UK: An Employers Guide To Employee Representative Elections For Collective Redundancy Consultations And Other Workforce Representative Requirements (ICE; PEA; JCC; EWC; SNB; TUPE; PSC; HSCER)

Last Updated: 13 May 2008
Article by Elliot Roberts

Overview

Over the last 10 years there has been an increase in the regulatory requirements for UK employers to consult with employee representatives. This trend is still continuing with even more employers being affected as of 6th April 2008. Consequently more and more employers have to organise elections for their workforce to elect appropriate representatives. Examples of these elections and ballots include:

  • Collective Redundancy Consultations
  • Transfer of Undertakings (Protection of Employment) Regulations (TUPE)
  • Information and Consultation of Employees (ICE)/National Works Council (NWC)
  • Pre-Existing Agreement (PEA) ballot
  • Joint Consultative Committee (JCC)
  • Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations (PSC)
  • European Works Council (EWC) and Special Negotiating Body (SNB)
  • Health and Safety (Consultation with Employees) Regulations (HSCER)

Normally it is the employer's responsibility not only to ensure the election takes place but also to ensure that it is fairly and properly conducted and complies with all the relevant regulations. This is a difficult role for employers or their normal professional advisers to take on. Typically it will be beyond their remit and they will not have access to the specialist print, internet or telephone facilities needed to run a secret ballot that is also secure (and if possible swift). They may also be regarded by employees as interested parties in the ballot, and this might lead to disputes about the legitimacy of any election they manage. Fortunately all employers and their professional advisers can call upon the expert, impartial assistance of Electoral Reform Services (ERS) to conduct nominations and elections, no matter how large or small their workforce is. This article reviews the most common requirements.

Election of Employee Representatives for Collective Redundancy Consultations

If an employer is making 20 or more employees redundant in one place of work within a 90-day period, this is deemed a collective redundancy and the employer is normally under an obligation to consult with employee representatives in addition to consulting with individual employees. Furthermore it is the employers responsibility to ensure that consultation is offered to appropriate representatives of the workforce.

In some specific circumstances, trade union officials or other existing workforce representatives can represent the employees concerned. (For the official guidance on these circumstances please see the Department for Business Enterprise & Regulatory Reform web site at http://www.berr.gov.uk/employment/employment-legislation/employment-guidance ). In all other cases, new employee representatives should be elected specifically for the consultation, and the employer must:

  • Ensure that all those affected by the redundancy situation can stand in the election
  • Ensure that all those affected by the redundancy situation are entitled to vote
  • Ensure that the election is fair
  • Ensure those voting can do so in secret
  • Ensure the votes given are accurately counted.

The first redundancy dismissals can only take effect thirty days after consultations have started (or after 90 days if more than 100 redundancies are being considered). Therefore the employer frequently wants the electoral process completed as rapidly as possible. Where practical, combining e-mail distribution with internet voting or telephone voting or text (SMS) voting is usually much faster than a traditional postal ballot and can be a perfectly legitimate method of election. However it is vital that safeguards are put in place to prevent multiple voting and to protect the right of every employee to vote in secret. Further details of online voting (including an online demonstration) are available at http://www.electoralreform.co.uk/election_services/internet_voting.asp and further details of telephone and text voting are at http://www.electoralreform.co.uk/election_services/telephone_voting.asp.

Election of employee representatives for TUPE consultations.

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) is the main piece of legislation governing the transfer of an undertaking, or part of one, to another. The regulations are designed to protect the rights of employees in a transfer situation enabling them to enjoy the same terms and conditions, with continuity of employment, as before. The rules concerning when TUPE applies are complicated and employers should always consult with their lawyer. However in very general terms, TUPE applies to:

  • mergers
  • sales of a businesses by sale of assets
  • a change of licensee or franchisee
  • the gift of a business through the execution of a will
  • contracting out of services
  • changing contractors
  • where all or part of a sole trader's business or partnership is sold or otherwise transferred

To comply with TUPE, an outgoing employer must inform and consult with appropriate representatives of the affected employees about the transfer and any measures proposed. Where there is a recognised independent trade union representing employees who may be affected, the employer must inform and consult that union. Where there are employees who may be affected by a transfer of an undertaking but who are not represented by a recognised trade union, the employer must inform and consult other appropriate representatives of those employees. These may be either existing representatives (provided that their remit and method of election or appointment gives them suitable authority from the employees concerned), or new ones specially elected for the purpose. The rules governing such an election are the same as those for a collective redundancy situation. Please see above for a summary or for more details please refer to http://www.berr.gov.uk/employment/employment-legislation/employment-guidance/page16073.html). Again, employers frequently require not only a robust election result that can not later be challenged, but also a swift nomination and electoral process, if possible taking advantage of online voting and telephone voting to save time and cut down on unnecessary print and postage costs. This is not easy for either employers or their normal professional advisers to accomplish without threatening the integrity of the ballot, so employers thinking of going down this path are advised to contact Electoral Reform Services at the earliest opportunity.

