An Employers Guide To Employee Representative Elections For Collective Redundancy Consultations And Other Workforce Representative Requirements (ICE; PEA; JCC; EWC; SNB; TUPE; PSC; HSCER)

Overview

Over the last 10 years there has been an increase in the

regulatory requirements for UK employers to consult with

employee representatives. This trend is still continuing with

even more employers being affected as of 6th April

2008. Consequently more and more employers have to organise

elections for their workforce to elect appropriate

representatives. Examples of these elections and ballots

include:

Collective Redundancy Consultations

Transfer of Undertakings (Protection of Employment)

Regulations (TUPE)

Information and Consultation of Employees (ICE)/National

Works Council (NWC)

Pre-Existing Agreement (PEA) ballot

Joint Consultative Committee (JCC)

Occupational and Personal Pension Schemes (Consultation

by Employers and Miscellaneous Amendment) Regulations

(PSC)

European Works Council (EWC) and Special Negotiating Body

(SNB)

Health and Safety (Consultation with Employees)

Regulations (HSCER)

Normally it is the employer's responsibility not only to

ensure the election takes place but also to ensure that it is

fairly and properly conducted and complies with all the

relevant regulations. This is a difficult role for employers or

their normal professional advisers to take on. Typically it

will be beyond their remit and they will not have access to the

specialist print, internet or telephone facilities needed to

run a secret ballot that is also secure (and if possible

swift). They may also be regarded by employees as interested

parties in the ballot, and this might lead to disputes about

the legitimacy of any election they manage. Fortunately all

employers and their professional advisers can call upon the

expert, impartial assistance of Electoral Reform Services (ERS)

to conduct nominations and elections, no matter how large or

small their workforce is. This article reviews the most common

requirements.

Election of Employee Representatives for Collective

Redundancy Consultations

If an employer is making 20 or more employees redundant in

one place of work within a 90-day period, this is deemed a

collective redundancy and the employer is normally under an

obligation to consult with employee representatives in addition

to consulting with individual employees. Furthermore it is the

employers responsibility to ensure that consultation is offered

to appropriate representatives of the workforce.

In some specific circumstances, trade union officials or

other existing workforce representatives can represent the

employees concerned. (For the official guidance on these

circumstances please see the Department for Business Enterprise

& Regulatory Reform web site at http://www.berr.gov.uk/employment/employment-legislation/employment-guidance

). In all other cases, new employee representatives should be

elected specifically for the consultation, and the employer

must:

Ensure that all those affected by the redundancy

situation can stand in the election

Ensure that all those affected by the redundancy

situation are entitled to vote

Ensure that the election is fair

Ensure those voting can do so in secret

Ensure the votes given are accurately counted.

The first redundancy dismissals can only take effect thirty

days after consultations have started (or after 90 days if more

than 100 redundancies are being considered). Therefore the

employer frequently wants the electoral process completed as

rapidly as possible. Where practical, combining e-mail

distribution with internet voting or telephone voting or text

(SMS) voting is usually much faster than a traditional postal

ballot and can be a perfectly legitimate method of election.

However it is vital that safeguards are put in place to prevent

multiple voting and to protect the right of every employee to

vote in secret. Further details of online voting (including an

online demonstration) are available at http://www.electoralreform.co.uk/election_services/internet_voting.asp

and further details of telephone and text voting are at http://www.electoralreform.co.uk/election_services/telephone_voting.asp.

Election of employee representatives for TUPE

consultations.

The Transfer of Undertakings (Protection of Employment)

Regulations (TUPE) is the main piece of legislation governing

the transfer of an undertaking, or part of one, to another. The

regulations are designed to protect the rights of employees in

a transfer situation enabling them to enjoy the same terms and

conditions, with continuity of employment, as before. The rules

concerning when TUPE applies are complicated and employers

should always consult with their lawyer. However in very

general terms, TUPE applies to:

mergers

sales of a businesses by sale of assets

a change of licensee or franchisee

the gift of a business through the execution of a

will

contracting out of services

changing contractors

where all or part of a sole trader's business or

partnership is sold or otherwise transferred

To comply with TUPE, an outgoing employer must inform and

consult with appropriate representatives of the affected

employees about the...