The Information and Consultation of Employees Regulations 2004

• (c) if he works at an advice centre (whether as an employee or as a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre.

• (6) But a person is not a relevant independent adviser for the purposes of paragraph (4)(c)—

• (a) if he is, is employed by or is acting in the matter for the employer or an associated employer;

• (b) in the case of a person within paragraph (5)(b) or (c), if the trade union or advice centre is the employer or an associated employer; or

• (c) in the case of a person within (5)(c), if the employee makes a payment for the advice received from him.

• (7) In paragraph (5)(a), “qualified lawyer” means—

• (a) as respects England and Wales, a person who, for the purposes of the Legal Services Act 2007), is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act); and

• (b) as respects Scotland, an advocate (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate.

• (8) A person shall be treated as being a qualified lawyer within the meaning of paragraph (7)(a) if he is a Fellow of the Institute of Legal Executives practising in a solicitor’s practice (including a body recognised under section 9 of the Administration of Justice Act 1985).

• (9) For the purposes of paragraph (6) any two employers shall be treated as associated if—

• (a) one is a company of which the other (directly or indirectly) has control; or

• (b) both are companies of which a third person (directly or indirectly) has control;

and “associated employer” shall be construed accordingly.

Amendments to the Employment Appeal Tribunal Rules 1993

41

The Employment Appeal Tribunal Rules 1993 shall be amended as follows—

• (a) In rule 2(1), after the definition of “the 2004 Regulations” insert—

“the Information and Consultation Regulations” means the Information and Consultation of Employees Regulations 2004;

• (b) In rules 3(1)(d), 3(3)(d), 4(1)(e), 5(c) and 7(1)(e), after “the 2004 Regulations” insert—

or regulation 35(6) of the Information and Consultation Regulations

• (c) In rule 16AA—

• (i) after “the 2004 Regulations” insert— “ or regulation 22(6) of the Information and Consultation Regulations; and ”

• (ii) for “those regulations” substitute “ the 2004 Regulations or regulation 22(4) of the Information and Consultation Regulations ”;

• (d) In rules 26 and 31(1)(c)—

• (i) omit “or” before “regulation 33”; and

• (ii) after “the 2004 Regulations” insert “ or regulation 22 of the Information and Consultation Regulations ”;

• (e) In the Schedule, in the heading to Form 1A—

• (i) omit “or” before “regulation 47(6)”; and

• (ii) insert at the end “ or regulation 35(6) of the Information and Consultation of Employees Regulations 2004 ”; and

• (f) In the Schedule, in Form 4B—

• (i) in the heading, after “Regulations 2004” insert “ or regulation 22 of the Information and Consultation of Employees Regulations 2004 ”; and

• (ii) in paragraph 5, after “Regulations 2004” insert “ or regulation 22 of the Information and Consultation of Employees Regulations 2004 (delete which does not apply). ”.

Crown employment

42

• (1) These Regulations have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees.

• (2) In these Regulations “Crown employment” means employment in an undertaking to which these Regulations apply and which is under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision.

• (3) For the purposes of the application of these Regulations in relation to Crown employment in accordance with paragraph (1)—

• (a) references to an employee shall be construed as references to a person in Crown employment; and

• (b) references to a contract of employment shall be construed as references to the terms of employment of a person in Crown employment.

Exception for merchant navy

43

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 1 — APPLICATION OF REGULATIONS

Number of employees	Date Regulations apply
At least 150	6 April 2005
At least 100	6 April 2007
At least 50	6 April 2008

SCHEDULE 2 — REQUIREMENTS FOR BALLOTS HELD UNDER REGULATION 19

Ballot arrangements

1

Ballots held under regulation 19 must comply with the requirements specified in paragraph 2.

