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I&C ‘how-to-comply’ guidance from Dr Stephen Hardy

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Dr Stephen Hardy, Senior Lecturer in Law at the University of Manchester unravels the obligations behind the Information and Consultation Regulations and sets out his ‘steps’ for HR compliance.


The Information and Consultation of Employees Regulations 2004 (“ICE” Regulations) came into force on 6 April 2005.

These Regulations implement the EU Information and Consultation Directive (the so-called ‘national Works Council’ law), seeking to require employers to set up information and consultation structures for their businesses.

However, the UK Government managed to gain a transitional implementation, as follows:

  • employers with at least 150 employees on 6 April 2005;

  • a threshold of 100 by 6 April 2007; and,

  • a threshold of 50 from 6 April 2008

The Regulations
The Regulations apply to businesses that meet the above threshold requirements in terms of employees who work for less than 75 hours a week in the preceding 12 months.

Subject to having the relevant number of employees, the Regulations apply to any undertaking, public or private, including public sector bodies. Although, the Regulations do not apply automatically.

A valid request must be made in order to make the Regulations operative. Such a request must be made in writing, by at least 10% of the employed workforce.

Requests can either be sent to the head office or registered office of the employer, or submitted to the Central Arbitration Committee (CAC). Under the legislation, following receipt of a valid request, a ballot is held requiring at least 40% of all the employees, to vote in favour. If the result of the ballot is to reject the proposal for fresh arrangements, a valid request cannot normally be made again within the next three years.

Alternatively, voluntary arrangements can be made. However, any disputes about whether there has been a valid request for negotiations to begin can be referred to the CAC for determination.

The Regulations fail to prescribe procedures and methods for the establishment of ‘ICE’ arrangements. Yet, once the employee representatives have been elected, there is a period of six months for negotiations to be undertaken to reach an ‘ICE’ agreement (i.e. the remit, composition of the works council).

These ‘ICE’ agreements must be in writing, and approved by all the negotiating representatives. The agreement must set out the circumstances in which the employer is required to inform and consult employees or their representatives.

Where agreement cannot be reached, the ‘standard’ information and consultation provisions (SICP) provisions will automatically apply. The matters on which information and consultation are required under the standard procedure are:

  • The recent and probable development of the business’ activities and economic situation;
  • The situation, structure and probable development of employment within the business;
  • Decisions likely to lead to substantial changes in work organisation or in contractual relations.

Any disputes about the operation of the information and consultation agreement, whether negotiated or applying the standard model, have to be presented to the CAC. If the employer does not comply with the CAC’s orders, a penalty up to a maximum of £75,000 can be awarded.

The HR ‘Know How’
As a consequence of this EU regulation on national works councils, HR needs to prepare. Below are some steps HR should take in readiness of this new law:

  • Need to negotiate new arrangements, former or pre-existing ‘negotiated’ agreements DO NOT count. They need to be re-approved under the new process and in writing;

  • Audit existing information/consultation (collective bargaining) methods. For instance, employee forums, may NOT suffice – they need to be elected representatives;

  • Avoid SICP – easy to initiate (only need 10% of the employed workforce);

  • Plan and develop your ‘ICE’ strategy. Need to set out scope and competence of ‘ICE’ arrangements needed, compatible with your HR/Business plans; and,

  • Induct/train your ‘ICE’ representatives.

The Regulations, like the DTI’s guidance, is lengthy and complex and as ever, the devil is in the detail! So, HR needs to plan ahead.

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Annie Hayes

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