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Amicus v Macmillan Publishers Ltd

The Information and Consultation of Employees Regulations 2004 state that employers have to negotiate an agreement with employee representatives, if they receive a “valid employee request” from 10 per cent of the workforce.

In Amicus v Macmillan Publishers Ltd, the Central Arbitration Committee (CAC) was scathing in its criticism of Macmillan, saying that – despite its size - it was in serious breach of its duty to arrange for I&C representatives to be elected.

Basic facts

On 15 March 2006, Amicus submitted an employee request to the company to negotiate an Information and Consultation (I&C) agreement that was signed by 196 employees (out of a possible 1372). This was conveyed formally by the CAC to both parties on 6 April.

The union complained on 30 November 2006 that the company had failed to start the negotiating process. Macmillan argued that it already had appropriate mechanisms in place which were supported by representatives “of a significant majority of the workforce”.

The regulations

The regulations (which at the time applied to undertakings with at least 150 employees) state that employers have to initiate a negotiating process for I&C arrangements, once they receive a valid request from at least 10% of their employees. If they fail to reach an agreement within six months of the request, they have to abide by standard provisions set out in the regulations.

The only other option open to employers is under regulation 8. This states that if there are pre-existing agreements (PEAs) that have already been approved covering all employees, the employer only has to negotiate a new agreement if 40 per cent of the workforce asks them to.

If only 10 to 40 per cent ask for the agreement, the employer can hold a ballot to gauge the level of support. The obligation to negotiate then arises if at least 40 per cent of the workforce and a majority of those voting endorse the request.

CAC decision

The CAC agreed that a valid request had been made, in which case MacMillan should have started negotiations about I&C arrangements unless it could rely on regulation 8.

However, the Committee concluded that this defence was not open to the company because only one of the PEAs on which it wanted to rely had been made prior to the employee request for an I&C agreement (in direct contravention of regulation 2) and not all sites were covered.

That meant that MacMillan should have made arrangements for their employees to elect or appoint negotiating representatives, telling them who they were once they had been elected; and then starting negotiations with them. The CAC said that the company’s defence that it had a long-standing consultative committee did not cut any ice, not least because it did not cover all its employees.

As MacMillan had failed to initiate negotiations, the standard information and consultation provisions applied from 5 October 2006 (six months after the request was made on 6 April).

In those circumstances, employers have to hold a ballot of their employees to elect I&C representatives before the standard provisions start to apply. Macmillan had failed to do so and was therefore in breach of the regulations.

The panel upheld the union’s complaint and ordered the employer to arrange to hold the ballot to elect the relevant number of information and consultation representatives.

It also criticised Macmillan which it said could hardly be described “as a small employer. Further, it has a Group Personnel Director. Despite all of this, when faced with the present complaint under Regulation 19, the Employer did not, in terms of the Regulations, respond in a clear or coherent way.“