Information and Consultation of Employees (ICE) Representatives

The Information and Consultation of Employees (ICE) Regulations 2004 give employees the right, subject to certain conditions, to request that their employer sets up or changes arrangements to inform and consult them about issues in the organisation for which they work.  The Regulations came into force for organisations with 150 or more employees in 2005 but were subsequently extended. After 6th April 2008 they apply to organisations with 50 or more employees. The resulting consultative bodies are sometimes called National Works Councils to distinguish them from European Works Councils (see below).

The ICE Regulations do not impose a set method for employers to inform and consult their employees. Instead, the requirements are triggered either by the employer or by a formal, written request for an information and consultation agreement from at least 10% of employees, provided this amounts to at least 15 employees. Alternatively 2,500 employees can demand that an agreement be negotiated regardless of whether this number amounts to 10% of the entire workforce.

When an ICE agreement is negotiated, the employer must arrange for the election or appointment of negotiating representatives from the workforce. All employees must be given the opportunity to be involved in the appointment process, and those employees so elected or appointed must be genuine representatives or else the whole process may be challenged. If a ballot is held, the employer must ensure it is fair and that all employees have the right to vote in it.

Once negotiating representatives have been elected, employers have a further six months to negotiate with them on the information and consultation structures to be set up unless extensions are mutually agreed. The ICE regulations are not prescriptive about how employee representatives should be selected in the negotiated structure as this

should form part of the negotiated agreement. However ACAS (Advisory, Conciliation and Arbitration Service) recommends that unless the workforce is adequately represented through Trade Unions, the employee representatives should be elected by secret ballot on a constituency basis and that the best way of ensuring an open and fair nomination and election process is to involve an independent scrutiniser - such as Electoral Reform Services. (For the full ACAS Best Practice advice on employee representation please see http://www.acas.org.uk/media/pdf/g/a/Acas4Representation_1.pdf.)

If no agreement is reached then the Standard Provisions (sometimes called Statutory Fallback Provisions) for an ICE agreement shall apply. These demand that information and consultation representatives be elected by all employees and it is the employer's responsibility to organise the necessary ballots and ensure that they are fair, if necessary by appointing an independent ballot organiser/scrutiniser such as Electoral Reform Services.

Pre-Existing Agreement (PEA)

Generally, when a valid employee request for an ICE agreement is made, the employer must negotiate an I&C agreement with representatives of the employees. However, where employers and employees already have in place a valid pre-existing agreement (PEA), employers may ballot the workforce to ascertain whether the employees would prefer the PEA to a new ICE agreement. This is a task that is best done by a simple referendum organised by an independent organisation like Electoral Reform Services.

Joint Consultative Committees (JCC)

A Joint Consultative Committee (JCC) is often used as a way of consulting employees. A JCC is made up of managers and employee representatives who come together on a regular basis to discuss issues of concern like working conditions, welfare and training.

Existing Joint Consultative Committees can be used for new ICE regulations or new representatives can be elected onto the JCC to help inform and consult employees about the economic situation, employment prospects and major changes to the business. However please note that to comply with the ICE regulations, existing JCC arrangements must cover all employees.

There is no prescribed method of selection for workforce representatives on a JCC. However ACAS advises that "employee representatives have to be genuinely representative of their constituencies. They should be directly elected by the employees they represent or should be nominated by their trade union on the basis of a members election". This is a role that Electoral Reform Services can fulfil. (For the full ACAS advice on Information and Consultation Methods and Structures please see http://www.acas.org.uk/media/pdf/j/a/Acas3I_C-methods_structures.pdf).

Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006 (the PSC Regulations).

The PSC Regulations came into force on 6 thApril 2006 and require employers to consult with prospective and active pension scheme members and their representatives before making significant changes to future pension arrangements.

