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Wednesday, 3 October 2023

Types of information and consultation arrangements

If you have the right to be informed and consulted about important workplace issues, you may have an information and consultation agreement in place with your employer. It could cover the performance of the business, expected levels of employment in the future or changes in business direction.

What are the types of agreement?

There are three types of information and consultation (I&C) agreement:

  • pre-existing agreements - if your employer already has arrangements in place
  • negotiated agreements - if you and your employer have reached an agreement on the way that information and consultation will take place
  • standard (fall-back) provisions – where a pre-existing agreement is not in place and a negotiated agreement cannot be reached

The standard (fall-back) provisions are set out in the Information and Consultation of Employees Regulations.

Pre-existing agreements

Your workplace may already have pre-existing I&C arrangements that you are happy with. In this case, there's no need to make a change.

To meet the obligations set out in the Information and Consultation of Employee Regulations, any pre-existing arrangements must:

  • be in writing
  • cover all the employees of the company
  • set out how the employer will give information and seek views on it
  • be agreed by the employees

To show that the agreement has been agreed by the employees your employer could either:

  • ask for it to be approved by representatives who represent a majority of the employees
  • organise a ballot of all the employees
  • seek written approval from employees

If you feel that the existing arrangements do not meet your employer’s obligations you can ask the Central Arbitration Committee (CAC) to make a decision.

Changing pre-existing arrangements

If the employees at your workplace are not happy with the existing arrangements, you can ask for new arrangements to be introduced. If 40 per cent of employees ask (in writing) for new arrangements, they must be brought in.

If 10 per cent ask, your employer may hold a staff ballot. If less than 40 per cent of employees, or a minority of those voting, vote in favour of the new arrangements, it's likely the existing arrangements will stay in place.

Negotiated agreements

Your employer has to negotiate with your representatives over the way that I&C will operate, if you and your colleagues have:

  • requested a new agreement under the Information and Consultation of Employees Regulations
  • asked for a pre-existing agreement to be changed

If, after the negotiations have been concluded, your representatives and your employer can agree on a method for information and consultation they should draw up an I&C agreement. This agreement must:

  • cover all the employees
  • set out the circumstances in which the employer must inform and consult the employees
  • be in writing and be dated
  • be approved either by the negotiating representatives or by a ballot of the employees
  • be signed by the employer
  • either provide for the appointment or election of I&C representatives or provide for I&C directly with the employees.

A negotiated agreement can allow I&C to take place:

  • through employee representatives
  • directly with the employees
  • through a combination of these approaches

If the negotiating representatives cannot reach an agreement with your employer then the standard (fall-back) provisions will apply.

Standard provisions

The standard provisions set out in the Information and Consultation of Employee Regulations act as a fall-back where:

  • an employer does not start I&C negotiations on time
  • agreement cannot be reached on I&C arrangements

They give much less flexibility on what can be discussed during negotiations and how an agreement can be reached.

These standard provisions give you the right to be:

  • informed about the organisation's recent and likely future economic situation
  • informed and consulted on the current and future employment situation and any threats to jobs
  • informed and consulted with a view to reaching agreement on decisions likely to lead to changes to the organisation and employees' contracts (for example reorganisations, changes to working practices and changes in pay)

If you have a standard provision I&C arrangement you can, at any time, ask for a new, negotiated I&C agreement.

Informing and consulting under the standard provisions

Under the standard provisions any informing or consulting by your employer must take place through employee representatives. If you do not have an employee representative, your employer must allow employees to elect or appoint one. This should happen within six months of either:

  • a valid employee request if negotiations did not start within the three month window
  • the end of negotiations where agreement could not be reached on I&C arrangements

Employees are entitled to be represented by a specified number of representatives. Arrangements must be made to allow for one representative for every 50 employees, subject to a minimum of two representatives and a maximum of 25. So if you have 210 employees in your organisation you would be entitled to have up to five employee representatives (the number of employees is always rounded up to the nearest 50).

Protection for employees and employee representatives

You or your representatives could complain to the Central Arbitration Committee if your employer:

  • doesn't consult their employees properly under the Information and Consultation of Employee Regulations
  • fails to set-up an arrangement under the standard provisions set out in the regulations

If the CAC upholds (supports) the complaint your representatives (or you) can apply to the Employment Appeals Tribunal to ask them to impose a financial penalty of up to £75,000 on your employer.

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