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How do we start negotiations on employee information and consultation rights?
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.
A valid request can be either a single written request from at least 10% of the employees, or a number of separate requests, which together represent at least 10% of the employees. This is subject to a minimum number of 15 employee requests and a maximum of 2,500. In calculating the 10% 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.
Where there are pre-existing information and consultation agreements, it is harder to initiate new negotiations on information and consultation under the Regulations. The following special arrangements apply:
- The request to introduce new information and consultation arrangements must still be made by at least 10% of employees in the 'undertaking' (i.e. company or organisation), though if it is made by more than 40% of employees, the employer has no option but to start negotiations.
- If the employee request for negotiations has been made by fewer than 40% of employees (though still more than 10%), the employer may, instead of opening negotiations, hold a secret ballot of the whole workforce to ascertain whether they support the request for new negotiations. If 40% or more of the workforce vote in the secret ballot and the majority of those who vote endorse the request, then the employer must enter into negotiations on a new agreement.
Where there is not the required level of employee support for the request, or a ballot fails to secure a majority, then the employer does not need to enter new negotiations, and may just continue with the existing arrangements.