Employment Information: Consultation

29 August 2007

First EAT decision on penalty for breach of ICE Regulations.

We have already alerted our clients to the importance of the recent EAT decision in the case of Amicus v MacMillan.

The employers had failed to make arrangements for the holding of a ballot to elect information and consultation representatives under the ICE Regulations 2004. The trade union involved applied to the EAT to levy the penalty for such failure as imposed by reg. 22. This was the first time that the EAT had to consider such a case and it decided to order a penalty of £55,000 (the statutory maximum being fixed at £75,000).

Points to note:

  • The EAT had some sympathy with the employer which argued that it already had arrangements in place for informing and consulting with its employees. However, although the requirements of the ICE Regulations might potentially undermine those arrangements, the EAT held that they still had to be complied with.

  • Giving its reasons for the level of penalty imposed, the EAT commented that it recognised that this was not the most serious breach that could be envisaged but it was a grave breach that had affected many (around 1350) employees.

  • The ICE Regulations currently apply to all employers with at least 100 employees but, from 6 April 2008, will apply to all employers with at least 50 employees. All such employers should seek advice now as to how their existing employee consultation arrangements will measure up to the requirements of the ICE Regulations.