, if any, of the consultation process resulting in the modification of management decisions and/or the process or timetable for their implementation? Please give an overview of the impact of consultation with examples.

WERS 2004 found that influence over decisions depended on the way management approaches consultation. Where there is an invitation to the consultative committee to identify solutions to problems 35% of managers thought the committee was ‘very influential’. Where consultation was used to consider the range of management proposals 19% of managers said the committee was ‘very influential’. And where the JCC was only invited to provide feedback to management on the decision only 11% felt the committee was ‘very influential’. There is no reason to suppose that these data have changed since 2004. One characteristic of the most ‘active consulters’ in the IRRU research is that the I&C body had influenced management decisions as in the cases ‘mobile phone’, ‘diversified technology’ and ‘safety’ companies cited above.

(b) How many complaints per year concerning the operation of I&C procedures (e.g. employers not consulting in circumstances where consultation is obligatory) have been lodged with administrative or judicial authorities since 2005? Who were the claimants and what were the key issues? What proportion of these applications were upheld? What sanctions were imposed?

It is important to bear in mind that a significant proportion of UK enterprises are believed not to have an I&C body despite being covered by the ICE Regulations and that the vast majority of those that do will either have PEAs or arrangements that fall outside the Regulations by being unilaterally introduced by management. In these cases it is not possible to take a complaint to the CAC. For these reasons the number of cases taken to the CAC is very low – 32 between 2005 and June 2010. Of these 20 were concerned with the various stages of the procedures for establishing an I&C body and only 12 with the operation of a negotiated agreement or the standard provisions. Of these, four were not upheld by the CAC and eight were withdrawn prior to a ruling. In one of these, the CAC ruled that there was a PEA in operation and not a negotiated agreement and that the CAC did not have jurisdiction to consider the complaint (Selormey/Electronic Data Systems Ltd). In another the CAC ruled that the complaint was made too late as it was submitted more than three months after the employer had taken the decision but had not consulted (Archibald/Gardner Denver Ltd). In two further cases, both involving the same employer, it was ruled that the matter complained about was not one that fell with the auspices of the standard provisions of the Regulations (Gale and Darnton/Bournemouth University).

In three cases the EAT has issued financial penalty orders against an employer. The maximum available penalty is GBP 75,000. One order was for GBP 55,000, another for GBP 10,000 and a third for GBP 20,000. These all concerned cases where the employer had not arranged for the ballot for I&C representatives where the standard provisions applied.

Question 7: Relationship between I&C bodies and other forms of employee voice

(a) Can, and if so do, trade unions play a part in the establishment of I&C bodies and in their operation? Do external trade union officers often sit on I&C bodies? How common is it for I&C bodies to include both union and non-union employee representatives?

As noted, trade unions as such have no rights under the Regulations – they are not even mentioned. And most unions do not play an active role in the establishment of I&C bodies, as noted above. Yet it is known from WERS 2004 that JCCs are more prevalent in workplaces where unions are present than where they are not. In places where a union was recognised for collective bargaining, 29% had a JCC (compared with 14% overall). The decline in JCCs since 1998 was concentrated in establishments which did not recognise trade unions. The more interesting statistic is the prevalence of committees with both union and non-union representatives, sometimes called ‘dual’ structures but the preferred term is ‘hybrid’. According to WERS 2004, 11% of JCCs were composed only of union representatives, 67% were wholly non-union and 22 % were hybrids. In workplaces where unions had at least one representative and where there was a JCC 52% were hybrids. In some cases union external officers are involved and may be members of the I&C body.

(b) Is there any overlap between the remit of I&C bodies and trade union-based collective bargaining? If so, how are such issues resolved?

Generally speaking trade unions have sought to preserve their distinctive role in collective bargaining, and in hybrid structures it is usual for collective bargaining items to be kept from the I&C body agenda, although there are some exceptions. In some workplaces unions have been offered seats on the ICE body but have declined to attend, or if they do, to be there as an observer. One effect of this is to denude the I&C body of ‘meaty’ issues since they dealt with under collective bargaining. Bull (2010) suggests that in one of her companies management took collective bargaining more seriously than consultation with non-union staff. Further, the unions were able to use the disputes procedure to escalate an issue to a higher level in the company, something I&C representatives could not. On the other hand, the IRRU research provides an example of where the union has used the I&C body to its advantage saying that it gave access to senior management which it did not have in collective bargaining.

(c) Is the consultation required by the collective redundancies/transfer of undertakings Directives carried out via I&C bodies, trade unions or other employee representatives?

In most cases I&C bodies are not involved for the simple reason that they do not exist in many places. Where employers recognise trade unions, they must consult them over redundancies and transfers. In the absence of recognised unions, employers must consult elected employee representatives, either via a permanent I&C body or via representatives specially elected for the purpose. It is not known how many employers have done the latter. The ICE Regulations’ standard provisions stipulate that employers must consult I&C representatives over redundancies and transfers but, if employers recognise a union and prefer to consult only via the union, this is permissible provided the I&C body is informed in advance. In the IRRU research, one unionised ‘active consulter’ with a ‘hybrid’ I&C body used this as the forum for consultation over redundancies.

