Education institutions generally operate some form of information and consultation (I&C) mechanism. Strong Union presence, particularly in the publically funded part of the sector, provides an additional negotiating body.
However, these existing I&C tools may not be sufficient to prevent employees from compelling their education employer to adopt a far more robust and onerous I&C regime which will cover information and issues beyond those which the employer is comfortable to consult on.
Whilst education employers may accept the statutory requirement to inform and consult on matters such as proposed redundancies, health and safety and transfers in and out of certain activities (a ‘TUPE’ transfer), the I&C mechanisms commonly adopted to deal with other more general matters, beyond these statutory matters, are often seen as part of employee engagement rather than a genuine method and commitment to discuss strategic and commercially sensitive matters. This will change if the statutory I&C regime is implemented.
In December 2018 the Government published the Good Work Plan setting out its proposed legislative changes to implement its preferred recommendations from the Taylor Report. One of those changes, set to come into force on 6 April 2020, will amend the existing Information and Consultation of Employee Regulations 2004 (the ICE Regulations). This is an interesting development for two reasons:
First, the ICE Regulations were introduced into the UK to implement the European Directive on information and consultation, so at a time when Britain is preparing to leave the European Union, the Government in charge of effecting our departure has sought to augment this European initiative.
Second, the ICE Regulations failed to produce a sea-change in the I&C regimes adopted by employers since their introduction in 2005. The changes to be introduced in 2020, however, could really tip the balance as they will make it far easier for employees to compel employers to introduce I&C mechanisms on their terms.
At present, employees of employers with 50+ employees who wish to trigger a formal I&C request under the ICE Regulations require at least 10% of the workforce to make the request (subject to a minimum of 15 and a maximum of 2,500 employees). From April 2020 that threshold will reduce to just 2%.
The consequences of receiving a valid I&C request are that:
- the employer must, as soon as reasonably practicable, begin to negotiate an I&C agreement with employees. This will include putting in place arrangements for the appointment/election of negotiating representatives and beginning negotiations as to the arrangements that will apply
- after an initial three month period, negotiations on the I&C arrangements may run for a further six months. Whilst this can be extended on agreement if no negotiated agreement is reached within the requisite time, the statutory standard information and consultation provisions (SICP) will automatically apply and the CAC will assume jurisdiction over all disputes relating to I&C going forward
- hefty penalties may be awarded for non-compliance with the ICE Regulations of up to £75,000.
Most employers would not choose to have the SICP and the jurisdiction of the CAC imposed on them, not least because under the SICP the employer is required to provide information to employees that is likely to be confidential and onerous. It will include information pertaining to:
- recent and probable developments in the employer’s activities and economic situation
- the structure and probable developments of employment within the employer’s organisation and any anticipatory measures envisaged affecting employees
- any decision likely to lead to substantial changes in work organisation or in contractual relations.
The best way to avoid this prospect is to take a pro-active approach and introduce a valid agreed I&C arrangement before any statutory request is made. Having a valid pre-existing I&C agreement will make it more difficult for employees to trigger a request under the ICE Regulation as they will only be able to do so where they meet a higher threshold of either 40% of the workforce making the request or 10% of the workforce (reducing to 2% in April 2020) and a majority of the workforce voting in favour in a subsequent ballot.
A valid pre-existing agreement must:
- be in writing
- cover all employees in the undertaking (although this could be done by having different agreements apply to different sections of the undertaking)
- have been approved by employees (this could be satisfied by securing the agreement of all negotiating representatives or else being able to show a majority in favour, perhaps by ballot)
- set out how the employer will provide information to employees and seek their views (but what information is imparted, how, in what frequency, and to whom is all a matter to be agreed between the employer and employees).
If you are concerned at the risk of employees triggering a statutory I&C request, the period before April 2020 provides valuable opportunity for you to agree with your employees a pre-existing agreement, on your terms. Also the additional benefits of having an effective I&C arrangement should not be overlooked as it can, of itself, be a valuable tool for employee engagement as well as providing a standing forum of employee representatives available whenever needed to fulfil other statutory consultative purposes such as on health and safety, redundancy, pensions and TUPE issues.
Finally, it should not be assumed that having an agreement with a recognised union will necessarily offer the protection of a pre-existing agreement. Many collective agreements are not in writing and/or are exceedingly vague on how the information and consultation process will operate, few cover all employees within an undertaking and it may be difficult to demonstrate that a majority of employees have approved the arrangement. As such employers rely on these agreements to thwart a statutory I&C request at their peril.
This article is from the spring 2019 issue of Education Matters, our newsletter for our clients and contacts in the education sector. To download the latest issue, please visit the newsletter section of our website. Law covered as at May 2019.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2019.