Negotiating an agreement
You must start negotiating an information and consultation agreement, if there’s not a valid agreement already and either:
In terms of the law, 'negotiating' means that you and employee representatives discuss things together to agree on:
- how informing and consulting will happen
- when it will happen
- the matters that will require consultation
Electing employee representatives
For negotiations to start, you must arrange as soon as possible for employees to choose their representatives. Representatives can be either:
- appointed, if one of them offers to be a representative and other employees agree
You must not:
- appoint employee representatives yourself
- assume any existing trade union representatives will automatically represent employees
It's a good idea to inform employees or any existing representatives (such as trade union representatives) before finalising the arrangements for electing or appointing negotiating representatives. This so they have the chance to share their views.
How employee representatives are chosen
All employees must be represented effectively. For example, you must make sure:
- representatives represent all employees and cover all parts of the organisation
- the number of representatives is suitable based on the number of employees – too few would mean a risk of employees not being appropriately represented, too many could make it difficult to reach agreement
How representatives are chosen can depend on how many employees are interested in doing that work. For example, a business's marketing team may have several people interested in becoming a representative, so a ballot (vote) may be needed. But the accounts team may have only one person interested, so no ballot is needed.
How an election should be run
You must ensure any ballot is fair. For example:
- the vote is open to everyone
- there's no pressure to vote for anyone in particular
- voting can be done privately (a 'secret ballot')
You can choose to appoint an independent person to supervise the ballot.
After employees have chosen their representatives
After representatives are chosen:
- as soon as possible, you must tell employees who they are and invite the representatives to start negotiations
- you have 6 months to reach an agreement
If you want to set up an agreement without an employee request
You can set up a workplace group ('forum') without receiving a request for employees.
Setting up a formal agreement
You can also start negotiating a formal information and consultation agreement without receiving a request from employees.
If you do this, you must inform all employees in writing about what's happening.
You must still make sure employees choose their representatives as soon as possible.
Things to remember when negotiating
When negotiating, employee and employer representatives should take time to:
- listen to everyone's views
- make sure everyone gets a say
So that representatives make an informed decision, they should know what happens if there's no negotiated agreement within 6 months of representatives being chosen.
How long to reach an agreement
Once employee representatives have been agreed, you have 6 months to negotiate an information and consultation agreement.
If either side wants to extend the 6-month period:
- both sides must agree
- this agreement to extend must be reached before the 6 months is up
- the extension must be for a set time period
What makes an agreement valid
An information and consultation agreement must:
- cover all employees
- set out the circumstances in which you must inform and consult employees
- require that where you provide information on the employment situation, this information must also cover any agency workers you use
- be in writing, dated and signed by you
The agreement must allow employees to either:
- choose representatives who'll be informed and consulted with on the employees' behalf
- be informed and consulted with directly
It must be approved by either:
- all employee representatives
- a majority of representatives, along with 50% of employees in writing or through an employee ballot
What should be negotiated
To make sure you get an agreement that meets the needs of your workplace, it's important to consider the following points when negotiating.
Who'll be covered by the agreement
It may not be appropriate to have one agreement covering all employees. It may be better to have separate agreements, for example:
for people in different job levels or locations
when collective agreements already cover certain employees
How informing and consulting can be done
For complex matters or larger workplaces, informing and consulting could take place face to face using a formal group, such as a workplace forum.
For simpler matters or smaller workplaces, it may be easier to inform and consult with the whole workforce, for example using notice boards or all-staff emails.
If a workplace forum is needed, it's good practice to include:
- elected employee representatives who represent all parts of the business or organisation
- management representatives that include senior management
The employer and employee representatives should agree:
- how many employee representatives will be needed
- how they'll be elected or appointed
- how they'll be trained
- how long they'll stay in the role
How often and when consulting will happen
You and employees should agree:
- how often and when consulting happens
- the way it happens, for example through newsletters or an intranet
- how urgent issues can be dealt with
What matters will be consulted on
An agreement should focus on significant issues that the business or organisation faces. It should not be used to deal with minor or day-to-day issues.
Matters that could be included are:
- working conditions
- new ways of working
- the output and quality of the business's goods or services
- health and safety
- important new equipment
- new training needs for staff
- staffing levels
- physical and mental wellbeing
If it's not easy to agree what matters will need consulting on, it can be a good idea to start by agreeing those that will not be consulted on. For example, it's sensible to not cover pay and conditions if they're already negotiated through a union.
How confidential business information will be handled
By law, you can keep certain business information confidential.
For example, for a food manufacturer it's usually legal to decide that sensitive information about the cost of its ingredients will not be shared with anyone outside of the business.
You should agree:
- how such information will be kept confidential and, if it needs to be shared with certain people, such as employee representatives
- what will happen if confidentiality is broken, for example whether disciplinary measures will be used
The law on redundancies and contract changes
The law sets out different consultation requirements for:
- changes to employment contracts
- a business transfer (TUPE)
- changes to your pension arrangements
This means you could decide to deal with those matters separately to the other matters you're discussing.
When an agreement needs to be reviewed
As workplaces are constantly changing, it can be helpful to think about whether the agreement needs to be reviewed after a certain amount of time.