2

The requirements referred to in paragraph 1 are that—

• (a) the ballot must comprise a single ballot but may instead, if the employer so decides, comprise separate ballots of employees in such constituencies as the employer may decide where the employer considers that if separate ballots were to be held for those constituencies, the information and consultation representatives to be elected would better reflect the interests of the employees as a whole than if a single ballot were held;

• (b) if, at any point, it becomes clear that the number of people standing as candidates in the ballot is equal to or fewer than the relevant number of information and consultation representatives (as defined in regulation 19(3)), the obligation on the employer to hold the ballot in regulation 19 will cease and the candidates referred to above will become the information and consultation representatives;

• (c) all employees of the undertaking on the day on which the votes may be cast in the ballot, or if the votes may be cast on more than one day, on the first day of those days, must be given an entitlement to vote in the ballot;

• (d) any employee who is an employee of the undertaking at the latest time at which a person may become a candidate in the ballot is entitled to stand in the ballot as a candidate as an information and consultation representative;

• (e) the employer must, in accordance with paragraph 6, appoint an independent ballot supervisor to supervise the conduct of the ballot;

• (f) after the employer has formulated proposals as to the arrangements for the ballot and before he has published the final arrangements under sub-paragraph (g) he must, so far as reasonably practicable, consult with employees' representatives or, if no such representatives exist, the employees, on the proposed arrangements for the ballot; and

• (g) the employer must publish the final arrangements for the ballot in such manner as to bring them to the attention of, so far as reasonably practicable, his employees and, where they exist, the employees' representatives.

3

Any employee or an employees' representative who believes that the arrangements for the ballot are defective may, within a period of 21 days beginning on the date on which the employer published the final arrangements under paragraph 2(g), present a complaint to the CAC.

4

Where the CAC finds the complaint well-founded it shall make a declaration to that effect and may make an order requiring the employer to modify the arrangements he has made for the ballot or to satisfy the requirements in sub-paragraphs (a) to (f) of paragraph 2.

5

An order under paragraph 4 shall specify the modifications to the arrangements which the employer is required to make and the requirements he must satisfy.

6

A person is an independent ballot supervisor for the purposes of paragraph 2(e) if the employer reasonably believes that he will carry out any functions conferred on him in relation to the ballot competently and has no reasonable grounds for believing that his independence might reasonably be called into question.

7

For the purposes of paragraph 3 the arrangements for the ballot are defective if any of the requirements specified in sub-paragraphs (a) to (f) of paragraph 2 is not satisfied.

Conduct of the ballot

8

The employer must—

• (a) ensure that a ballot supervisor appointed under paragraph 2(e) carries out his functions under this Schedule and that there is no interference with his carrying out of those functions; and

• (b) comply with all reasonable requests made by a ballot supervisor for the purposes of or in connection with the carrying out of those functions.

9

A ballot supervisor’s appointment shall require that he—

• (a) supervises the conduct of the ballot he is being appointed to supervise, in accordance with the arrangements for the ballot published by the employer under paragraph 2(g) or, where appropriate, in accordance with the arrangements as required to be modified by an order made under paragraph 4;

• (b) does not conduct the ballot before the employer has satisfied the requirement specified in paragraph 2(g) and—

• (i) where no complaint has been presented under paragraph 3, before the expiry of 21 days beginning with the date on which the employer published his arrangements under paragraph 2(g); or

• (ii) where a complaint has been presented under paragraph 3, before the complaint has been determined and, where appropriate, the arrangements have been modified as required by an order made as a result of the complaint;

• (c) conducts the ballot so as to secure that—

• (i) so far as reasonably practicable, those entitled to vote are given the opportunity to do so;

• (ii) so far as reasonably practicable, those entitled to stand as candidates are given the opportunity to stand;

• (iii) so far as reasonably practicable, those voting are able to do so in secret; and

• (iv) the votes given in the ballot are fairly and accurately counted.

10

As soon as reasonably practicable after the date of the ballot, the ballot supervisor must publish the results of the ballot in such manner as to make them available to the employer and, so far as reasonably practicable, the employees entitled to vote in the ballot and the persons who stood as candidates in the ballot.

