An Employers Guide To Employee Representative Elections For Collective Redundancy Consultations And Other Workforce Representative Requirements (ICE; PEA; JCC; EWC; SNB; TUPE; PSC; HSCER) - Employee Rights/ Labour Relations

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 6^th 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 8^th 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.

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)