Decision

Case Number: IC/38/(2011)

6 June 2011

CENTRAL ARBITRATION COMMITTEE

THE INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 2004

DECISION ON A COMPLAINT UNDER REGULATION 19(4)

Mr Neil Burgar

and

Wincanton Container Logistics

INTRODUCTION

1. Mr Neil Burgar, an employee of Wincanton Container Logistics (the Employer), submitted a complaint to the CAC dated 18 April 2011 under regulation 19(4) of The Information and Consultation of Employees Regulations 2004 (the Regulations) that the Employer had not arranged for the holding of a ballot to elect information and consultation representatives. The CAC gave Mr Burgar and the Employer notice of receipt of the complaint on 20 April 2011. The Employer submitted a response to the complaint to the CAC dated 27 April 2011 which was copied to Mr Burgar.

2. In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chairman, and, as Members, Professor Susan Corby and Mr Robert Hill. The Case Manager appointed to support the Panel was Adam Goldstein.

THE COMPLAINT

3. On the complaint form Mr Burgar stated that he was both an employee and an employee's representative. Mr Burgar stated that a valid employee request had been made to the Employer via the CAC to negotiate an agreement in respect of information and consultation on 15 October 2010. He attached to the form a letter from the CAC dated 15 October 2010 informing him that, on the basis of the information provided by the Employer and the employees, the number of employees who had made a request regarding the establishment of information and consultation arrangements was 102 and the number of employees on the list provided by the Employer was 767. Mr Burgar also attached an email from the CAC dated 29 November 2010 confirming that there had been no application by the Employer to the CAC under Regulation 13. Mr Burgar stated that there had been no challenge by the Employer under Regulation 8 or any other provision.

4. Mr Burgar stated that the Employer had not arranged for the election or appointment of negotiating representatives and had therefore failed to comply with regulation 14. Mr. Burgar stated that, under Regulation 18(1)(a), the standard information and consultation provisions applied six months from the date of a valid employee request and that, on that basis, he believed that they applied on 15 April 2011. Mr Burgar submitted that the arrangements currently in place did not satisfy any of the requirements of the Regulations.

5. Mr Burgar attached to the complaint form the minutes of a Drivers Representatives meeting of 1 December 2010 in which Mr Burgar stated that the Employer had claimed to have prepared a draft agreement confirming the current arrangements, to be discussed with "selected representatives". Mr Burgar also attached copies of correspondence between him and the Employer following the employee request. These were as follows:

(1) a letter dated 10 January 2011 from Mr Burgar to Mary Eagle, the Employer's HR Manager, asking when she would make arrangements for the election or appointment of negotiating representatives within the meaning of the Regulations;

(2) a letter dated 13 January 2011 from Mary Eagle to Mr. Burgar acknowledging receipt of Mr Burgar's letter and asking for his "continued patience";

(3) a letter dated April 2011 (sic) from Mr Burgar to Mary Eagle asking when she would make arrangements for the election or appointment of ICER representatives;

(4) a letter dated 14 April 2011 from Mary Eagle to Mr Burgar acknowledging receipt of his letter and stating that she would discuss the matter with another individual and write to let Mr Burgar know the outcome.

THE EMPLOYER'S RESPONSE

6. On the response form the Employer was asked "Do you accept that you are, or were, under an obligation to conduct negotiations to reach agreement on information and consultation arrangements?" The Employer replied "Yes" to this question. Asked about the dates of any negotiations and the outcome of those negotiations, the Employer stated that it held Driver Representative meetings twice a year. At the last meeting on 1 December 2010 the Employer had agreed to draft an "Information & Consultation Agreement" which confirmed the arrangements already in place. The Employer stated that a meeting had been arranged to discuss the draft agreement with Mr Burgar on 18 May 2011.

7. Asked if it accepted that the standard information and consultation provisions applied to its undertaking, the Employer replied "Yes". The Employer was then asked to explain whether it had taken steps, or intended to take steps, to elect information and consultation representatives. The Employer stated that arrangements for informing and consulting employees had been in place for many years and each year Driver Representatives were elected to represent Drivers in their constituencies. The Employer stated that the process of re-electing Driver Representatives had began on 30 July 2010 and that there were currently 20 such representatives. The Employer attached to the response form a memo dated 30 July 2010 from Mary Eagle to All Drivers about the election which included a form for individuals to nominate themselves. The Employer also attached a list of Driver Representatives and their constituencies dated September 2010.

