Issue 93 - August 2007

I.C.E.
...stands for the Information and Consultation of Employees Regulations 2004. These regulations impose an obligation on employers to put into force information and consultation committees, rather like work councils, upon the receipt of request by staff, as long as that request meets certain conditions.

Employers with a "Pre Existing Arrangement" in place can resist the imposition of a statutorily prescribed forum being put in place, which is generally considered unduly onerous for employers.

The rules have been in force for those employers of more than 150 staff since 2005 and for employers of more than 100 since April this year. From 1 April 2008 they will also apply to employers of 50 or more members of staff.

In Amicus v MacMillan Publishers Ltd the Employment Appeal Tribunal (EAT) issued the very first penalty notice for the failure by an employer to comply with the ICE regulations.

The Amicus union presented a complaint to the Central Arbitration Committee (CAC) in respect of breaches of the rules by MacMillan; they failed to provide data for the purposes of determining the number of people it employed in the UK and they failed to arrange a ballot to elect representatives upon the receipt of an appropriate request.

The CAC does not have the power to impose a sanction upon employers who breach the ICE Regulations, that is left to the EAT who in this case imposed a fixed penalty of £55,000 (out of a possible maximum of £75,000).

The case gives interesting insight into how the courts will enforce the ICE rules and confirms the potential for punitive penalties. However, it is still our recommendation that companies of all sizes should consider how they inform and consult staff. We are familiar with drafting constitutions for ICE committees and advising on how these regulations operate. Our overall experience is that companies and businesses that communicate well with staff are at a reduced risk from employment litigation and other HR management problems that can arise. Despite the result of this case we continue to encourage employers to put in place some form of arrangement for the purposes of informing and consulting staff.

Some Statistics
Between April 2006 and March 2007 there has been a decrease in the number of claims to the Employment Tribunal (ET). Much of this can be put down to the fact that there were a large number multiple claims in years previously. Taking this out of the equation the reduction may be the result of a "blip" although supporters of the statutory dispute and dismissal procedures (SDDPs) will suggest that the (not so) new rules relating to disciplinaries and grievances mean that workplace issues are being resolved without the need for litigation.

Whatever the reason for the reduction, there were are some interesting statistics to consider:

• 10% of all claims in the East of England were for Sex Discrimination which is just above the average figure. However claims for Sex Discrimination in the South East run at a staggering rate of 22% of all claims;
• Other "spikes" were revealed in the East Midlands for claims brought under the National Minimum Wage regulations and in the North East for claims for Equal Pay;
• The vast majority of claims (42%) were for Unfair Dismissal;
• Overall 84,039 claims were presented to the ET, down by 24% from last year;
• The Government estimate that ETs cost employers £180,000,000 per annum.

Quickfire

• An original finding of an employer having indirectly racially discriminated against and victimised a member of staff for not supporting him in his claims against the relevant regulatory bodies was found by the Court of Appeal (CA) to be unfounded and perverse (the Claimant had been awarded over £800,000 by the ET). BMA v Rajendra Chaudhary.
• A dyslexic policeman who was not even aware of his dyslexia for the majority of his career was nevertheless discriminated against (disability) for not being given more time to sit an internal exam. The point the EAT made was that the condition had an adverse effect on his day to day activities; without it he would have found certain day to day tasks even easier. Paterson v Commissioner of the Police of the Metropolis.
• A local government employee had her pay stopped when she refused to go to work. She was suffering stress and her employer had agreed she should not attend her usual place of work while a grievance she had raised was being investigated. The employer suggested she should work from one of their many other centres in the meantime. There was no "mobility clause" in her contract of employment and she refused to agree to this suggestion. She brought a claim for unlawful deductions from her wages when her pay was stopped. The claim failed; the High Court was not impressed by the employee's apparent unreasonableness in a judgment that said, in effect, "no work, no pay".

If you have any questions about this, or any other employment law related matter, please be in touch with any member of the team. Also, if you think that you should have received an invitation to our Early Bird seminar recently, but did not, please let us know.

The content of this document is for general information only. As always, specific professional advice should be taken on each individual matter © Birketts Solicitors 2007. Birketts LLP is constituted as a limited liability partnership in accordance with the Limited Liability Partnerships Act 2000. Where we refer to a 'partner' of Birketts LLP, whether in this brochure or in any other correspondence or communication with you, the term 'partner' means a member of Birketts LLP, and shall not be construed as indicating that the members of Birketts LLP are carrying on business in partnership within the meaning of the Partnership Act 1890.

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