Issue 101 - April 2008
Information and Consultation of Employees Regulations 2004 (The ICE Regulations)
The application of the regulations extends to undertakings
with 50 or more employees from 6 April 2008.
What does this mean to you?
Following a request from 10% of your employees, you will
be required by the ICE Regulations to negotiate and put in
place an information and consultation agreement (an I & C
agreement) governing how you will consult your workforce
about economic and employment-related matters.
Within three months of the request you must:
- make arrangements for employees to elect and appoint representatives;
- inform employees who has been elected/appointed;
- invite those representatives to begin negotiating the I & C agreement.
A negotiated agreement must:
- set out the circumstances in which the employer will inform and consult with employees;
- be in writing and dated;
- cover all employees of the undertakings;
- be signed by, or on behalf of, the employer;
- be approved on the employees' behalf in one of three ways:
- signature of all the negotiating representatives;
- signature of a majority of the negotiating
representatives and approval in writing by at least
50% of the employees in the workforce; or
- signature of a majority of the negotiating
representatives and approval in a ballot by 50% of
voting employees; and
-
provide for the appointment of I & C representatives to
whom the employer must supply information and with
whom the employer must consult on matters within the
scope of the agreement, or provide that the employer
must supply information to all of its employees and
consult with them directly.
Failure to negotiate an I & C agreement means the
standard information and consultation provisions (SICPs)
will apply. These are considered onerous for employers.
Our advice is to consider the implementation of some form
of communication vehicle as the above obligations vary
significantly if pre-existing agreements are in place which
are: in writing, cover all employees, have been approved
by the employees and set out how the employer is to
provide inform and consult employees or their
representatives.
Part Time Workers – Protection from Unlawful Treatment
In P Sharma & ORS v Manchester City Council eight
part-time lecturers had contracts with a clause that said
their hours could be varied annually subject to a
guaranteed minimum of a third of the previous year’s
hours. Not all part-timers had this clause in their contract.
In light of funding problems there were fewer hours to be
allocated. Those without this clause (including full and
part-time employees) were allocated hours ahead of those
with the reduction in hours clause.
The ET held that ‘the treatment was not on the ground that
the lecturers were part time per se but that they were a
particular type of part-timer.’ On that basis the ET decided
that they had not been subjected to unlawful treatment.
The EAT disagreed and held that it was no defence to say
that the term applied to some but not all part-timers.
Discrimination Questionnaires - drawing inferences ‘is not a tick-box exercise’.
A reassuring reminder from the EAT in D’Silva and
NATFHE that failure by an employer to respond to a
discrimination questionnaire does not, without more,
automatically raise a presumption of discrimination.
There will often be good reasons why questionnaires have
not been answered (or documents not disclosed): these
failures alone will have no bearing on whether an act of
discrimination took place.
When is a controlling shareholder an employee?
The EAT on Clark v Clark Construction considered the
criteria. The existence of a controlling shareholding is
relevant but the mere fact alone will not prevent a Tribunal
from finding a contract of employment.
The following will not necessarily prevent a contract of employment arising:
- controlling shareholding;
- ability to exercise real control of company’s actions;
- the fact that individual ‘built up’ the company;
- the fact that the individual takes loans or guarantees debts.
Conversely, factors which would negate an employment relationship include:
- conduct inconsistent with contractual terms e.g. holiday and hours of work;
- omission of contractual terms controlling key areas usually covered by an employment contract;
- absence of a contract or failure to reduce terms into writing.
If a contract is in existence, it is for the party seeking to
avoid the contractual employment relationship to persuade
the Tribunal of their argument.
Coupled with the recent case of Nesbitt which also held
that an employment relationship is easier to find among
shareholders, it seems that there is a sea-change to
support the near presumption of employment status. This
will be relevant to shareholders seeking to dispose of their
assets and will be relevant to purchasers considering their
ongoing relationship with the seller/director/employee.
Employment Budgetary Implications
-
‘non-dom’ tax reforms will adversely affect the taxation
of share incentives granted to employees and officers
who are not ordinarily resident, from 6 April 2008;
-
Key changes to the EMI option regime:
-
The three year EMI option grant limit will be increased
to £120,000 from £100,000 after 6 April 08;
-
Only companies with less than 250 employees will be
able to grant EMI options; and
-
Shipbuilding, steel and coal production will be
excluded trades after the Finance Bill receives Royal
Assent.
Quick Fire!
-
Cowen v Rentokil Initial Facility Services (UK) Limited t/a Initial Transport Services
If an employee starts a new job but loses it in a matter
of weeks or months, unless they are evidently at fault
for having lost the job, their former employer is likely to
remain liable for their ongoing losses when it comes to
determining what is just and equitable for the
compensatory award.
-
"Customers don't want Moroccans"
In Centrum voor Gelijkheid van Kansen en voor
Racismebestrijding v NV Firma Feryn a newspaper
published an interview with one of the firm’s directors;
under the above heading. He was reported to have
said that his firm would not recruit persons of Moroccan
origin in this interview and during a subsequent
television interview.
The Advocate General handed down his opinion that
public statements about employers’ recruitment
practices will be unlawful, despite the fact that it could
not be shown that the company has acted on this
practice nor that any identifiable applicant had been
refused employment.
If the ECJ follows the AG’s opinion, public statements
about an employer's recruitment practices will also be
unlawful.
Upcoming Events
-
Birketts LLP will be hosting two Mock Tribunals in
conjunction with 12 King’s Bench Walk Barristers, the
University of Essex and the University of East Anglia.
The first Mock Tribunal will be held at the UEA in
Norwich on the Thursday 15th May 2008, with the
second to be held in Colchester (date to be confirmed).
-
Birketts LLP is jointly hosting the “War for Talent”
seminars with Cooper Lomaz, Larking Gowen and
Pathfinder. These seminars are focused on giving
practical advice for finding and retaining top talent
within your business from the point of view of solicitors,
recruitment consultants and accountants.
The dates for these seminars are:
Norwich – Thursday 17th April
Ipswich – Thursday 24th April
Kings Lynn – Tuesday 20th May
-
Our Incentives and Rewards Team will be holding a
seminar on how to attract and retain key talent by using
share scheme incentives. This seminar will be held in
Ipswich on Thursday 17th April.
If you wish to attend any of these events please
contact Victoria Cole on 01603 756438.
The content of this document is for general information only. As always, specific professional advice should be taken on each individual matter
© Birketts LLP 2008. Solicitors regulated by the Solicitors Regulation Authority. Birketts LLP is constituted as a limited liability partnership in
accordance with the Limited Liability Partnerships Act 2000.
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