Information and Consultation Directive: ‘significant’… or not?

The High Court judge responsible for policing the new Information and Consultation Directive played down concerns about its impact at last week’s Employment Lawyers Association (ELA) annual lecture, as lawyers debated “potentially the most significant piece of employment legislation” to be passed in the UK.

Sir Michael Burton, president of the Employment Appeals Tribunal (EAT) and chairman of the Central Arbitration Committee (CAC), told delegates that the directive ( Directive 2002/14/EC ) was the CAC’s “new challenge” as the Government published draft regulations this month. The CAC, which already resolves disputes between bosses, workers and unions over statutory recognition, will be the body that oversees the new legislation, which will give employees a wider right to information from employers. The directive allows for the establishment of compulsory works councils for undertakings with at least 50 employees. The CAC’s role is to facilitate the setting up of these arrangements.

“I have no doubt that the CAC is the proper Court of First Instance,” Burton told delegates. “It has both practical experience of the world of work and legal experience of applying legislation in the area of collective relations. It also has many years of expertise in the area of disclosing information for collective bargaining purposes.” He predicted that that any new legislation would not “add greatly to our burdens”. The draft regulations will come into force from April 2005 for businesses with 150-plus employees.

Meanwhile, lawyers debated the impact of the new legislation, which the former TUC general secretary John Monks has already described as “potentially the most significant piece of employment legislation ever to be introduced in the UK”.

John Clinch, an ELA committee member and legal officer at Unison, attacked the draft regulations in The Lawyer as “a feeble transposition of the directive”. He said that the directive’s powers had been watered down because the regulations allow for employers setting up their own work councils to avoid having to deal with a ‘default model’ under the regulations. Clinch also argued that the regulations included “a classic sop to business interests” by allowing employers to consult directly with employees and not through the representatives.

In his lecture, Burton raised questions over how the CAC would be able to handle issues between non-unionised employers and employee representatives. “Of course, we will need training in the niceties of the new legislation, just as we had to be educated in relation to the issues of trade union recognition,” he said. “But the members who have been appointed to the CAC over the past few years will be able to bring to bear on the new disputes, as to information and consultation, their considerable experience from both sides of industry.”

Under the new directive, the judge predicted a clash between the new regulations and existing collective bargaining arrangements. He said: “By definition, the information and consultation regulations are about consulting with all the employees within an undertaking, and there may be a conflict with existing arrangements, which for example may not cover all employees. I’m sure many employers will have to audit their present arrangements to ensure compliance.”