The Information and Consultation of Employees Regulations: Voluntarism's Bitter Legacy
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00553.x |
| Date | 01 July 2005 |
| Author | K. D. Ewing,G. M. Truter |
| Published date | 01 July 2005 |
LEGISLATION
The Information and Consultation of Employees
Regulations:Voluntarism’s Bitter Legacy
K. D. Ewing
n
and G. M.Truter
nn
INTRODUCTION
The call for legislative support for the participation of workers in decision-
making in the enterprise has been a recurring theme at Community level since
the adoption of th e ¢rst social action programme in 1974. In the following 20
years, a number of initiatives were proposed by the European Commission,
1
but only three relating to speci¢c areas were adopted: the Directives on collec-
tive redundancies, acquired rights and health and safety.
2
An important break-
through was made in 1994 with the adoption of the Europea n Works Council
Directive(‘EWC Directive’),
3
which requires information and consultation pro-
cedures to be adopted in large companies with a signi¢cant presence in more
than one Member State. But it took another eight years to extend similar obli-
gations to national level companies by the adoption of the Information a nd
Consultation Directive (‘I&C Directive’).
4
Although the Directive was warmly
embraced by British trade unions,
5
with the introduction of the implementing
Information and Consultation of Employees Regulations 2004 (‘ICE Regula-
tions’),
6
the scope for optimism about its potential impact has been signi¢cantly
reduced. The voluntarist orientation of the Regulations has not only brought
the new measures into con£ict with the central promises of the I&C Directive,
but has also introduced further inconsistency into an already incoherent labour
relations regime.
7
This state of a¡airs should not be viewed in isolation from the
n
King’s College London
nn
Universityof Leicester
1 See B.Bercusson, European LabourLaw (London: Butterworths,1996),220.
2 See respectively, Directive 75/129/EEC, amended by Directive 92/56/EC and consolidated in
Directive 98/59/EC; Directive 77/187/EEC, amended byDirective 98/50/ECa nd consolidatedi n
Directive01/23/EC; Directive 89/391/EEC.
3 Directive 94/45/EC.
4 Directive 2002/14/EC.
5 See, for example, TUC, EU Directive on Information and Consultation: HowWill It A¡ect Relations in
the UK? Discussion Document,12 July2002,1.
6 SI 2004 No. 3426.
7 See Lord McCarthy,‘RepresentativeConsultations with Speci¢ed Employees ^ or the Future of
RungTwo’ in H. Collins, P. Davies and R.Rideout (eds.),Legal Regulationof the EmploymentRela-
tionship (The Hague: Kluwer LawInternational, 2000).
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(4) MLR 626^641
Directiveits elf:the objectives of that instrument might be clear,
8
but the detail is
scattered with seeds of confusion.
9
These seeds are likely to reap a bitter harvest, with the Directive and Regula-
tions coming at a time of high expectation in the UK. Problems have arisen in
relation to so called‘Rice Krispy’redundancies, withworkers learning about the
loss of their jobs while listening to themorning radio or watching breakfast tele-
vision. In other notorious examples, workers have been noti¢ed by text message.
But whatever the manner of informing workers, there has been a spate of inci-
dents in recentyears in whichworkers have been informedof the loss of their jobs
in controversial circumstances withoutany prior consultation. Some of thebetter
known of thesecases i ncluded Corus Steel, Rover andVauxhall Motors. In many
of these cases the decisions were made without consulting workers’ representa-
tives, even though the company i n question recognised a trade union for the pur-
poses of collective bargaining. It was widely hoped that the Directive and the
Regulations would put a stop to such abuse in a country where business leaders
openly acknowledge that it is ‘easier to close factories . . . than elsewhere in Eur-
ope’.
10
But partlyas a result of the lobbying activities of the United Kingdom to
weaken the Directive (with important consequences for the implementing regu-
lations) at the behest of a business community reluctant to acknowledge a social
dimension, these hopes have been dashed.
SCOPE OF APPLICATION
Problems are encountered immediately in the application questions: what is an
undertaking, to undertakings of what size do the Regulations apply, and who is
to be counted in determining whether or not the latter threshold has been met?
So far as the ¢rst of these questions is concerned, we see a total abdication of
responsibilityby the government to the courts.The question of whatis an under-
taking is at the heart of the Regulations: if there is no undertaking, there is no
obligation to comply with information and consultation obligations.Yet the de¢-
nition of an‘undertaking’, copied out from the I&C Directive, gives little away.
Thus an undertaking is‘apublic or privateundertaking carrying out an economic
activity, whether or not operating for gain’.
11
There are thus two key elements of
the de¢nition.One is the term ‘undertaking’ which is not made anyclearer by the
de¢nition.The other is the requirement that it carry out an ‘economic activity’.
This latter is clearly a limitation in the sense that not all undertakings will carry
out an economic activity.
12
Some indication of the government’sthinking is given
8 See the Preamble to the I&C Directive,recitals (6)^(11),(13),(18).
9 Most obviously, the commitment in article 1 to a ‘general framework setting out minimum
requirements’ is contradicted by article 5 which allows management and labour to negotiate
agreements thatare di¡erent from the terms of article 4 which sets out the practical arrangements
for information and consultation.
10 TheTimes, 6 December 2004.
11 Regulation 2.
12 So the fact that an entity is an undertaking for the purposes of Directive 01/23/EC (the Acquired
Rights Directive)does not necessarily mean that it will be anu ndertaking towhich the ICE Reg-
ulations apply. Nevertheless, the government has drawn attention to the case law under that
K. D. Ewing and G. M.Truter
627rThe Modern LawReview Limited 2005
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