Informing and Consulting Employees The New Law

, by Squire, Nicholas; Healy, Kathleen; Broadbent, Joanna

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ISBN: 9780199283644 | 0199283648
Cover: Paperback
Copyright: 1/5/2006

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This is a comprehensive and practical analysis of the Information and Consultation of Employees Regulations 2004. It provides a detailed explanation of the contents of the regulations, as well as offering expert guidance on their implications for employers in practice.

Preface

Table of Cases

Table of Legislation

xvii

Chapter 1 INTRODUCTION

(18)

A. The Background to the Information and Consultation Directive

B. The Purpose of the Information and Consultation Directive

C. Putting the Regulations in Context: Existing UK Information and Consultation Structures

D. Existing Requirements to Inform and Consult

1. Collective Redundancies

2. TUPE

3. Health and Safety

4. Pensions

E. Collective Bargaining

F. European Works Councils

G. Voluntary Arrangements

H. Supporting the Structure of the ICE Regulations: The Role of the Central Arbitration Committee

I. The Structure of this Book

Chapter 2 WHEN Do THE ICE REGULATIONS APPLY?

(14)

A. What is an Undertaking?

B. Undertakings or Establishments

C. When the ICE Regulations Apply: The Basic Principles

D. Application of These Principles to Corporate Bodies

E. Do Information and Consultation Structures Have to Operate by Reference to Undertakings?

F. Calculating Whether the Undertaking Employs Sufficient Employees to Trigger the Application of the ICE Regulations

G. Who Is an Employee?

H. Verification of Relevant Information

I. Testing Whether the ICE Regulations Apply

Chapter 3 PRE-EXISTING AGREEMENTS

(22)

A. Background

B. Why Would an Employer Consider Implementing a Pre-Existing Agreement?

1. To Secure More Flexible Employee Representation Arrangements than under the ICE Regulations

2. To Improve/Develop Communication between the Employer and the Workforce

3. To Reflect/Change the Culture within the Organization

C. The Content of A Pre-Existing Agreement

D. The Requirements for a Valid Pre-Existing Agreement

1. Multiple Agreements

E. The Elements of the Definition in Regulation 8(1)

1. Agreement Must Be in Writing

2. All Employees in the Undertaking Must Be Covered

3. The Agreement Must Set Out How Information Is to Be Given and Views Sought

4. The Agreement Must Be Approved

F. What Constitutes Approval under the ICE Regulations?

G. Will Other Types of Agreements Qualify as Pre-Existing Agreements?

1. European Works Council Agreements

2. Redundancy and TUPE Consultation Bodies

3. Collective Agreements with Trade Unions

H. Can an Existing Agreement Be Amended to Ensure that It Qualifies?

I. Key Areas for Consideration in Existing Agreements

1. Does the Agreement Cover All of the Employees in the Undertaking?

2. Has the Agreement Been Approved?

3. What Is Covered by the Pre-Existing Agreement: Is the Arrangement a 'One-Way Street'?

J. When a Pre-Existing Agreement Ceases to Be Valid

K. Impact of Corporate Transactions on Pre-Existing Agreements

L. Interaction between the ICE Regulations and Regulation 6 of TUPE

M. Conclusion

Chapter 4 REQUESTING INFORMATION AND CONSULTATION

(17)

A. Employees' Right to Information

B. The Threshold for Initiating an Employee Request to Negotiate an Agreement

C. To Whom Must the Request Be Made?

D. When Is a Valid Request Deemed to Have Been Made?

E. The Employer's Response to a Request

F. Employer's Response to a Request where Valid Pre-Existing Agreements Are in Place

G. The Balloting Process

H. Employer-Initiated Action

I. Restrictions on Employee Requests

J. The Role of the CAC

Chapter 5 NEGOTIATING AN INFORMATION AND CONSULTATION PROCEDURE

(22)

A. What Are the Goals of the Parties?

B. Getting the Negotiation Process Started

1. Appointing Negotiating Representatives

2. Notifying Employees of the Identity of the Negotiating Representatives

3. Invitation to Enter into Negotiations

C. Complaints about the Election or Appointment Process

D. The Timetable for Negotiation

1. When the Clock Does Not Start to Tick

2. How Does the Period of Suspension Operate in Practice?

3. What if the Timetable Slips?

4. Negotiating a Group-Wide Procedure

E. Period for Negotiations

1. The Duty of Co-Operation

2. Setting Out a Timetable for Negotiations

3. What about Training for Negotiating Representatives and for Managers?

F. Requirements for a Negotiated Agreement to Be Valid

1. Pre-Existing Agreements versus Negotiated Agreements

2. Balloting Requirements for Approval

G. Conclusions

Chapter 6 THE CONTENT OF A PRE-EXISTING/NEGOTIATED AGREEMENT

(20)

