As the anniversary of the Information and Consultation of Employees (ICE) regulations approaches in April, Louise Birkett examines why this law is so problematic and how employers should deal with it.
April sees the second anniversary of the Information and Consultation of Employees (ICE) regulations. It’s also the month in which they are extended to cover organisations with 100-149 employees.
Assessments of ICE’s first two years indicate the regulations have had a chilly reception. Yet at the same time, research has been bemoaning the poor quality of information, consultation and engagement in the workplace.
So what’s the problem?
The starting point is that ICE is, essentially, voluntary. Unless organisations receive a request from ten per cent of the workforce there is no statutory reason to adopt it – although the business benefits of better workplace communication are frequently cited, most recently by both the Chartered Institute of Personnel and Development and the DTI.
Secondly, the regulations are complex and additional confusion was probably caused by the apparent insistence that ICE equals a committee. The directive the regulations stem from says that ‘national practices’ should be followed. Although for many member states this did equate to a works council or committee, this did not apply to Great Britain or Ireland.
Thirdly, according to Mark Hall of the Industrial Relations Research Unit at the University of Warwick, unions – which might have been expected to push for the regulations’ adoption in workplaces – have adopted a “primarily defensive stance” towards ICE. This is supported by IRS research which revealed that although Amicus had asked for information and consultation provision at one firm, other unions had not been enthusiastic and the request had been turned down.
As a result of the above factors, it’s a piece of legislation that many may have felt it’s safe to ignore.
But in this case ignorance isn’t necessarily bliss. Cases under ICE are decided by the Central Arbitration Committee (CAC) and then move onto the Employment Appeal Tribunal (EAT) before joining the usual appellate system. It probably comes as no surprise to discover that, so far, there have only been a handful of cases relating to ICE – and, at the time of writing, only one had made it as far as the EAT.
Cases so far have centred round the issue of pre-existing agreements – and there is an apparent discrepancy between the EU directive which produced ICE and the DTI’s guidance to the regulations.
A reading of the directive indicates you can’t have a pre-existing agreement after the regulations first came into force – which is arguably unfair for smaller companies for whom transitional arrangements apply. Meanwhile, the DTI merely says a pre-existing agreement can only exist if it’s in force before an employee request is received. But it’s probably a measure of how little ICE is understood that this isn’t the point which has come before the tribunals.
Instead, we’ve had a, frankly strange, case where a company appears to have tried to establish pre-existing agreements at some of its sites after it had received a valid employee request – which was sent, perfectly legitimately, via the CAC. Presumably, the union in question knew that difficulties might arise.
Then there has been the question of ICE’s requirement that all employees are covered. This can be done by separate site-level agreements and the EAT held that where the pre-existing arrangements were agreed by unions, this does include non-union employees. But one of the agreements in question failed because it didn’t set out how employees would be informed and consulted.
With the exception of the question about non-union employees, these are perfectly straightforward breaches of ICE and, on receipt of a request, the question of what to do next could be found through legal guidance or on the DTI website.
That begs the question: what is the problem with informing and consulting employees?
The requirement under ICE is that there is an information and consultation system. This has been criticised by academics who say the EU envisaged continental-style works councils – but there is EU case law to support the government’s stance on this.
Therefore, that means normal methods of communication in your workplace, such as staff magazines, intranets, face-to-face briefings and focus groups plus emerging methods such as blogging and RSS can all form part of a system.
It’s important to remember that the only place in which ICE requires negotiation is in setting up an information and consultation system. After that, it requires the provision of information on certain subjects and consultation, which is defined as the ‘exchange of views and establishment of a dialogue’.
Research by IRS A two-way process: informing and consulting employees found that:
- 96 per cent use noticeboards
- 87 per cent use departmental or team meetings
- 88 per cent use email updates
- 74 per cent use company intranets to disseminate information
- 76 per cent use a printed publication such as a newsletter or magazine
- 55 per cent have a permanent consultative forum or committee
- 57 per cent cite trade unions as a method by which employees are informed and consulted
- 10 per cent have a European Works Council.
The number of companies with a consultative forum has fallen from 74 per cent in 2005. This could represent a difference in the organisations surveyed or it could be a result of the problems that IRS identified from its survey.
One of the major issues was training – 39 per cent offered training for reps, 22 per cent of those surveyed offered training for managers and just seven per cent offered joint training to managers and employees. One respondent said: “Members of the forum need to become more involved in discussions rather than just listen to what the company has to say. Training would
improve this.”
Greater enthusiasm from employees was also mentioned plus enabling them to feel they could speak – one respondent found that their CEO’s presence at the meeting had an inhibiting effect.
Another finding was that a committee on its own simply isn’t enough – one respondent said: “Formal methods of communication need to be introduced that keep staff informed and up to date…a regular email bulletin would be useful as there are a number of locations throughout the country.”
One possibility mentioned with enthusiasm was an increasing use of focus groups to tackle single issues – the relative informality appears to counteract the reluctance to say anything that might disagree with a senior management viewpoint.
There was also a call for ‘real issues’ to be discussed. This could be a result of lack of training which might be leaving reps focusing on familiar, local problems or it could be that managers are reluctant to provide confidential information for discussion.
ICE’s default provisions – which only come into force if a negotiated agreement cannot be reached – require that organisations should:
- Provide information on their recent, and the probable development of, activities and economic performance
- Inform and consult on the situation, structure and probable development of employment, and any measures taken in anticipation of a change, in particular where
there is a threat to employment - Inform and consult on decisions likely to lead to substantial changes in work organisation or contractual relations.
Overlaps between TULRCA and TUPE are covered, for those organisations that have adopted ICE, by writing to the committee to say that consultation is taking place under the relevant piece of legislation.
Employers not wishing to go down the ICE route might be reassured by the lack of appetite among employees and unions – but the IRS research revealed that 23 per cent of organisations don’t think their consultation systems work well and 44 per cent agree that consultation only happens in times of crisis rather than as routine.
From a behavioural point of view there’s nothing quite like suddenly summoning a consultative committee where it’s not routine to alert everyone that something’s up!
Information and consultation is always an area that can be improved but there isn’t a one-size-fits-all model. Instead, it need to be tailored to your organisation: as a starting point think about locations, remote workers, part-time workers and culture – for example, if the majority of your workforce are Sun readers then presenting them with something written in the style of The Times is not exactly a recipe for success.
Also remember that it is not your formal information and consultation processes that will have most impact but what staff are told by their line managers and what they see them doing.
Louise Birkett is a regular contributor to the news pages of HR Zone. She is a fellow of the British Association of Communicators in Business and holds a law degree. Louise is currently studying ICE for a research degree.