MR BURGAR'S COMMENTS ON THE EMPLOYER'S RESPONSE

8. The Employer's response was sent to Mr Burgar by the CAC on 3 May 2011 and Mr Burgar was asked by the CAC to comment on it. In a letter to the CAC dated 8 May 2011 Mr Burgar stated that no negotiations had taken place either in accordance with the Regulations or otherwise and that the Driver Representative meeting of 1 December 2010 "was held under the present, non-compliant, arrangements."

9. Mr Burgar stated that the meeting arranged for 18 May 2011 was to discuss a draft agreement that had been prepared by the Employer, without input from the employees. Mr Burgar stated that he had requested an advance copy of the draft agreement to assist in allowing him to prepare for the meeting but that this request had been refused. Mr Burgar stated that he agreed that it may be possible to view the meeting as some sort of "pre-negotiation".

10. Mr Burgar noted that, having accepted that the standard provisions applied, the Employer claimed that the existing arrangements satisfied the requirements of the Regulations. Mr Burgar submitted that these arrangements failed to do so. Mr Burgar submitted that the Employer had attempted, improperly, to create a history of compliance with the Regulations. Mr Burgar attached a memo dated 18 August 2010 from Mary Eagle to All Drivers reminding them of the opportunity to put themselves forward as Driver Representatives. This memo stated that the Drivers Representatives meetings were introduced as part of the Regulations. Mr Burgar stated that he could find no reference by the Employer to the Regulations prior to the request for data which had been made on 13 May 2010 [1]. Mr Burgar asked the Panel to issue a declaration that the standard provisions applied from 15 April 2011 and to make an order under regulation 19(5) requiring the Employer to arrange for the holding of a ballot to elect or appoint information and consultation representatives.

THE PANEL'S QUESTIONS TO THE EMPLOYER AND THE EMPLOYER'S RESPONSE TO THOSE QUESTIONS

11. The Panel instructed the Case Manager to ask the Employer three questions, which were contained in a letter from the Case Manager to the Employer dated 13 May 2011. These questions were as follows:

  1. How and when did the Employer respond to the employee request dated 15 October 2010?

In your reply on box 5 of your completed Employer's response form dated 27 April 2011 you indicated that you accepted that the standard information and consultation provisions apply to your undertaking. Do you accept that the standard information and consultation provisions apply as from 15 April 2011? If you do not accept that they apply from 15 April 2011, please specify the date from which you consider that they do apply and give reasons for this.

Given that you accept that the standard information and consultation provisions apply, have you arranged for a ballot for the election of information and consultation representatives as required by regulation 19 and Schedule 2 of the Regulations?

12. The Employer responded to these questions in a letter to the Case Manager dated 20 May 2011. The Employer stated that, having taken advice and considered this further, it did not accept that the standard information and consultation provisions applied because "we are still in a period of negotiation." The Employer stated that it had started negotiations in relation to reaching an agreement in December 2010 when this was raised at a Driver Representative meeting. The Employer stated that it was currently in the process of electing representatives for the purposes of negotiating an agreement which it hoped to conclude within the prescribed time period. The Employer stated that the above had been explained to Mr Burgar in a meeting held on 18 May 2011.

SUBSEQUENT CORRESPONDENCE FROM MR BURGAR

13. In an email to the Case Manager dated 19 May 2011 Mr Burgar provided the Case Manager with an account of his meeting of 18 May 2011 with the Employer. The Employer was not asked by the CAC to respond to the contents of Mr Burgar's email and it has played no part in the Panel's decision. On 25 May 2011 Mr Burgar sent an email to the Case Manager commenting on the Employer's response. The Case Manager informed Mr Burgar and the Employer that the Panel had sufficient evidence to make a decision on the complaint and Mr Burgar's email of 25 May 2011 has played no part in the Panel's decision.

THE REGULATIONS

14. In order to consider the complaint it is necessary to consider in detail the provisions of the Regulations governing the obligations of an employer once a valid employee request has been received. It is therefore necessary to understand both the overall scheme of the Regulations and the detail of the specific provisions which have to be applied. In providing a general overview, the Panel has been greatly assisted by the analyses of Elias P in Stewart v Moray Council [2006] IRLR 592 and Amicus v Macmillan Publishers Ltd [2007] IRLR 885 and the CAC Panel in Amicus and Macmillan Publishers Ltd IC/8 (2006), [2007] IRLR 378.

