Defrosting the ICE Regulations

Described in some quarters as "potentially the most significant piece of employment legislation ever to be introduced in the UK", the Information and Consultation of Employees Regulations 2004 are not to be ignored.

It is important to note that these Regulations do not impose negotiating machinery on employers. The responsibility for decision making will remain with management, but the views of employees should be actively sought and taken into account before a final decision is taken.

The new Regulations will apply to undertakings with at least 150 employees in the UK from 6 April 2005. They will then be extended to undertakings with at least 100 employees from 2007 and at least 50 employees from 2008.

Many of you - particularly those with less than 150 employees - will therefore be asking: 'Can we do nothing?' The answer is, you could. However, the follow-up question is: 'Would it be better to do something?'

As an employer, you have a choice to make. Should you:

do nothing and wait until an employee request for negotiations is made under the Regulations (if one is ever made)? or
do nothing now, but after the Regulations have come into force, notify employees of your intention to begin negotiations? or
begin negotiating now with a view to putting in place a pre-existing agreement before any employee request is made under the Regulations.

Choosing either route a. or b. will ensure that the negotiation of an information & consultation (I&C;) agreement will take place against the background of the statutory minimum default requirements, which could well prove onerous. Where there has been a statutory request/notification, any failure to negotiate an a greement within set time limits will lead to the default arrangements applying.

Choosing route c. will better enable an agreement to be tailored to the needs of the organisation and its employees. A pre-existing agreement will prevent employees triggering a request under the Regulations if certain criteria are met. You should therefore ensure it or they:

are in writing;
cover all employees of the undertaking (taking care not to cut across existing arrangements e.g. collective agreements!);
are approved by the employees (i.e. through majority ballot or signatures, or through the agreement of employee representatives representing a majority of the workforce); and
set out how the employer is to give information to the employees or their representatives and to seek their views on such information.

The factors which need to be taken into consideration when making your decision on which route to go down are set out in the table below:

Pre-existing / negotiated agreement	Default arrangement
The areas to be the subject of I&C can be tailored to the needs of the organisation and its employees.	The areas to be the subject of I&C are set out in the legislation.
I&C representatives can be elected or appointed.	I&C representatives must be elected.
There can be as many or as few representatives as the organisation and the employees choose.	There should be one I&C representative per 50 employees (or part thereof), subject to a minimum of 2 and a maximum of 25.
I&C arrangements can be direct (between managers and employees), or indirect (through employee representatives), or a combination of the two.	I&C arrangements must be indirect i.e. through elected employee representatives
A dispute resolution and penalties process can be tailored to the needs of the organisation and its employees (applies to pre-existing agreements only. Complaints about a negotiated agreement must be made to the Central Arbitration Committee).	Set dispute provisions - involving complaints being dealt with by the Central Arbitration Committee – and set penalties apply including, in certain circumstances, a £75,000 fine.
The organisation and the employees can set the timetable for negotiations.	Specific time limits for negotiations are set out in the legislation.
Separate agreements can be reached for different parts of the undertaking.	The provisions apply at the level of the “undertaking” – there is no scope for applying different arrangements to different parts of the undertaking.

To assist in making the decision, employers should undertake an audit of current arrangements now to see if they meet the needs of the organisation and its employees. You should also explore the benefits of effective I&C; arrangements and gauge the mood among staff - is there likely to be a request under the legislation? Are employees satisfied with existing mechanisms such as email/intranet communication or staff meetings? All of this will help you make an informed decision as to how to deal with the new Regulations.

Should you require further advice on carrying out an audit, choosing which route to go down, or negotiating and putting in place an agreement, please contact:

Mark Hamilton
(0141 303 2334)
[email protected]

Chris Phillips
(0141 303 2334)
[email protected]

Chris Smith
(020 7282 5731)
[email protected]

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