A. The Starting Point

B. Annex 1 of the DTI Guidance

C. Coverage

1. The Undertaking/Group of Undertakings to Be Covered

2. Which Employees in the Undertaking(s) Are Covered?

3. Will Separate Arrangements Exist in Different Parts of the Undertaking?

4. Where the Employer Recognizes Unions, How Will any Collective Agreements Be Affected?

D. Methods of Information and Consultation

1. What Type of Arrangement Will Be Established?

2. Hierarchy of Structures

3. Who Will Represent Management at Any Meeting

4. Arrangements for Choosing Employee Representatives

5. Election or Appointment?

6. Term of Office

7. Facilities and Time Off for Employee Representatives

8. Facilities

9. The Obligations on the Employee Representatives

10. The Nature of any Direct Forms of Information and Consultation with Staff

11. What the Employer Will Do in Response to Employee Representative Feedback

E. Frequency and Timing of Information and Consultation

1. How Often Will Information and Consultation Take Place?

2. When Will Information and Consultation Take Place?

F. Subject Matter

1. Types of Subject to Be Covered

2. Will Pay Be Covered by the Negotiated/Pre-Existing Agreement?

3. Should Pension Matters Be Included?

4. Choosing Subjects and Setting Meeting Agendas

5. Format and Structure of Meetings

G. Information and Consultation

1. The Type and Nature of Information to Be Provided

2. How Views/Opinions of Employees Can Be Given

3. What the Employer Will Do in Response

4. Who Will Represent Management at Any Meeting?

H. Statutory Consultation Requirements

I. Confidential or Price-Sensitive Information

J. Disputes

1. How Can Disputes Be Resolved?

2. Will a Pre-Existing Agreement Be Legally Binding?

K. Restructuring

L. Duration and Notice Provisions

M. Amendment Provisions

Chapter 7 STANDARD INFORMATION AND CONSULTATION ARRANGEMENTS

114

(33)

A. When Will the Standard Arrangements Apply?

1. Employee Request, No Pre-Existing Agreement and Negotiating Representatives not Appointed

2. Employee Request, No Pre-Existing Agreement, Negotiating Representatives Appointed

3. Employee Request, Pre-Existing Agreement

B. Election of Information and Consultation Representatives

1. Employer Fails to Elect Negotiating Representatives

2. Employer Elects Negotiating Representatives

3. Numbers of Representatives

4. Balloting Requirements

5. Role of the Ballot Supervisor

6. Role of the CAC

C. When Will There Be an Obligation to Inform and Consult?

1. Recent and Probable Development of the Undertaking's Activities and Economic Situation

2. The Situation, Structure, and Probable Development of Employment

3. Decisions Likely to Lead to Substantial Changes in Work Organization or Contractual Relations

4. Collective Redundancies and TUPE Transfers

5. Duty of Co-Operation

D. When Will the Standard Provisions Cease to Apply?

Chapter 8 ENFORCEMENT

147

(16)

A. Introduction

B. Do the Enforcement Provisions in the ICE Regulations Apply?

C. Breaches of Negotiated and Standard Arrangements

1. Complaints to the CAC

D. Penalty Notices

E. Enforcing CAC Orders

F. Limitations on CAC Orders and Exclusivity of Remedy

Chapter 9 CONFIDENTIAL INFORMATION

163

(19)

A. General Principles

B. When Can Information or Documents Be Withheld from Information and Consultation Representatives and Others?

C. Imposing Obligations of Confidentiality on Recipients of Information or Documents

D. Breaching the Obligation of Confidence

E. Exemption for Whistle-Blowers

F. Challenges to the Imposition of an Obligation of Confidentiality on Disclosed Information or Documents

G. How Do Obligations/Duties in Relation to Confidential Information Interact with Other Confidentiality Obligations to Which the Employer May Be Subject?

H. Announcements to Employees involving Price-Sensitive Information

I. Obligations of Confidentiality in Third-Party Contracts

J. Obligations in Relation to Pre-Existing Agreements

Chapter 10 PROTECTIONS FOR INFORMATION AND CONSULTATION REPRESENTATIVES AND CONTRACTING-OUT

182

(13)

A. Time Off

1. Right to Time Off

2. Right to Be Paid for Time Off

3. Disputes Relating to Time Off

B. Protection against Detriment and Unfair Dismissal

1. Right Not to Be Unfairly Dismissed

2. Right Not to Be Subjected to Detriment

3. Conciliation

C. No Contracting-Out

Chapter 11 How Do WE COMPARE?

195

(28)

A. Information and Consultation Rights in France

1. Overview of Employee Representation in France

2. Staff Delegates (Délégués du Personnel)

3. Works Councils

4. Trade Unions

5. Works Council Information/Consultation Rights

B. Information and Consultation Rights in Germany

1. Overview of Employee Representation in Germany

2. Participation of Works Councils

3. Works Councils in Practice

4. Participation Rights of the Works Council in Matters Covered by the Information and Consultation Directive

5. Information and Consultation of the Economic Committee

6. Other Participation Rights in Germany

C. Information and Consultation in the Netherlands

1. Overview of Employee Representation in the Netherlands

2. Works Councils

3. Rights and Powers of the Works Council

Appendix 1: The Information and Consultation of Employees Regulations 2004

223

(36)

Appendix 2: EU Information and Consultation (European Parliament and Council) Directive (2002/14/EC)

259

(9)

Appendix 3: The Information and Consultation of Employees Regulations 2004—DTI Guidance

268

(55)

Glossary

323

(2)

Index

325

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Informing and Consulting Employees The New Law

Summary

Author Biography

Table of Contents

Supplemental Materials

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Informing and Consulting Employees The New Law

Summary

Author Biography

Table of Contents

Supplemental Materials

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