The PSC Regulations apply to most UK businesses that offer occupational pension schemes or personal pension schemes where the employer makes contributions. There is a size threshold in terms of number of employees but from 8th April 2008 all companies with 50 or more employees are included. (NB: This is the same as for the ICE regulations see above and in many ways the PSC requirements mirror the ICE requirements.)

Consultation is required when an employer, trustee, manager or other person with authority to make a change, proposes a significant change to the future pension arrangements of prospective or active members of an occupational or personal pension scheme. This would include proposals to:

  • increase the normal pension age
  • close the scheme to new members
  • stop or reduce members' future benefit accrual
  • remove the employer's liability to make employer contribution
  • introduce member contributions when no such contributions were previously payable or increase them
  • cease or reduce employer contributions to money purchase schemes
  • change defined benefits schemes to money purchase schemes

The employer must consult with appropriate representatives of affected members. Sometimes appropriate employee representatives might already exist (such as officials of an independent recognised trade union or ICE representatives if their remit includes pensions). But if any affected members are not represented under existing arrangements, new representatives should be selected. An election is not mandatory but is recommended as best practice by the Government and a company may be asked to explain why it did not follow the best practice if there are subsequent disputes about the consultation offered. Again the simplest way to ensure both regulatory compliance and universal acceptance of the election result is to appoint Electoral Reform Services to mange both the nomination process and the election process.

European Works Council (EWC) or Special Negotiating Body (SNB).

The EU Directive on establishing European Works Councils was agreed in September 1994 and finally implemented into the UK in January 2000 through the Transnational Information and Consultation of Employee Regulations 1999 (TICER).

The current Directive applies to all companies located in more than one EU Member State and with at least 1,000 employees in total, of which at least 150 are located in each of two EU Member States.

A EWC agreement normally follows negotiations between management and the employees. The process is triggered either by the companys management or after a written request from at least 100 employees or their representatives in two or more Member States. The employees are represented in the negotiations by a "Special Negotiating Body" (SNB) which consists of representatives of employees from all the EEA member states in which the company has operations. The number of representatives for each member state is determined by a formula in the legislation in the State where the undertakings central management is located (or representative agent where the central management is outside the EEA). The UK Regulations prescribe one representative from each of the EEA countries in which the undertaking operates plus additional representatives where 25% or more, 50% or more and 75% or more of the European workforce is located in a member state, up to a total maximum of four. The way in which the SNB members are selected is determined by the legislation of the member state where they are employed. UK members are selected by a ballot of the UK workforce unless there exists a consultative committee whose members were elected by a ballot of all the UK employees and which performs an information and consultation function on their behalf.

The Regulations are largely concerned with the initial establishment of the SNB: the subsequent details of the EWC agreements are for the most part left for negotiation between the parties concerned. However if no agreement is reached, a EWC must be set up in accordance with the "statutory model" set out in the Schedule to the Regulations. This sets out requirements concerning the size, establishment and operation of a European Works Council.

Electoral Reform Services can manage elections on behalf of an employer for both a SNB and a EWC.

Health and safety Consultations (HSCER)

Health and Safety (Consultation with Employees) Regulations 1996 (HSCER 1996) came into force on 1 October 1996. They confer duties upon employers to consult with all employees who are not represented by a recognised trade union, on health and safety issues.

It is the duty of all employers to ensure that they have arrangements in place to meet these requirements. Employers must decide whether to consult with employees directly or via representatives. If they choose to consult via representatives these must be elected by the employees. (See section 4 of the regulations available at: http://www.opsi.gov.uk/si/si1996/Uksi_19961513_en_1.htm). It is recommended that these elections are managed by an independent body such as Electoral Reform Services.

Where to find assistance on all employee representative elections.

Electoral Reform Services (ERS) is the most used ballot manager and independent scrutineer for all the above elections and ballots, and its services are used by hundreds of UK employers every year. ERS is widely regarded as impartial and the results of any election it supervises are very unlikely to be challenged. (For instance, all three main UK political parties use ERS in their own leadership elections). ERS also has specialist in-house print, internet, telephone and text voting facilities to ensure a fast but secure turnaround of both the nomination and election process in workforce elections. Employers and their professional advisers can contact Electoral Reform Services for a quote without incurring any obligation to use ERS if the need for an election or ballot goes away. Details are available at: http://www.electoralreform.co.uk/contact/default.asp. All enquiries will be treated in the strictest confidence.

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.