How do we start negotiations on employee information and consultation rights?

The Regulations make a clear distinction between where there are pre-existing information and consultation agreements and where there are not.

Pre-existing agreements may have been agreed between an employer and a union which is already recognised to represent staff, or where there is a Works Council or other type of staff forum already in place.

It is important to note that an employer cannot impose a pre-existing agreement, it must have been agreed between the employer and a union, worker representatives or the workforce.

Where there aren't any pre-existing information and consultation agreements:

an employer can start negotiations on information and consultation themselves, but in general they do not have to do this if they do not receive a valid request from the workforce.

A valid request can be either a single written request from at least 10% of the employees, or a number of separate requests, which together represent at least 10%. This is subject to a minimum number of 15 employee requests and a maximum of 2,500. In calculating the 10% threshold, part-time employees are counted as full-time employees.

Where a valid request is made, the employer will be obliged to enter into negotiations within one month with employee representatives elected or appointed by the workforce over an agreement on information and consultation arrangements within the undertaking.

Where there are pre-existing information and consultation agreements:

it is harder to initiate new negotiations on information and consultation under the Regulations. The following special arrangements apply:

• The request to introduce new information and consultation arrangements must still be made by at least 10% of employees in the undertaking, though if it is made by more than 40% of employees, the employer has no option but to start negotiations.
• If the employee request for negotiations has been made by fewer than 40% of employees (though still more than 10%), the employer may, instead of opening negotiations, hold a secret ballot of the whole workforce to ascertain whether they support the request for new negotiations. If 40% or more of the workforce vote in the secret ballot and the majority of those who vote endorse the request, then the employer must enter into negotiations on a new agreement.

Where there is not the required level of employee support for the request, or a ballot fails to secure a majority, then the employer does not need to enter new negotiations, and may just continue with the existing arrangements.