Regulatory requests

Darnton v Bournemouth University

The 2004 Information and Consultation Regulations require employers to start negotiating “as soon as is reasonably practicable” once they have received a “valid employee request”. In Darnton v Bournemouth University, the Central Arbitration Committee (CAC) said that employers do not have to do so within three months, despite Government advice to the contrary.

Basic facts

On 22 October and 8 November 2007, a total of 203 Bournemouth University employees put in a request to the CAC for their employer to negotiate an information and consultation agreement under regulation 14 of the I and C regulations.

The CAC initially ruled that, as fewer than 10 per cent of the employees had made the request (the employer said there were 2416 employees), they had not made a “valid employee request” under regulation 7. On 29 November, however, the employer informed the CAC that there were in fact only 1,830 employees, with the result that the threshold had been met and the University had to start negotiations.

One of the employees, Mr Darnton, then complained that his employer had not started negotiations within three months of the date of the original employee request (8 November) and therefore was in breach of regulation 14(3). As the standard information and consultation provisions applied, he argued that the University should have held a ballot of employees, which had not taken place.

For its part, the University said that the three month time limit did not start until November 29 when regulation 7 had finally been satisfied.

Relevant law

Regulation 7 of the 2004 Information and Consultation of Employees Regulations state that employers must make arrangements to negotiate an I and C agreement with employee reps, if they receive a “valid employee request” from 10 per cent of the workforce.

Regulation 14(1) stipulates that, “as soon as reasonably practicable” after receiving the request, employers must make arrangements for representatives to be elected or appointed; must write to the employees telling them who they are; and then must start negotiating. Regulation 14(3) states that the negotiations should not last more than six months “commencing at the end of the period of three months beginning with the date on which the valid employee request was made or the valid employer notification was issued…”

Regulation 18 states that if the employer fails to start the negotiations under regulation 14(1), or if the parties fail to reach a negotiated settlement within the time limit in regulation 14(3), the standard information and consultation provisions apply. These include a provision for a ballot of employees to be held to elect information and consultation representatives.

CAC decision

The CAC said that the “trigger date” under regulation 7 was the date on which it (the CAC) notified the University and Mr Darnton about how many employees had made the request once the number of requests satisfied the 10 per cent threshold. In this case 8 November. It was certainly not the date when the employer, as in this case, notified the CAC “as to a revised figure for the number of employees in the undertaking.”

It then said, however, that regulation 14(3) did not require the steps set out in regulation 14(1) to be completed within three months of the valid request, but rather “as soon as reasonably practicable”. Otherwise the requirement on employers to do so would be completely redundant.

Although guidance issued by the Government stated that employers should initiate negotiations with employee representatives within three months at the most, the CAC said it was for the courts (including the CAC) to interpret the legislation, not the Government.

The CAC concluded that as the University had complied “as soon as reasonably practicable” after the date of the request with the requirements of regulation 14(1), the standard information and consultation provisions set out in regulation 18 did not apply. The University was not, therefore, under a duty to hold a ballot to elect information and consultation representatives.