Every organisation has its fair share of politics and for the HR department running an election campaign is an increasing possibility. Representatives will be needed in a number of situations to ensure legal compliance, not least of all the Information and Consultation of Employees Regulations 2004 (ICE), which from 6th April could apply to you!
It is well established that employers have a statutory duty to inform and consult workforce representatives where there is a TUPE transfer or in a collective redundancy situation. A collective redundancy is when the employer proposes to dismiss 20 or more employees from the same establishment within a period of 90 days. More recently, certain employers have had a legal duty to consult over changes to pensions arrangements under pension consultation regulations which came into force last April. All the time, more and more employers are informing and consulting representatives on a wide range of business issues, either through choice or a legal duty, as a consequence of the ICE Regulations, which came into force two years ago.
Initially only applying to employers with 150 or more employees, the ICE Regulations will be extended from April to include employers with 100 or more employees and next year to employers with 50 or more employees. The ICE Regulations make provision for employees to request new or amended arrangements for information and consultation and sets out standard provisions to apply if negotiations between the parties fail.
Employers seeking greater control and flexibility can pre-empt a request and introduce their own arrangements under a pre-existing agreement provided it is:
- In writing
- Covers all employees in “the undertaking”
- Specifies how the employer will provide information to, and seek the views of, the representatives
- Approved by the employees
Alternatively, if ICE applies, an employer will have to negotiate an agreement with employee representatives once a valid request is made, i.e. one which is in writing and supported by at least 10% of all employees. Employees are still able to make a valid request to challenge a pre-existing arrangement but, in these circumstances, the employer has the option of holding a ballot. If the ballot reveals that less than 40% of employees endorse the request then the pre-existing agreement can continue as before. If not, negotiations on new arrangements will need to commence.
The ICE Regulations are complex. Complaints that the employer has failed to comply can be made to the Central Arbitration Committee (CAC) and enforced by the EAT, with a penalty of up to £75,000. Just recently, in Amicus v Macmillan Publishers Ltd, the CAC found the employer to be in serious breach of its duty under ICE when it did not properly respond to a request and relied on pre-existing agreements at each of its sites. However, the CAC found only one of the agreements was in place before the date of the employee request, hence all employees were not covered, and it ordered Macmillan to proceed with arrangements to elect representatives.
Elections for employee representatives may not always be necessary depending on the type of consultation required and any arrangements already in place, such as a trade union or works council. Furthermore, the rules concerning the election process can be more prescribed in some cases and will depend on the circumstances for which information and consultation is needed. However, in general, some of the issues that you will need to consider are:
Numbers and constituencies – You will decide what representatives are needed to inform and consult sufficiently. You should take into account the volume of representation and consider the impact of any differences in the nature of employment or geographical locations, which may influence your decision. Under ICE the arrangements must satisfy the requirement for one representative for every 50 employees, subject to a minimum of two and a maximum of 25 representatives.
Forward planning and contingency arrangements – Prior to the election, you will need to determine the term of office for the representatives. The scope and duration must be sufficient to meet the current need but it is worth considering if you wish to proscribe other circumstances and a longer term of office to avoid the need for future elections. You should also decide on the arrangements to be made if no-one stands or there is tie of votes and in the event of an appointed representative leaving your employment.
Voting process – You will need to decide if you will conduct the election in-house or use an external agency such as the Electoral Reform Society. Consider the extent to which you can ensure independence and secrecy, which are a prerequisite for a fair election. If the election is conducted in-house, you will need to decide on the appropriate method for voting, e.g. postal and/or workplace ballot, and appoint an overseer to manage the process and accurately count the votes and confirm the results. Use numbering or some other form of unique identification to verify legitimate voting papers. You should also confirm how you intend to deal with employees who are absent and how late votes will be dealt with.
It is also worth remembering that employee representatives fulfilling a statutory duty have a right to paid time off to carry out their function. They are also afforded protection from unfair dismissal, or any other detriment, on the grounds of their status or activities.
So, when the need for an election arises in your organisation, we suggest you take legal advice and stick to these principles, unless you want your employer to return a vote of no confidence!