Overview of the Regulations

15. The Regulations impose obligations on employers employing at least 50 employees to put in place arrangements to ensure that employees are informed and consulted on a wide range of issues. The Regulations are intended to give effect to European Directive 2002/14/EC, which established a general framework for informing and consulting employees. Regulation 7 provides that if there is a valid request by at least 10% of the employees in an undertaking, the employer is obliged to initiate negotiations to establish information and consultation arrangements by taking steps set out in regulation 14. The Regulations specify how the employer is to conduct the negotiations to establish a "negotiated agreement", including making arrangements for employees to elect or appoint negotiating representatives (regulations 14 and 15). The Regulations also specify the conditions which any such agreement must satisfy to constitute a "negotiated agreement" (regulation 16). If the employer fails to initiate negotiations in accordance with regulation 14, or the parties fail to reach agreement within a prescribed period, the standard information and consultation provisions apply (regulation 18). This involves the employer consulting employee information and consultation representatives elected in accordance with a statutory regime: regulations 18-20.

16. It is open to the employer to apply to the CAC for a declaration as to whether there was a valid employee request within a period of one month beginning on the date of the request (regulation 13). The Regulations also allow an employer to test support for an employee request where at the date of the request there are one or more agreements in place (termed 'pre-existing agreements') which meet certain minimum standards specified in the Regulations and the employee request has been made by fewer than 40% of employees in the undertaking (regulation 8). In such circumstances the employer may, subject to certain conditions, hold a ballot in which the employees vote on whether they endorse the request. Unless the ballot shows that a majority of those voting and 40% of the employees in the undertaking endorse the employee request, the employer need not take the prescribed steps to secure a negotiated agreement but may continue to operate the pre-existing agreement(s). An employer who intends to hold such a ballot must inform the employees in writing within one month of the date of the employee request.

Provisions material to this complaint

17. It is necessary for the purposes of this complaint for the Panel to consider the material parts of the Regulations dealing with undertakings, valid employee requests, negotiated agreements, and the standard information and consultation provisions.

The undertaking

18. Regulation 2 defines an undertaking as ".... a public or private undertaking carrying out an economic activity, whether or not operating for gain".

Valid employee request

19. Regulation 2 defines an "employee request" as ".... a request by employees under regulation 7 for the employer to initiate negotiations to reach an agreement under these Regulations".

20. Regulation 7, so far as is material, provides as follows:

(1) On receipt of a valid employee request, the employer shall .... initiate negotiations by taking the steps set out in regulation 14(1).

(2) .... an employee request is not a valid employee request unless it consists of -

(a) a single request made by at least 10% of the employees in the undertaking; or

(b) a number of separate requests made on the same or different days by employees which when taken together mean that at least 10% of the employees in that undertaking have made requests, provided that the requests are made within a period of six months.

(4) An employee request is not a valid employee request unless the single request referred to in paragraph 2(a) or each separate request referred to in paragraph 2(b) -

(a) is in writing;

(b) is sent to -

(i) the registered office, head office or principal place of business of the employer; or

(ii) the CAC; and

(c) specifies the names of the employees making it and the date on which it is sent.

(5) Where a request is sent to the CAC under paragraph 4(b)(ii), the CAC shall -

(a) notify the employer that the request has been made as soon as reasonably practicable;

(b) request from the employer such information as it needs to verify the number and names of the employee who have made the request; and

(c) inform the employer and the employees who have made the request how many employees have made the request on the basis of the information provided by the employees and the employer.

(7) The date on which an employee request is made is -

(a) where the request consists of a single request satisfying paragraph 2(a) or of separate requests made on the same day satisfying paragraph 2(b), the date on which the request is or requests are sent to the employer by the employees or the date on which the CAC informs the employer and the employees in accordance with paragraph 5(c) of how many employees have made the request; and

(b) where the request consists of separate requests made on different days, the date on which -

(i) the request which results in paragraph 2(b) being satisfied is sent to the employer by the employees; or

(ii) the CAC informs the employer and the employees in accordance with paragraph 5(c) of how many employees have made the request where that request results in paragraph 2(b) being satisfied.

Negotiated agreements: process and minimum conditions

21. Regulation 14 sets out the way in which an employer, following a valid employee request, must make arrangements for negotiating an information and consultation agreement. So far as is material to the present complaint, regulation 14 provides as follows:

(1) In order to initiate negotiations to reach an agreement under these Regulations the employer must as soon as reasonably practicable -

(a) make arrangements, satisfying the requirements of paragraph (2), for the employees of the undertaking to elect or appoint negotiating representatives; and thereafter

(b) inform the employees in writing of the identity of the negotiating representatives; and

(c) invite the negotiating representatives to enter into negotiations to reach a negotiated agreement.

(2) The requirements for the election or appointment of negotiating representatives under paragraph 1(a) are that -

(a) the election or appointment of the representatives must be arranged in such a way that, following their election or appointment, all employees of the undertaking are represented by one or more representatives; and

(b) all employees of the undertaking must be entitled to take part in the election or appointment of the representatives and, where there is an election, all employees of the undertaking on the day on which the votes may be cast in the ballot, or, if the votes may be cast on more than one day, on the first day of those days, must be given an entitlement to vote in the ballot.