(d) Is the use of direct forms of employee involvement by management through such things as team briefings seen as complementary to or in competition with the I&C body?

The use of direct forms of employee involvement is widespread across the UK economy. There is some evidence from the IRRU research that where the I&C body is only used for communication purposes it fails to develop a distinctive voice and becomes ‘crowded out’ by direct communication to employees via team briefings, line manager interactions, company news media and workforce meetings. A notable feature of organisations with active consultation and some with more effective types of communication bodies is that HR management often recognise the need to publicise the work of the I&C body and ensure that representatives are able to communicate with their constituents, for example by being given an opportunity to speak at team briefing events.

Question 8: Views of the social partners

(a) What are the attitudes of the main employer and trade union organisations in your country towards (i) the value or necessity of I&C bodies and (ii) the operation of I&C bodies in practice, especially in a recession?

The main employer body, the CBI, did not want the Regulations and has adopted a very low profile on them since their enactment. The central union body, the TUC, has said little and, as noted, most unions are lukewarm toward the establishment of I&C bodies. These attitudes have not changed with the onset of recession. It may be noted that where a union claims recognition under the separate statutory trade union recognition procedure it is quite usual to find that the company has recently set up an I&C body as a form of union avoidance. Unions continue to prioritise union recognition and collective bargaining as the principal vehicle for seeking to defend and advance their members interests, including through the recession, and most discussion of recession-related issues has been via collective bargaining where it exists

(b) Have the social partners, jointly or separately, conducted any review of the operation of the national regulatory framework governing I&C? What is their assessment of its effectiveness? Is there any pressure from the social partners for reform?

There has been no review and there appears to be no pressure for reform from either the CBI or the TUC. Both organisations see the ICE Regulations as something of a ‘damp squib’. There appears to be little or no pressure from employers for changes to the Regulations: the CBI’s recent ‘employment agenda’ for the new coalition government was silent on the Regulations but did advocate deregulatory changes in the area of redundancy consultation (UK1007039I). It has been argued that the reform of key aspects of the ICE Regulations is necessary to overcome trade union ambivalence towards the legislation and the low uptake of its provisions by employees (Hall, 2010; Koukiadaki, 2009), but unions show little sign of actively advocating such changes.

Commentary by national correspondents

The 2002 EU I&C Directive was widely seen as having far-reaching implications for UK law and employment relations practice, but the highly flexible, light-touch regulatory approach adopted by the UK Regulations transposing the Directive has limited its impact to date. The available evidence suggests that the ICE Regulations have prompted considerable voluntary activity in terms of reviewing, modifying and introducing I&C arrangements but that this has been largely employer-led. The IRRU research project suggests that, while most of the I&C bodies studied were confined to a communications role and to dealing with low-level housekeeping issues, a minority have developed into an effective vehicle for ‘active consultation’ on strategic issues such as restructuring. But I&C practice reflects internal organisational dynamics – particularly the dominant role of management – rather than the legal framework. The Regulations themselves have come to be regarded by both employer groups and trade unions as largely irrelevant.

John Purcell and Mark Hall, IRRU, University of Warwick

References

Acas (2009) Non-union representation in the workplace

Bull E (2010) ‘The impact of the Information and Consultation of Employees Regulations on medium sized firms’, doctoral thesis, Kent Business School, University of Kent

CBI (2006) Employment trends survey 2006

Hall M (2006) ‘A cool response to the ICE Regulations? Employer and trade union approaches to the new legal framework for information and consultation’, Industrial Relations Journal 37, 5, 456-472

Hall M (2010) ‘EU regulation and the UK employee consultation framework’, Economic and Industrial Democracy 31, 4S

Hall M, S Hutchinson, J Parker, J Purcell and M Terry (2007) Implementing information and consultation: early experience under the ICE Regulations, Employment Relations Research Series 88, Department for Business, Enterprise and Regulatory Reform

Hall M, S Hutchinson, J Purcell, M Terry and J Parker (forthcoming) Information and consultation under the ICE Regulations: evidence from longitudinal case studies. Report for Department for Business, Innovation and Skills

IRS (2006) ‘A two-way process: informing and consulting employees’, IRS Employment Review 859, 8-15

Kersley B, C Alpin, J Forth, A Bryson, H Bewley, G Dix and S Oxenbridge (2006), Inside the workplace: findings from the 2004 Workplace Employment Relations Survey, Routledge

Koukiadaki A (2009) ‘Reflexive law and the reformulation of EC-level employee consultation norms in the British systems of labour law and industrial relations’, International Journal of Law in Context 5, 4, 393-416

Koukiadaki A (2010) ‘The establishment and operation of information and consultation of employees arrangements in a capability-based framework’, Economic and Industrial Democracy 31, 3, 365-388

LRD (2006) ‘Information and consultation Regulations make their mark’, Workplace Report (April), 15-17

Marginson P, P Edwards, T Edwards, A Ferner and O Tregaskis (2010) ‘Employee representation and consultative voice in multinational companies operating in Britain’, British Journal of Industrial Relations 48, 1, 151-180

Useful? Interesting? Tell us what you think. Hide comments

Add new comment

Click to share this page to Facebook securely

Click to share this page to Twitter securely

Click to share this page to Google+ securely

Click to share this page to LinkedIn securely