Darnton v Bournemouth University

An employer can be penalised financially for not complying with the Information and Consultation of Employees (ICE) regulations unless they have a “reasonable excuse”. In Darnton v Bournemouth University, the Employment Appeal Tribunal (EAT) said that a mistaken, although genuine, belief that the ICE regulations had been complied with was not enough to constitute a “reasonable excuse”.

Basic facts

Mr Darnton, an employee at the university’s business school, made a request under the ICE regulations on 8 November 2007, thereby triggering the procedure for the negotiation of an ICE agreement.

This meant that the university had to arrange for the election of negotiating reps (which it did) and had to reach agreement on this within nine months from the date on which the request was made (8 August 2008).

The university, however, thought Mr Darnton had made his request on 29 November 2007 and that it therefore had until 29 August 2008 to reach an agreement or agree an extension. As it managed to agree an extension by 29 August, it thought it could validly continue negotiations on reaching an ICE agreement.

However the Central Arbitration Committee (CAC) had decided on 5 November 2008 (in related proceedings brought by Mr Darnton), that as his original request to trigger the procedure for negotiating an ICE agreement had been made on 8 November 2007, the extension did not comply with the time limit laid down in the regulations.

That meant that the default provisions of regulation 18 were triggered and “standard information and consultation provisions” came into effect, requiring the university to arrange for the election of ICE reps by 8 February 2009. Notwithstanding the CAC ruling, the university did not do that, deciding to push on instead with the negotiations it thought had been validly extended. It concluded these negotiations by 12 February 2009 and subsequently operated the ICE agreement it had reached.

Mr Darnton then complained again to the CAC because the university had failed to arrange for the election of ICE representatives The university argued that it had already secured an implicit agreement for an extension by 8 August 2008, following a meeting on 23 July 2008 and had therefore complied with the ICE regulations.

Second CAC decision

The CAC disagreed with the university and said on 20 May 2009 that, although the negotiating representatives had agreed on 23 July 2008 to a timetable for further negotiations, this did not constitute an extension agreement for the purpose of the legislation.

This was essentially because any agreement for an extension must be clearly identified as such and be for a defined period of time. On this basis no valid ICE agreement had been reached prior to 8 August 2008 and no valid agreement to extend negotiations to achieve an ICE agreement had been reached by 8 August 2008 either. Therefore Mr Darnton’s complaint was upheld. In anticipation of the CAC making this finding the university took steps, albeit belatedly, for the election of ICE representatives and meanwhile continued to operate the ICE agreement which had not been validly reached on a “shadow” basis.

Mr Darnton brought a complaint to the EAT for a penalty notice to be issued against the university because it had failed to comply with the default ICE regulations which should have come into effect..

EAT decision

The EAT upheld Mr Darnton’s complaint.. It said that the university had no evidence to substantiate its argument that it had an implicit agreement to an extension on 23 July 2008 and before 8 August 2008. The EAT went on to state that even if the university did genuinely believe that such an agreement had been reached, it did not accept “that simply taking a wrong view about a material matter is ... sufficient to constitute a reasonable excuse”.

In relation to the size of the penalty, the EAT said that it had to bear in mind that the breach was not deliberate, and nor did it result from a disregard of the university’s obligations under the ICE regulations.

Furthermore although the breach resulted in a substantial delay in the default procedures coming into operation, there had been ICE procedures in place since February 2009 which had provided a “shadow” forum which was operating effectively. The EAT therefore fixed the penalty towards the bottom end of the available scale at £10,000.