(3) The negotiations referred to in paragraph 1(c) shall last for a period not exceeding six months commencing at the end of the period of three months beginning with the date on which the valid employee request was made .....

There are certain periods that do not count towards the three month period but none is material to this complaint.

22. Regulation 16 sets out the conditions which a negotiated agreement must satisfy.

The standard information and consultation provisions

23. The application of the standard information and consultation provisions is set out in regulation 18, which so far as is material provides as follows:

(1) Subject to paragraph (2) -

(a) where the employer is under a duty, following the making of a valid employee request ..., to initiate negotiations in accordance with regulation 14 but does not do so, the standard information and consultation provisions shall apply from the date -

(i) which is six months from the date on which the valid employee request was made ..., or

(ii) information and consultation representatives are elected under regulation 19,

whichever is the sooner

24. Regulation 19 provides for the election of information and consultation representatives prior to the application of the standard information and consultation provisions and allows for a complaint to be lodged with the CAC should an employer fail to arrange for the holding of a ballot. The present complaint is brought under regulation 19, which reads as follows:

(1) Where the standard information and consultation provisions are to apply, the employer shall, before the standard information and consultation provisions start to apply, arrange for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives.

(2) The provisions in Schedule 2 to these Regulations apply in relation to the arrangements for and conduct of any such ballot.

(3) In this regulation the "relevant number of information and consultation representatives" means one representative per fifty employees or part thereof, provided that that number is at least 2 and does not exceed 25.

(4) An employee or an employee's representative may complain to the CAC that the employer has not arranged for the holding of a ballot in accordance with paragraph (1).

(5) Where the CAC finds the complaint well-founded, it shall make an order requiring the employer to arrange, or re-arrange, and hold the ballot.

(6) Where the CAC finds a complaint under paragraph (4) well-founded, the employee or the employee's representative may make an application to the Appeal Tribunal under regulation 22(6) and paragraphs (7) and (8) of that regulation shall apply to any such application.

25. Regulation 20 sets out the content of the standard information and consultation requirements.

THE PANEL'S CONCLUSIONS

26. The Panel has carefully considered the submissions of Mr Burgar and the Employer and the supporting documentation in reaching its conclusions.

The undertaking

27. On the basis of the evidence before it, the Panel has concluded that the Employer is a private undertaking carrying out an economic activity and is therefore an undertaking within the meaning of regulation 2. The Panel has received no evidence to the contrary. On the basis of the figure supplied by the Employer to the CAC, as set out in paragraph 3 above, the Panel is satisfied that the undertaking employs at least 50 employees, as required by paragraph 3 and Schedule 1 to the Regulations.

Valid employee request

28. Mr Burgar attached to his complaint a copy of a letter from the CAC dated 15 October 2010 informing him that 102 employees had made a request regarding the establishment of information and consultation arrangements and that the number of employees on the list provided by the employer was 767. The CAC also wrote to the Employer on 15 October 2010 in these terms. The Employer did not dispute the validity of the employee request either under the terms of regulation 13 (see paragraphs 3 and 16 above) or in its response to this complaint. Having considered the letters of 15 October 2010 and in the absence of any evidence to the contrary the Panel has concluded that there was a valid employee request. The date on which the employee request was made was the date on which the CAC informed the Employer and the employees of how many employees had made the request, ie 15 October 2010.

Were negotiations initiated?

29. On receipt of a valid request, an employer must initiate negotiations by taking the steps set out in regulation 14. The required steps must be taken as soon as reasonably practicable. They consist of the making of arrangements for all the employees of the undertaking to elect or appoint negotiating representatives in accordance with specified requirements, informing the employees in writing of the identity of those representatives and inviting them to enter into negotiations to reach a negotiated agreement. Regulation 14 goes on to impose time limits for making a negotiated agreement or agreements and regulation 18 states that if no agreement is reached within the specified time limit the standard information and consultation provisions apply.

