Promoting Effective Consultation? Assessing the Impact of the ICE Regulations
| Author | Mark Hall,Sue Hutchinson,John Purcell,Jane Parker,Michael Terry |
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| DOI | http://doi.org/10.1111/j.1467-8543.2011.00870.x |
Promoting Effective Consultation?
Assessing the Impact of
the ICE Regulationsbjir_870355..381
Mark Hall, Sue Hutchinson, John Purcell,
Michael Terry and Jane Parker
Abstract
Drawing on evidence from longitudinal case studies in 25 organizations, this
article examines whether information and consultation (I&C) bodies estab-
lished in the context of the UK’s Information and Consultation of Employees
Regulations 2004 have been the vehicle for effective consultation, based on
objective criteria. Assessed against the regulations’ default provisions that
require I&C concerning strategic business issues and major organizational
change, a substantial minority of participating organizations were categorized
as ‘active consulters’, while a majority were ‘communicators’. The differing
trajectories of I&C primarily reflected internal organizational dynamics, par-
ticularly management’s approach to consultation. Beyond providing the cata-
lyst for managerial moves to introduce I&C, the influence of the statutory
framework proved largely peripheral.
1. Introduction
The 2002 EU directive on employee information and consultation (I&C) was
widely seen by policy-makers, practitioners and academics as having particu-
lar significance for the UK. Most EU countries at that time had long-
standing statutory works councils or trade union-based systems of I&C
regulated by centralized collective agreements that were largely unaffected
by the directive. In contrast, the absence of similar arrangements in the UK
and Ireland, reflecting their ‘voluntarist’ industrial relations traditions,
meant that the directive required extensive regulatory reform. Following EU
enlargement, most new member-states, notably those in central Eastern
Europe, were also faced with the similar challenge of accommodating EU
Mark Hall, John Purcell and Michael Terry are at the University of Warwick. Sue Hutchinson
is at the University of the West of England. Jane Parker is at Massey University.
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British Journal of Industrial Relations doi: 10.1111/j.1467-8543.2011.00870.x
51:2 June 2013 0007–1080 pp. 355–381
© John Wiley & Sons Ltd/London School of Economics 2011. Published by John Wiley & Sons Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
legislation derived from continental Western European traditions of
workforce-wide employee consultation.
The resulting Information and Consultation of Employees (ICE) Regu-
lations 20041represented a radical development for the UK. Historically,
employee consultation had not generally been regulated by the law in the
UK, in line with the policy of voluntarism and the primacy given to trade
union-based representation and collective bargaining. UK statutory provi-
sions requiring issue-specific I&C on redundancies and business transfers
have existed since 1975 and 1981, respectively, and legislation promoting
transnational I&C in multinational companies dates from 1999. But the
ICE Regulations established, for the first time in the UK, a comprehensive
statutory framework giving employees in domestic undertakings the right
to be informed and consulted by their employers. Importantly, the range of
topics potentially subject to I&C extended to key business, employment
and restructuring issues. At the same time, the regulations constituted a
highly flexible regulatory approach to implementing the directive (Hall
2006; Koukiadaki 2009). Employers need not act unless 10 per cent of their
employees trigger statutory procedures intended to lead to negotiated I&C
agreements or, where ‘pre-existing agreements’ (PEAs) apply, 40 per cent
and a majority of those voting support such negotiations in a ballot. Either
category of agreement can be the vehicle for organization-specific I&C
arrangements. Only where the regulations’ procedures are triggered
but no agreement is reached are ‘standard’ or default I&C provisions
enforceable.
Given the new regulatory framework’s permissive character, a key ques-
tion concerns the impact of the regulations in practice. Prior to the com-
mencement of the ICE Regulations, Hall and Terry (2004: 226) argued that
their main impact was likely to be ‘legislatively-prompted voluntarism’,
with the legislation driving the diffusion of organization-specific I&C
arrangements. In quantitative terms, the limited data available (e.g. Con-
federation of British Industry (CBI) 2006; Industrial Relations Services
(IRS) 2006; Labour Research Department (LRD) 2006) suggest that
the regulations have prompted both increases in the incidence of I&C
mechanisms and modifications to existing arrangements, notably in the
UK operations of multinational companies (Marginson et al. 2010). This
process has been largely employer-led (Hall 2010). There have been few
reported instances of the regulations’ trigger mechanism being utilized by
employees or — indirectly — by unions. Similarly, only 31 cases in 19
organizations were referred to the Central Arbitration Committee over the
period 2005–2010.
But another dimension of the regulations’ impact — and the focus of this
article — is the quality of consultation in organizations that have introduced
I&C bodies in the new legislative context. A mixed assessment of the opera-
tion of I&C bodies emerges from case-study research published to date.
Taylor et al. (2009) reported that restructuring initiatives in six major union-
ized companies were, in each case, presented as a fait accompli despite the
356 British Journal of Industrial Relations
© John Wiley & Sons Ltd/London School of Economics 2011.
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