Introduction
For more than ten years the UK has had regulations on the statute book through which employees and their representatives can require employers to provide information and consult generally on important issues, like jobs and work organisation.
Implementation of the rights contained in the Information and Consultation of Employees Regulations 2004 (the ICE regulations and their Northern Ireland equivalent) is not automatic. It can normally be triggered if at least 10% of employees within the business (defined as an “undertaking”) request it.
The regulations are based on a European Directive (2002/14/EC) that provides a general framework for informing and consulting employees. The UK vote to leave the European Union will eventually mean that this and other European directives will no longer underpin UK law. However, the regulations will continue to apply unless they are specifically repealed and the trade union movement has indicated that it will campaign to defend all workers’ rights which are based on EU law.
When they were introduced the ICE regulations added a new dimension to existing channels for informing and consulting at work, which include union recognition arrangements, legally enforceable consultation on specific topics (from redundancies to health and safety), the right to information for collective bargaining purposes and various forms of voluntary consultation.
The ICE regulations introduced the option of legally enforceable employee information and consultation on a much wider range of topics. Brendan Barber, who was then the TUC general secretary, said that only “bad managers who insist on keeping their staff in the dark” had anything to fear.
However there were and still are concerns within the trade union movement that ICE could be used to undermine or sidestep collective bargaining and downgrade the role of unions. The ICE regulations themselves also have a number of shortcomings. (The TUC has made a strong case for strengthening the regulations in Democracy in the Workplace, 2014.)
Despite this, many trade unionists have taken advantage of these legally enforceable rights, as a complement to collective bargaining and as a way of strengthening the union’s position and extending its influence.
The booklet starts in Chapter 1 by tackling what may well be the main concern for trade unionists – the pluses and minuses of information and consultation as compared with other forms of employee representation. It also suggests that unions are now willing to make more use of the regulation than when they were first introduced. Where and how the regulations apply, especially the thorny issue of defining the “undertaking”, are set out in Chapter 2.
A simple summary of how the regulations might be expected to work, “all being well” is provided in Chapter 3. The issues it covers are presented in more detail in the later Chapters.
How the ICE process gets started is the focus of Chapter 4, while what to do about pre-existing agreements (which can have the effect of blocking an employee ICE request) is covered in Chapter 5. Negotiations should be central to the ICE process, as Chapter 6 shows, and what they deliver – or what happens if negotiations fail to deliver an agreement – is looked at in Chapters 7 and 8.
Confidentiality is a key issue and is reviewed in Chapter 9 together with the protections available against detriment or unfair dismissal for employees and reps. Enforceability is one of the main potential benefits of the regulations and is the focus of Chapter 10. Chapter 11 gives further examples of how information and consultation rights work in practice.
Chapter 12 highlights other legally enforceable information and consultation rights. Although these are distinct from the ICE regulations – the main focus of this booklet – they can and do interact, in ways that may be either helpful or confusing. Chapter 13 lists sources of further information.
Throughout the booklet, examples are given from the cases heard by the enforcement bodies, in particular the Central Arbitration Committee (CAC).