Legal

Will there be a rise in staff requests to consult?

12 Mar 2020 By Nick Hurley

Nick Hurley asks how the upcoming changes to the Information and Consultation Regulations will affect employers

The threshold required to make a valid request for an information and consultation arrangement is being reduced in April from 10 per cent to 2 per cent of employees. This was a recommendation made by the Taylor review of modern working practices in 2017. At a recent talk Matthew Taylor, chief executive of the RSA and author of the review, said this is the change he is most proud of and the one he thinks will have “a big impact [in the workplace]”. This may seem surprising given the Information and Consultation of Employees (ICE) Regulations, which came into force in 2005, have had little take-up in the workplace. As the Taylor review itself recognised, by 2011 only 14 per cent of employers had onsite joint consultative committee or works councils. 

So, what are the ICE regulations, why did the Taylor review make this recommendation and how could it affect employers?

The ICE regulations

The ICE regulations resulted from an EU directive and apply to all undertakings in the UK with 50 or more employees. They provide a framework to encourage long-term information and consultation arrangements between the employer and its workforce on issues affecting them. 

The statutory process can be initiated by the employer itself or by a written request from at least 10 per cent of employees, reducing to 2 per cent from April, and a minimum of 15 employees. The ICE regulations set out timescales and the requirements for a negotiated arrangement, and suggest what should be included in the agreement such as coverage, the methods of information and consultation, frequency, timing, subject matter, confidential information, disputes and duration. 

If there is failure to agree an arrangement within the timescales then default model procedures apply. There are also provisions about the status of pre-existing agreements and circumstances where the employer need not initiate negotiations following a request. 

Recap on the Taylor review 

The Taylor review considered that essential to good work was employees feeling they had a meaningful say. It found a greater voice in the organisational decisions that affect people’s jobs can make them feel better about their work. It can also add to a more collegiate environment between management and staff, boosting the feeling of fulfilment and productivity. 

The review heard that, for many, having no say in the way they work had a negative impact on their wellbeing. It drew on expertise from Acas and Investors in People and recommended a renewed focus on good employee engagement, especially in low-paying sectors. 

It asked the government to look at the effectiveness of the ICE regulations in encouraging voice in the workplace, and to consider lowering the bar to gaining consultation rights to 2 per cent. In addition, it recommended all workers, not just employees, should count. But although the government accepted the recommendation for reducing the threshold, it did not extend the scope to cover all types of workers. 

Potential impact on employers

In accepting the recommended threshold reduction, the government agreed that high levels of engagement improves organisational performance and productivity and leads to more fulfilling work. However, as the Taylor review recognised, a change in the legislation alone will not be enough. It also asked the government to work with organisations that have expertise in workplace relations, such as Investors in People, Acas and the trade unions, to promote further development of employee engagement and workforce relations, especially in sectors with significant levels of casual employment. 

There are many factors that affect whether there is likely to be an increase in requests from employees. First, it remains to be seen how committed the government is to promoting greater engagement with the ICE regulations, particularly as it is now a different Conservative government responsible for taking this forward and we’re in a climate primarily concerned with exiting the EU. As the ICE regulations implement an EU directive it seems less likely to be a priority. 

In addition, although some unions are supportive, there are concerns from others that the ICE arrangements may diminish the strength of the union in the workplace and so they may not actively support engagement. It also seems unlikely employees will take the initiative themselves without awareness, encouragement and organisation. 

Of course, employers can always start the process. In Germany, seen as a bastion of co-determination, the mood has reportedly been hardening against worker involvement, with the BDA (an employer’s association) recently reporting that two-thirds of firms with equal worker representation on the supervisory board see co-determination as a handicap to doing business. 

But it is difficult to predict whether this change will unlock worker voice and muscle in the workplace or whether the status quo will prevail and the ICE regulations will continue to have negligible impact. 

Nick Hurley is a partner at Charles Russell Speechlys

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