UK: Information And Consultation Regulations - First Reported Decision

Last Updated: 2 January 2006
Article by Christopher Booth

Last year we advised you in a series of factsheets of the meaning and potential impact of the Information and Consultation Regulations (the Regulations). Recently, the Central Arbitration Committee (CAC) has delivered its first reported judgement on the Regulations (in the case of Stewart and The Moray Council), a decision which will be of great interest to those employers hoping to rely on pre-existing agreements to block an employee request to negotiate an information and consultation agreement (an I&C Agreement). This case makes clear that such agreements will have to contain comprehensive details of information and consultation processes in order to be effective under the Regulations.

The Importance of a Pre-Existing Agreement

The Regulations provide that if 10% of the employees in the undertaking (subject to a minimum of 15 and maximum of 2,500) make a request to negotiate an I&C Agreement then the employer must commence negotiations. The only exception to this is if the employer already has in existence a 'pre-existing agreement' (PEA).

However, the circumstances in which the employer can rely on the PEA are limited:

  • If 40% or more of the workforce make a request to negotiate, then the employer is obliged to enter directly into negotiations for a new I&C Agreement;
  • If more than 10% but less than 40% of the workforce make a request to negotiate, the employer may hold a ballot of all the workforce to establish whether they endorse the request to negotiate, or alternatively enter directly into negotiations.

Moray Council's Decision to Ballot

In the case of Stewart and The Moray Council, Mr Stewart had lodged a petition with the Council in which between 10% and 40% of the Council's employees requested the Council to negotiate an I&C Agreement. The Council's view was that there were PEAs in place and therefore it decided to hold a ballot rather than immediately entering into negotiations.

What constitutes a pre-existing agreement?

The CAC had to decide whether Moray Council's collective agreements together constituted a PEA for the purposes of the Regulations, and accordingly whether the Council was entitled to hold a ballot rather than entering directly into negotiations.

The Regulations provide that for a PEA to exist, there needs to be one or more agreement which, at the time of the employee request:

  • are in writing; the CAC held that this criterion was fulfilled in this case;
  • cover all the employees in the undertaking; Mr Stewart had argued that the agreements were with trade unions and did not cover employees who were not members of those unions; the CAC disagreed and held that the agreements did not differentiate between union members and non-members and covered all staff;
  • have been approved by the employees; the CAC agreed with the Council that the trade union representatives' endorsement of the agreements constituted approval by all the employees, since the trade union representatives represented all employees (no matter whether individual employees were members of that union or not) and additionally, a majority of the workforce belonged to the recognised unions;
  • set out how information will be given and views will be sought; it was on this last point that the Council failed; a provision in one of the agreements only providing for a ‘forum for discussion and/or consultation on a range of matters not subject to national bargaining’ was not found to be a sufficiently detailed description of the way the Council should inform and consult its staff.

Accordingly, the CAC found that the Council was not entitled to hold a ballot, and ordered the Council to initiate negotiations for an I&C Agreement.


This decision reaffirms our previous advice that employers hoping to rely on PEAs in this context should carefully review such agreements and make any amendments necessary to bring them within the definition under the Regulations. In particular:

  • check whether the whole workforce is covered; there may be more than one and/or different types of agreement for different parts of the business, as long as they cover all the employees; if this is not the case, consider extending existing agreements or negotiating separate agreements to cover currently excluded classes of employees; if agreements are entered into with trade unions only, make sure that, nevertheless, the scope covers all employees, including non-union members;
  • consider whether the employees have approved the relevant agreement(s); the legislation does not provide any detail on how employee approval could be demonstrated; however, the DTI guidance on the Regulations suggests that this could mean:
  • a simple majority amongst those voting in a ballot;
  • a majority of the workforce expressing support through signatures;
  • the agreement of representatives of employees who represent a majority of the workforce; in the Stewart case it was held that the trade union representatives represented all employees, and the CAC also took into account that a majority of the workforce belonged to the recognised unions; the CAC did not have to consider whether it would suffice for an employer to obtain the agreement of representatives representing a majority, and so this area remains untested;
  • bear in mind, also, that the mere fact of the collective agreement being a term of the employment contract was considered, by itself, not to be sufficient evidence of ‘approval’ by the employees;
  • check the content of the agreement, in particular any provisions relating to information and consultation; a vague agreement to consult, as in the Stewart case, will not be sufficient; whilst there is no clear guidance in the Stewart decision as to what is sufficient, the following details are likely to assist:
  • election of employees - voting arrangements, who organises, when held;
  • representatives - their roles, numbers and responsibilities;
  • terms of reference - what information will be covered (in as precise terms as possible); whether different information will be provided to different parts of the business or locally/nationally;
  • meetings - time, place and frequency; notice of meetings; provision of information before meetings; management of meetings; how meetings will be run;
  • feedback mechanisms - process for feeding back information to employees.

If you are considering creating an information and consultation process, or have done so recently, or have concluded already that you have a PEA, it might be worthwhile reviewing your thoughts or conclusions in the light of this case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions