The Information and Consultation of Employees Regulations 2004

Pre-existing agreements: ballot for endorsement of employee request

8.—(1) Subject to regulation 9, this regulation applies where a valid employee request has been made under regulation 7 by fewer than 40% of employees employed in the undertaking on the date that request was made and where there exists one or more pre-existing agreements which—

(a)are in writing;

(b)cover all the employees of the undertaking;

(c)have been approved by the employees; and

(d)set out how the employer is to give information to the employees or their representatives and seek their views on such information.

(2) Where this regulation applies, the employer may, instead of initiating negotiations in accordance with regulation 7(1), hold a ballot to seek the endorsement of the employees of the undertaking for the employee request in accordance with paragraphs (3) and (4).

(3) The employer must—

(a)inform the employees in writing within one month of the date of the employee request that he intends to hold a ballot under this regulation; and

(b)arrange for the ballot to be held as soon as reasonably practicable thereafter, provided that the ballot does not take place before a period of 21 days has passed since the employer informed the employees under sub-paragraph (a).

(4) A ballot must satisfy the following requirements—

(a)the employer must make such arrangements as are reasonably practicable to ensure that the ballot is fair;

(b)all employees of the undertaking on the day on which the votes may be cast in the ballot, or if the votes may be cast on more than one day, on the first day of those days, must be given an entitlement to vote in the ballot;

(c)the ballot must be conducted so as to secure that—

(i)so far as is reasonably practicable, those voting do so in secret; and

(ii)the votes given in the ballot are accurately counted.

(5) Where the employer holds a ballot under this regulation—

(a)he must, as soon as reasonably practicable after the date of the ballot, inform the employees of the result; and

(b)if the employees endorse the employee request, the employer is under the obligation in regulation 7(1) to initiate negotiations; and

(c)if the employees do not endorse the employee request, the employer is no longer under the obligation in regulation 7(1) to initiate negotiations.

(6) For the purposes of paragraph (5), the employees are to be regarded as having endorsed the employee request if—

(a)at least 40% of the employees employed in the undertaking; and

(b)the majority of the employees who vote in the ballot,

have voted in favour of endorsing the request.

(7) An employee or an employees' representative who believes that an employer has not, pursuant to paragraph (3)(a), informed his employees that he intends to hold a ballot within the period specified in that paragraph may apply to the CAC for a declaration that the employer is under the duty in regulation 7(1) to initiate negotiations.

(8) Where an employer, acting pursuant to paragraph (3)(a), has informed the employees that he intends to hold a ballot, any employee or employees' representative who believes that the employer has not complied with paragraph (3)(b) may present a complaint to the CAC.

(9) Where the CAC finds a complaint under paragraph (8) well-founded it shall make an order requiring the employer to hold the ballot within such period as the order may specify.