30. The Panel notes that in its response to the complaint dated 27 April 2011 the Employer accepted that the standard information and consultation provisions applied. The Panel further notes that in its letter to the CAC dated 20 May 2011 the Employer stated that having taken advice and considered this further, the Employer did not accept that the standard provisions applied because it was still in a period of negotiation. The Employer stated in its letter of 20 May 2011 that it started negotiations in relation to reaching an agreement in December 2010 when this was raised at the Drivers Representative meeting. The Employer further stated that it was "currently in the process of electing representatives for the purposes of negotiating an agreement which we hope to conclude within the prescribed time period". Assuming that "representatives for the purposes of negotiating an agreement" are negotiating representatives as set out in Regulation 14(1), the Employer appears in its letter of 20 May 2011 to be submitting that the requirements of 14(1) are now being satisfied through the election or appointment of such negotiating representatives. However, Regulation 7(1) requires the employer to initiate negotiations by taking the steps set out in regulation 14(1) on receipt of a valid employee request, and regulation 14(1) requires, inter alia, arrangements to be made for the election or appointment of negotiating representatives as soon as reasonably practicable. The Panel does not consider that a delay of more than seven months since the employee request was made constitutes compliance with the duty to make arrangements "as soon as reasonably practicable". Indeed, any finding to the contrary would be incompatible with regulation 18, which states that where an employer is under a duty to initiate negotiations in accordance with regulation 14(1) but does not do so, the standard information and consultation provisions shall apply six months from the date on which the valid employee request was made. For the avoidance of doubt, the Panel does not consider, on the basis of the evidence before it, that the Employer initiated negotiations in accordance with regulation 14 at any earlier stage. The Panel therefore concludes that the employer has not initiated negotiations in accordance with regulation 14.

31. The Panel notes that the minutes of the Drivers' Representative meeting held on 1 December 2010 suggest that the Employer at that time considered that its existing arrangements satisfied the requirements of the Regulations. However the Panel also notes that the Employer at no time sought to argue that it was entitled to hold a ballot to seek the endorsement of the employees for the employee request under the terms of regulation 8, outlined in paragraph 16 above. The Panel further notes that, in order to hold such a ballot, the employer is required to inform the employees in writing within one month of the employee request of its intention to do so. The time limit for doing this has long passed. The Panel has not, therefore, found it necessary to consider for the purposes of this decision whether the Employer's existing arrangements constituted a "pre-existing agreement" within the terms of regulation 8(1).

Application of the standard information and consultation provisions

32. The Panel finds that the employer was under a duty to initiate negotiations pursuant to regulation 14 but failed to do so. In such circumstances regulation 18 comes into operation. Under regulation 18(1)(a), the standard information and consultation provisions apply from the date which is six months from the date on which the valid employee request was made or from the date that information and consultation representatives were elected under regulation 19, whichever is the sooner. As discussed in paragraph 34 below, the Panel has found no evidence that information and consultation representatives were elected under regulation 19. It follows that under regulation 18(1)(a), the standard information and consultation provisions applied six months from the date on which the valid employee request was made. As stated in paragraph 28 above, the employee request was made on 15 October 2010. Accordingly the standard provisions applied, and should have been in place, from 15 April 2011.

Employer's duty under regulation 19.

33. Under regulation 19(1), where the standard information and consultation provisions are to apply, the employer must, before they start to apply, arrange for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives. This ballot is subject to the provisions of Schedule 2 which, among other matters, requires the appointment of an independent ballot supervisor.

34. Mr Burgar has complained, under regulation 19(4), that the employer has not arranged for the holding of a ballot in accordance with regulation 19(1). In April 2011 Mr Burgar wrote to the Employer asking when he could expect the Employer to make arrangements for the election or appointment of representatives. On 14 April 2011 the Employer acknowledged receipt of this letter and said that it would write to him again. Copies of both letters were attached to the complaint form. On the response form, in answer to the question whether it had taken steps, or intended to take steps, to elect Information and Consultation Representatives, the Employer stated that arrangements for informing and consulting employees had been in place for many years and each year it elected Driver Representatives to represent Drivers in their constituencies. However it provided no evidence that the specific requirements of regulation 19 and Schedule 2 have been met and the Panel has received no evidence of this from any other source. Accordingly, the Panel concludes that the Employer failed to carry out its duty to arrange for the holding of a ballot under regulation 19(1) and upholds Mr Burgar's complaint under regulation 19(4). Further, pursuant to regulation 19(5), the Panel will order the Employer to arrange for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives. It should be noted that Schedule 2 to the Regulations will apply to these arrangements.

DECISION AND ORDER

35. The complaint of the employee/employee's representative under regulation 19(4) that the Employer has not arranged for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives is well-founded.

Pursuant to regulation 19(5), it is ORDERED THAT:

36. The Employer shall arrange for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives in accordance with regulation 19(1) and the provisions of Schedule 2 to the Regulations.

Professor Gillian Morris

Professor Susan Corby

Mr Robert Hill

6 June 2011

 [1] This request for data later led to a complaint to the CAC: IC/33 (2010). The complaint was withdrawn after the data was supplied.