11

A ballot supervisor shall publish a report (“an ineffective ballot report”) where he considers (whether or not on the basis of representations made to him by another person) that—

• (a) any of the requirements referred to in paragraph 2 was not satisfied with the result that the outcome of the ballot would have been different; or

• (b) there was interference with the carrying out of his functions or a failure by the employer to comply with all reasonable requests made by him with the result that he was unable to form a proper judgement as to whether each of the requirements referred to in paragraph 2 was satisfied in the ballot.

12

Where a ballot supervisor publishes an ineffective ballot report the report must be published within a period of one month commencing on the date on which the ballot supervisor publishes the results of the ballot under paragraph 10.

13

A ballot supervisor must publish an ineffective ballot report in such manner as to make it available to the employer and, so far as reasonably practicable, the employees entitled to vote in the ballot and the persons who stood as candidates in the ballot.

14

Where a ballot supervisor publishes an ineffective ballot report, the outcome of the ballot shall be of no effect and—

• (a) if there has been a single ballot or an ineffective ballot report has been published in respect of every separate ballot, the outcome of the ballot or ballots shall be of no effect and the employer shall again be under the obligation in regulation 19;

• (b) if there have been separate ballots and sub-paragraph (a) does not apply—

• (i) the employer shall arrange for the separate ballot or ballots in respect of which an ineffective ballot report has been issued to be reheld in accordance with regulation 19, and

• (ii) no such ballot shall have effect until it has been reheld and no ineffective ballot report has been published in respect of it.

15

All costs relating to the holding of the ballot, including payments made to a ballot supervisor for supervising the conduct of the ballot, shall be borne by the employer (whether or not an ineffective ballot report has been made).

Signed

Gerry Sutcliffe, — Parliamentary Under Secretary of State for Employment Relations, Postal Services and Consumers, — Department of Trade and Industry — 2004-12-21

Explanatory note

(This note is not part of the Regulations)

1Regulation 3 sets out the undertakings to which the Regulations apply.

2Regulation 4 provides a method of calculating the number of employees in an undertaking, regulation 5 provides the employees of an undertaking with an entitlement to information to make the calculation in regulation 4 and regulation 6 allows a complaint to be made to the Central Arbitration Committee (“the CAC”) that the employer has failed to provide such information or has supplied false or incomplete information.

3Part III deals with negotiated agreements and, in particular, regulation 7 provides that an employer must start negotiations on receipt of a valid employee request. However, the employer does not have to do so if there exists a pre-existing agreement and the request was made by fewer than 40% of employees. In the latter case the employer can choose to seek employee endorsement for the request and, unless at least 40% of employees in the undertaking and the majority of employees who vote do endorse the request, the employer does not have to start negotiations (regulation 8).

4Regulation 9 allows for combined ballots to be held where there are pre-existing agreements covering groups of undertakings.

5Regulation 10 covers complaints to the CAC about ballots held under regulation 8 or 9.

6Negotiations can also be commenced by an employer notification of his intention to start negotiations (regulation 11).

7Regulation 12 contains certain restrictions on when an employee request or an employer notification can be made.

8Regulation 13 allows applications to the CAC that an employee request or an employer notification is invalid.

9Regulation 14 sets out what steps have to be taken to initiate negotiations, including the appointment or election of negotiating representatives and regulation 15 allows a complaint to the CAC in relation to the appointment or election of such representatives.

10Regulation 16 sets out what a negotiated agreement must contain and how it must be approved and regulation 17 provides for a complaint to the CAC about such approval.

11Part IV contains provisions relating to the standard information and consultation provisions. Regulation 18 sets out when they apply, regulation 19 obliges the employer to hold a ballot for the appointment of information and consultation representatives to act under the standard provisions and regulation 20 sets out the employer’s obligations under the standard provisions.

12Regulation 21 places the parties under a duty of cooperation.

13Part VI deals with compliance and enforcement. Regulation 22 provides for complaints to the CAC about the operation of a negotiated agreement or the standard information and consultation provisions and for an application to be made to the Employment Appeal Tribunal for a penalty notice where the CAC finds a failure to comply with the negotiated agreement or the standard provisions by the employer. Regulation 23 deals with penalties under a penalty notice.

14Regulation 24 provides that the only remedies available are the ones under Parts I to VI of the Regulations and not otherwise.

