The Transnational Information and Consultation of Employees (Amendment) Regulations 2010 (“TICE”)  amending the Transnational Information and Consultation of Employees Regulations 1999 (the “1999 Regulations”) in order to bring them into line with the recast 2009 European Works Council Directive (the “Directive”) in the UK, were put before Parliament on 6 April 2010.  The majority of the amendments are expected to come into force on 5 June 2011

The changes will be of relevance to UK based multinational companies which have either at least 1,000 employees in the European Economic Area (EEA) and at least 150 employees in a minimum of two other member states or are part of a group of companies which have at least 1,000 employees in the EEA and a minimum of two “group undertakings” with 150 employees each in any of the other member states.  (When the Agency Worker Regulations 2010 come into force on 1 October 2011 agency workers will be included in calculating the threshold numbers of employees for the agency that they are contracted to work for).

Transnational consultation agreements that were in place before the current regulations were implemented in 1999 will continue to be allowed to operate outside the scope of TICE, while agreements created or amended between 5 June 2009 and 4 June 2011 will (with limited exceptions) be allowed to continue to operate under the regime established by the 1999 regulations.

The main changes are as follows:

• new definitions of “information” and “consultation” reflecting those in the
  Directive where “information” means the transmission of data from an
  employer to employees’ representatives and “consultation” means
  “establishment of dialogue and exchange of views between employees’
  representatives and central management”.  In an attempt to clarify how
  (if at all) national and transnational information and consultation
  obligations interact with one another, the Regulations require that
  “where there is no agreement on how national and EWC dialogue are
  linked, the two processes must start within a reasonable time of each
  other”.  Furthermore, the Regulations will amend TICE 1999 to make it
  “explicit that the linkage between EWCs and national employee
  representation bodies only needs to occur to the extent that those
  national bodies are already entitled by law or agreement to be informed
  and consulted”;
• the requirement in earlier drafts of TICE for the employer to provide
  training to employee representatives has been removed and instead the
  language of the Directive has been transposed.  The Regulations
  therefore “require central management to provide the means required for
  the representatives to receive the necessary training”;
• the maximum penalty for breach of the Regulations has been increased from
  £75,000 to £100,000, despite opposition from employers;
• the Regulations will transfer jurisdiction from the Employment Appeal
  Tribunal and will establish the Central Arbitration Committee as the
  primary body to hear complaints of breach of the Regulations;
• a new six month time limit in which to submit a claim for alleged failures in
  the operation of a European Works Council or information and
  consultation procedure or management failures in relation to the same
  under regulations 21 (where the applicant considers that there has been
  a failure to comply with an EWC agreement or information has been
  provided by central management which the applicant believes is false or
  materially incomplete) and the new 21A (where the applicant believes
  that members of the special negotiating body have been unable to meet,
  members of the EWC have not been provided with the means to fulfil
  their duty to represent the interests of the employees or either body
  has not been provided with the means to undertake the required
  training).  However, there will still be no time limit on claims for
  failure to establish a European Works Council or information and
  consultation procedure.

Commentary

Affected employers should note the revisions to the Regulations and if necessary seek to take advantage of the “grandfathering” provisions to make amendments to existing arrangements prior to 5 June 2011.

Resources

Transnational Information and Consultation of Employees (Amendment) Regulations 2010 (SI 2010/1088)

Government response to consultation April 2010

Department for Business Innovation and Skills guidance April 2010

For further information or to discuss the issues raised, please contact Guy Abbiss on +44 (0) 203 051 5711.