Many employers are familiar with their obligation to consult with their staff in a TUPE or redundancy situation, but there are other situations in which obligations to inform and consult may arise with which employers may be less familiar.
This jargon buster article briefly examines all the circumstances in which employers have legal obligations to inform and consult with their employees.
1. Transfers under TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006)
Where there is a relevant transfer of an undertaking under TUPE the buyer and seller must inform and consult representatives of any of their own employees who will be affected by the transfer, or measures taking in connection with it. The obligation arises whatever the number of affected employees, but since July 2014 employers with fewer than 10 employees have been able to inform and consult affected employees directly.
2. Collective redundancies under TULRCA (Trade Union and Labour Relations (Consolidation) Act 1992)
Where an employer proposes to dismiss 20 or more employees at one establishment by reason of redundancy within a 90 day period the employer must inform and consult with affected employees, or their representatives.
Redundancy in this context is defined as a dismissal “not connected with the individual worker concerned”. This definition is wide enough to include:-
- Redundancy situations as defined by section 139 of the Employment Rights Act 1996 (ERA 1996).
- Reorganisations that fall outside a strict redundancy situation as defined by ERA 1996, but which result in dismissals.
- Changes to employees’ terms of employment where the employer proposes to bring these about by dismissing the employees and offering reengagement on new contracts.
Therefore an employer may have dual obligations arising under TUPE and TULRCA if either the buyer or seller proposes to dismiss 20 or more employees in a TUPE situation.
3. Information and Consultation Agreements under ICE Regulations (The Information and Consultation of Employees Regulations 2004)
The ICE Regulations apply to undertakings whose principle place of business is in Great Britain and who have at least 50 employees in the UK. These regulations set out a regime whereby UK employers may, and in some cases must, put in place information and consultation agreements governing how they will inform and consult their employees about economic and employment related matters.
Negotiations for an ICE Agreement can be initiated by the employer, or by a written request from at least 10% of the employees.
4. Health and Safety Issues
In Great Britain, employers with Trade Union appointed Health and Safety Representatives must consult them with a view to making and maintaining arrangements for promoting, developing and checking the effectiveness of measures to ensure the health and safety of their employees as far as is reasonably practicable in accordance with the Health and Safety at Work Act 1974.
Additional information and consultation regulations are set out in the following regulations:-
- The Safety Representatives and Safety Committees Regulations 1977 which apply where the employer recognises a Trade Union and Health and Safety Representatives are appointed by the Union. The employer must establish a safety committee if two or more safety representatives request it.
- The Health and Safety (Consultation with Employees) Regulations 1996. These apply where there is no recognised Union. Representatives are elected by the workforce and if there are no representatives, the employer has a duty to consult with the entire workforce.
- The Police (Health and Safety) Regulations 1999. These extend the provisions of the Safety Representatives Regulations so that they apply to Police Officers employed by the Serious Organised Crime Agency.
- The Offshore Safety Act 1992 extends the provision of the Health and Safety at Work Act so that it applies to cover workers on offshore installations.
- The Management of Health and Safety at Work Regulations 1999 requires certain information to be given to all employees.
5. Changes to Pensions
The Occupational and Personal Pensions Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 require employers to consult with their employees on changes to occupational or personal pension schemes where there are direct payment arrangements in place that enable an employer to make contributions for its employees. Consultation must take place before making certain changes.
6. Takeovers
Where there is a public offer to purchase all of the shares of a listed company the city code on takeovers and mergers applies to regulate matters. The code places a greater emphasis on the provision of information and documents about the offer to the employee representatives, or if there are none, to the employees themselves in both the bidder and the target.
7. Training
TULRCA provides that where a Trade Union is recognised as entitled to conduct collective bargaining on behalf of a bargaining unit and the method of collective bargaining is specified by the Central Arbitration Committee, the employer must consult union representatives periodically on its policy on training for workers within the bargaining unit and report about training provided for those workers since the previous meeting.
For more specific or detailed information on any of the situations referred to in this article please contact Julie Dalzell or another member of the Jacksons Employment Team
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