The Information and Consultation of Employees Regulations 2004 (ICE) make a clear distinction between where there are pre-existing information and consultation agreements and where there are not.
The government’s intention when introducing the new laws was to encourage flexibility and to support existing voluntary arrangements, such as union recognition agreements. If at the date of a workforce request to start negotiations for consultation rights, there are already arrangements in place – such as union recognition agreements – meeting minimum requirements and catering for the entire workforce, the employer is not obliged to negotiate a new ICE arrangement unless at least 40% of the workforce wants this.
A pre-existing agreement might be with a union, works council or other type of staff forum. However, to qualify as a pre-existing agreement, it must cover the entire workforce, and it must have been approved by employees (i.e. not imposed on them) and must set out how the employer will inform and consult.
Where there aren't any pre-existing information and consultation agreements, an employer can start negotiations on information and consultation themselves. However, in general, employers do not have to do this unless they receive a valid request from the workforce.
The threshold for triggering a valid ICE request is 2% of qualifying employees (this was reduced from 10% in April 2020), subject to a 15-employee minimum. In calculating the 2% threshold, part-time employees are counted as full-time employees, although those working fewer than 75 hours per month can each be counted as half an employee if the employer so wishes. Agency workers are not included in the calculation.
Where a valid request is made, the employer must enter into negotiations within one month with employee representatives (elected or appointed by the workforce) in an effort to reach an agreement on information and consultation arrangements.