National level information and consultation 





Under the Information and Consultation of Employees Regulations 2004 (ICE regulations), UK employers must establish information and consultation bodies if 10% of the workforce request it. Once in place, the terms of reference of the ICE body can only be changed if 40% of the workforce votes in favour. These regulations derive from EU law.


The ICE regulations in their current form offer some scope for unions to strengthen collective voice in workplaces where no union is recognised. ICE reps need not be union members but there is nothing to stop union members standing for election. Union reps can represent both members and non-members, as with collective bargaining. The ICE body should be used by the employer to consult with reps about the organisation’s situation, structure and probable development of employment and future job plans. However, ICE is about consultation, not bargaining or negotiation.


The government’s intention, in drawing up the ICE regulations, was to encourage flexibility and to support pre-existing voluntary arrangements such as union recognition agreements. If at the date of a workforce request, there are already information and consultation arrangements in place meeting minimum standards and covering the entire workforce (called a “pre-existing agreement” (PEA)), the employer is not obliged to negotiate a new ICE agreement unless at least 40% of the workforce want this (regulation 8, ICE regulations). 





A union recognition agreement can be a PEA but only if it covers the entire workforce, has been approved by employees, and sets out how the employer will inform and consult. A recognition agreement will be approved in this sense if most of the workforce were union members when it was entered into (The Moray Council v Stewart [2006] UKEAT/0143/06/LA, Morrisey v University of London [2015] IC/50). 





To establish an ICE body after a valid workforce request, the employer must arrange for employees to elect or appoint negotiating representatives (regulation 14(1)(a), ICE regulations). Employees must be allowed to nominate candidates from across the whole workforce. It would be a breach of the ICE regulations for the employer to put forward as candidates only union reps from recognised unions (Morrisey), 





The election process must be confidential and the ballot window must be open long enough for employees to participate (a five-day email ballot in Morrisey was criticised as extremely short). 





The ICE regulations apply to all workplaces with 50 or more employees. Part-time workers are counted, although individuals working fewer than 75 hours per month can each be counted as half an employee. Agency workers are not included. 



The ICE regulations apply to any stable economic entity, whatever its legal status and whether or not it operates for profit (Acas v PCS [2018] UKEAT/0160/17/RN). 


In a successful claim by general union Amicus (now Unite), publishing firm Macmillan was the first employer to be fined for breaching its consultation duty under the ICE regulations. The EAT fined Macmillan £55,000, describing the company’s responses to the CAC as “vague” and “fudged” (Amicus v Macmillan Publishers Ltd UKEAT/0185/07). 





ICE rulings are published on the CAC website, where there is more information and guidance.




From 6 April 2020, the threshold for triggering a valid ICE request is to be cut from 10% to 2% of qualifying employees, subject to a 15 employee minimum.