15Part VII deals with confidential information and regulation 25 imposes a statutory duty not to disclose confidential information on anyone to whom such information is given and provides for an application to the CAC to challenge the necessity of information or a document being treated as confidential. Regulation 26 provides that an employer does not have to disclose certain information.

16Part VIII provides protections to employees taking part in negotiations, information and consultation procedures or elections including protection against unfair dismissal (regulations 30 and 31) and detriment (regulations 32 and 33). Regulation 34 allows ACAS to conciliate in such disputes.

17Regulations 39 and 40 place restrictions on contracting out of the rights provided by these Regulations.

18Regulation 42 applies the rights of employees to Crown employees (although the Regulations will only apply if they are employed an undertaking within the meaning of the Directive) and regulation 43 provides an exception for the merchant navy. A full Regulatory Impact Assessment of the effect that this instrument will have on the costs of business has been prepared and placed in the library of each House. This document can be obtained from the Department of Trade and Industry, Employee Involvement Team, Employment Relations Directorate, 1 Victoria Street, London, SW1H OET. It can also be downloaded from http://www.dti.gov.uk/access/ria/index.htm.

Footnotes

Number of employees	Date Regulations apply
At least 150	6 April 2005
At least 100	6 April 2007
At least 50	6 April 2008

Ballot arrangements

Conduct of the ballot

Editorial notes

Negotiated agreements and listed changes to pension schemes

17A

• (1) A requirement in any negotiated agreement or any part of such an agreement made before 6th April 2006 to inform and consult employees or their representatives about a listed change shall cease to apply once—

• (a) the employer is under a duty under any of regulations 7(3) and 11 to 13 of the Pension Schemes Regulations; and

• (b) he has notified the information and consultation representatives or, where he must consult employees directly, the employees in writing that he will be complying with his duty under the provisions of the Pension Schemes Regulations referred to in sub-paragraph (a), instead of his obligations under the negotiated agreement, provided that the notification is given on each occasion on which the employer has become or is about to become subject to the duty.

• (2) For the purposes of this regulation “listed change” has the meaning given by regulation 6(2) of the Pension Schemes Regulations.

Agency Workers

3A

• (1) Paragraphs (2) and (3) apply to an agency worker whose contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) is not a contract of employment.

• (2) For the purposes of regulations 3, 4 and Schedule 1, any agency worker who has a contract with a temporary work agency shall be treated as being employed by that temporary work agency for the duration of that agency worker’s assignment with the employer.

• (3) In these Regulations “assignment” has the same meaning as in regulation 2 and “temporary work agency” has the same meaning as in regulation 4, of the Agency Workers Regulations 2010.

Pre-existing agreements: agency workers

8A

Where information about the employment situation is to be provided under a pre-existing agreement by an employer, such information must include suitable information relating to the use of agency workers (if any) in that undertaking.

Pre-existing agreements covering groups of undertakings

Complaint about ballot for endorsement of employee request

Employer notification of decision to initiate negotiations

Restrictions on employee request and employer notification

Dispute about employee request, employer notification or whether obligation in regulation 7(1) applies

Negotiations to reach an agreement

Complaints about election or appointment of negotiating representatives

Negotiated agreements

Complaints about ballot for employee approval of negotiated agreement

Negotiated agreements and listed changes to pension schemes

Extension of time limit to facilitate conciliation before institution of proceedings

29A

• (1) In this regulation—

• (a) Day A is the day on which the worker concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

• (b) Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.

• (2) In working out when the time limit set by regulation 29(2)(a) expires the period beginning with the day after Day A and ending with Day B is not to be counted.

• (3) If the time limit set by regulation 29(2)(a) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

• (4) The power conferred on the employment tribunal by regulation 29(2)(b) to extend the time limit set by paragraph (2)(a) of that regulation is exercisable in relation to that time limit as extended by this regulation.

Unfair dismissal

Subsidiary provisions relating to unfair dismissal

Detriment

Detriment: enforcement and subsidiary provisions

Conciliation