Reduced percentage for requesting an information and consultation agreement in the workplace

The ICE Regulations

In 2005, The European Parliament and Council Directive 2002/14/EC was transposed into UK law, setting out a framework for implementing information and consultation agreements with employees if validly requested (the ICE Regulations).

Currently, the ICE Regulations stipulate that if a UK business employs 50 or more employees and 10% of these (or 15 employees whichever is greater) request an I&C agreement, one must be put in place.

Once a valid request is received, the parties are free to choose the form of information and consultation mechanism they would like to operate. This is then formalised under an I&C agreement. I&C agreements can therefore take the form of national works councils, employee engagement forums and can even be established via trade union recognition agreements if specific conditions are met.

Ultimately, the ICE Regulations reflect EU social policy on employee engagement. The Regs aim to encourage transparency and communication between companies and their workforce by ensuring that employees could establish an informative and consultative body within their business.

Once an I&C agreement is established, employers must inform and consult with employees about;

• the businesses economic situation;
• job prospects; and
• any major changes affecting how work is organised.

In reality, I&C agreements are often established with a much wider scope for informing and consulting but these are the minimum obligations on the employer.

The above are in addition to the statutory requirements for an employer to consult their workforce on matters such as in TUPE transfers, multiple redundancies and certain changes to pension schemes.

April 2020 Changes

Matthew Taylor in his review of modern working practices in 2017 criticised the ICE Regulations for their effectiveness.

The 10% threshold was described as “restrictive” as “only 14% of workplaces in organisations with 50 or more employees had an on-site joint consultative committee or works council in 2011”.  It seems that the Regs were not being utilised by employees with Taylor attributing this to their inaccessibility.

As such, Taylor urged the Government to re-examine the Regs, recommending that their scope be extended to include “workers” as well as “employees”. He also recommended that the threshold for implementation should be reduced from 10% to 2% of the workforce making the request.

In response, and to deliver up on part of Taylor’s recommendations, from 6 April 2020 the threshold of the number of employers needed to make a valid request will be lowered from 10% to 2%.

The Government agreed that there had been little take up of the rights under the Regs. Their hope is that by lowing the threshold, it will make it easier for employees to establish I&C mechanisms, as far less employees will be required to make up a valid request.

The Impact

Will we see a rise in valid requests post April? We have to wait and see.

This may be a good time for employers to examine any current information and consultation mechanisms they already have in place, such as existing employee forums, to see whether they meet the requirements of a “pre-existing agreement” under the Regulations. This would mean that if a valid request was received, the employer could rely on their existing I&C mechanism and would not be required to set up a new one.

The Government is encouraging employers to welcome this change as an opportunity rather than a threat. I&C agreements can provide a valuable tool to promote employee engagement by empowering the workforce with a voice. Reps elected via the I&C can also be consulted on the mandatory topics, discussed earlier in this article, meaning that the employer does not need to carry out an election process for representatives should they be planning a larger-scale restructure for example. An I&C agreement can provide the framework to allow for the consultation process to take place, as long as it gives the representatives a clear mandate. They can also be seen as a useful adjunct to strengthen wellbeing and performance which helps address workplace stress and anxiety issues.

The response from the unions to the change in threshold has been mixed. Ultimately, this could pose a threat to trade union collective bargaining. Employees may feel that with their own I&C agreement, a recognised union in their business is not required. However, other unions have praised the changes as a commitment by the Government to empower employee voices. These take the stance that any mechanism of information and consultation should be seen as a positive, whether it takes the form of a union collective bargaining agreement or an I&C agreement.

It is interesting to see the Government implementing this change to the ICE Regs considering that they are borne out of a European Directive. With the UK’s official departure date from the EU approaching, the Government has offered no guidance or indication on how Brexit will Impact employment law in the UK, from which a significant amount derives and is transposed from EU legislation. We assume the ICE Regs will remain in situ, for now.

If a valid request is made under the ICE Regs, whether now or after April, the employer has 3 months from receipt of the request to start negotiations. If you would like further advice on the ICE Regulations, including whether any existing mechanisms your business operates would be deemed sufficient as a valid I&C agreement under the Regs, get in touch with one of our team. Our HR consultancy, Forbury People, also offers employee engagement ideas and practical support to our clients.