CHAPTER 17 Information and consultation

The EU is trying to harmonise the approach to consultation of employees across Member States. The harmonisation policy operates at three levels: EU level transnational level Member State level.

The European Works Council Directive The Works Council Directive requires the establishment of formal processes for employers to consult and inform employees. The EWC Directive was transposed into national law by the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regulations). Information and consultation

The purpose of the Directive was to improve the right to information and to consultation of employees in Community-scale undertakings and Community-scale groups of undertakings. Information and consultation

Undertakings with more than 1,000 employees in the community and at least 150 in two Member States must establish a European Works Council. A Community-scale group of undertakings is a group of undertakings that has at least 1,000 employees within the Member States with at least two group undertakings in different Member States employing at least 150 employees. Information and consultation

The Company Statute The European Company Statute gives a company operating in more than one Member State the option of establishing itself as a ‘European company’ (societas Europaea, or SE) operating under EU rules rather than under a variety of national rules. Information and consultation

A company established as a societas Europaea must negotiate an information and consultation procedure with employees representatives. In the UK there is also mandatory duty to consult on: health and safety transfers of undertakings collective redundancies. Information and consultation

In relation to health and safety, Article 10 ensures that workers receive information from the employer about the safety and health risks of their jobs, or their workplaces, as well as information about what protective and preventive measures are to be taken. Article 11 of the Directive provides that employers shall consult workers and/or their representatives ‘and allow them to take part in discussions’ on all questions relating to safety and health at work. Information and consultation

Protection is also offered to the workers or workers’ representatives who take part in this process, including the right to time off work with pay for the purpose of carrying out their duties. Information and consultation

In relation to transfers of undertakings, the transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of the transfer shall be transferred to the transferee employer. It is as if the contract of employment was originally made between the transferee and the employee. Information and consultation

Information should be provided ‘long enough before a relevant transfer to enable the employer of any affected employees to consult all the persons who are appropriate representatives of any of those affected employees’. The information to be provided should consist of: –the fact that a transfer is to take place –approximately when it is to take place –the reasons for it –the legal, economic and social implications for employees –the measures that will take place. Information and consultation

In relation to collective redundancies, a collective redundancy is one involving the redundancy of more than 20 employees, and including those volunteering for redundancy. Information and consultation

The consultation required must include consultation about ways of: avoiding the dismissals reducing the numbers to be dismissed, and mitigating the consequences of the dismissals and must be undertaken ‘with a view to reaching agreement with the appropriate representatives’. Information and consultation

The obligation to consult over avoiding redundancies almost inevitably means consulting over the reasons for the dismissals. Contracts of employment can only be terminated after the consultation. The Directive requires the employer to effectively negotiate – and to allow the termination before negotiation would compromise those negotiations. Information and consultation

The Information and Consultation Directive The Information and Consultation Directive requires the establishment of procedures for all organisations employing more than 50 people. Information and consultation