Decision

Decision

Updated 25 June 2024

Applies to England, Scotland and Wales

Case Number: IC/67(2024)

25 June 2024

CENTRAL ARBITRATION COMMITTEE

INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 2004

REGULATION 22: BREACH OF NEGOTIATED AGREEMENT

DECISION OF WHETHER TO ACCEPT THE COMPLAINT

The Parties:

Mr Roberto Mozzachiodi

and

Goldsmiths College, University of London

1. Introduction

1)        Mr Roberto Mozzachiodi (the Applicant) is an employee/employee’s representative^{[footnote 1]} at Goldsmiths College, University of London (the Employer). He submitted an application to the CAC on 28 May 2024 under Regulation 22(1) of the Information and Consultation of Employees Regulations 2004 (the ICE Regulations).  This complained that the Employer had failed to comply with the terms of a negotiated agreement or one or more of the standard information and consultation provisions. The CAC gave the Applicant and the Employer notice of receipt of the application on 29 May 2024. The Employer submitted its response to the complaint on 5 June 2024.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Ms Laura Prince, K.C., Panel Chair, and, as Members, Mr Martin Kirke and Mr Michael Clancy. The Case Manager appointed to support the Panel was Joanne Curtis.

2. Summary of the application

3)         The applicant failed to answer the question on the application form as to whether there was a negotiated agreement which conformed to the definition in the ICE Regulations, but in the question that followed, which called for the date of any such agreement, the applicant referred to a Trade Union Recognition Agreement dated 9 June 2010 (“TURA”) and the Managing Organisational Change Policy dated 25 June 2013 (“PMOC”). The applicant attached these documents to the application. The applicant then failed to answer the question as to whether he believed that the standard provisions applied because no agreement had been reached but when asked to give the date that they applied, stated 18 March 2024.  

4)         The applicant went on to explain why he considered that the Employer had failed to comply with the terms of the negotiated agreement or one or more of the standard information and consultation provisions. The applicant started by referring to sections in the Policy on Managing Organisational Change followed by relevant sections in the Trade Union Recognition Agreement before detailing his complaint.  This was that on 18 March 2024, the Employer served a Section 188 notice of collective consultation over proposed compulsory redundancies and that the redundancies fell within a broader organisational change project under the name “The Transformation Project.” The applicant said that this “Organisational Change project” had 6 Workstreams, each involving a distinct aspect of the broader organisational change. The redundancy plan was part of Workstream 6. The applicant said that Workstream 3 was entitled “Portfolio Simplification and Enhancement (PSE)” and had involved a College-wide overhaul of departmental academic provisions. The applicant said that the PSE had resulted in the closing down of programmes and modules which had a direct impact on staff teaching those modules, as well as the nature of work performed by academic staff in different departments. The applicant said that the PSE formed part of the redundancy selection scoring process whereby at-risk staff would be scored according to how well “they matched the academic portfolio offering included in the portfolio revisions. This means it is highly likely that staff teaching in areas that have been closed as part of the PSE will be selected for redundancy since they will be disadvantaged in the redundancy selection scoring.” The applicant said that to date, staff and Trade Unions had not been consulted over “Workstream 3 PSE. The PSE was formally completed on the 3 May 2024. Representatives of Goldsmiths UCU Trade Union have requested repeatedly for consultation over this workstream from the beginning of the formal Collective Consultation meetings (19/03/24) up to their conclusion (22/05/24). The College has repeatedly refused to offer consultation over this set of changes which will impact staff on its own terms (changing the day-to-day work of academic departments) but which will also directly contribute to the redundancy selection process. Therefore, we hold that the Employer has breached the following parts of PMOC: Section 8: The Employer has not followed these appropriate stages where proposed changes are likely to impact substantially on the role of an individual member (or of groups) of staff, or where staff members may be at risk of redundancy. Section 14: The Employer has not provided any of this information to staff and Trade Unions at any time during the life of the PSE Workstream. Section 15/17/71: The Employer has not meaningfully consulted with the Trade Unions on the PSE Workstream as part of the redundancy plan even though this is an integral part of the redundancy selection scoring criteria. The PSE Workstream completed (03/05/24) before the Collective Consultation ended (22/05/24). Therefore, it could not have been provisional and subject to consultation since it was finalised before the statutory period of Collective Consultation came to an end.”

5)         The applicant went on to say that for the same reasons raised above “we hold that the Employer has breached the following parts of TURA: Section 8: The Employer has not meaningfully consulted with the Trade Unions on the PSE Workstream as part of the redundancy plan even though this is an integral part of the redundancy selection scoring criteria. The PSE Workstream completed (03/05/24) before the Collective Consultation ended (22/05/24). Therefore, it could not have been provisional and subject to consultation since it was finalised before the statutory period of Collective Consultation came to an end. The Employer ran individual consultation meetings with staff affected by the proposed redundancy plan. The Employer has described these meetings as ‘information giving’ meetings (April 12 2024) to Trade Union Representatives. At the majority of individual consultation meetings convened, the Employer has provided scripted information and has been unable to answer almost all questions put to them about the redundancy selection process, the redundancy selection criteria and the business case for the redundancy proposal. Answers have not been provided following meetings. Many members have been refused requests for follow up consultation meetings. Some members of staff have been unable to attend a consultation meeting because the Employer has not shown up to meetings and have not provided a replacement meeting.”

6)         The applicant then submitted that the Employer had breached parts of the PMOC as there had been no meaningful consultation with affected staff, that affected staff had not been provided an opportunity to genuinely exchange views with the Employer and that the Employer’s redundancy process had not complied current national statutory provisions and had not been compliant with the ACAS Code of Practice on handling redundancies.  Further, the Employer has failed to consult meaningfully with individual staff affected by the redundancy proposal.

7)         The applicant concluded by saying that the date of the Employer’s failure to comply with the terms of the negotiated agreement or one or more of the standard information and consultation provisions was “between the period of the Collective Consultation period: 19 March – 22 May.”

3. Summary of the Employer’s response

8)         The Employer submitted a response to the application to the CAC on 5 June 2024. The Employer said that it accepted that there was a negotiated agreement in place in the undertaking but not one that was relied upon in the application. The Employer then said that it accepted that the standard information and consultation provisions applied to the undertaking.

9)         When asked to provide a response to the allegation that the Employer had failed to comply with the agreement or the standard provisions, the Employer said that the CAC did not have jurisdiction in this matter.  The Employer said that the complaint that it had failed to consult was misconceived because the Policy on Managing Organisational Change dated 25 June 2013 was not an agreement let alone a negotiated agreement in accordance with the Regulations.  The Employer said it was not signed on employees’ behalf nor did it provide for the appointment of I&C representatives with whom the Employer “must supply information or provide that the employer must supply information to all of its employees and consult with them directly.”  This Policy was not initiated under the Regulations. The Employer said that there was never a formal request by employees under the Regulations to set up a national works council or other information and consultation arrangement. Neither was it initiated under the Regulations by the Employer.

10)       The Employer said that there was (and was at the time that PMOC was introduced) a Pre-Existing Agreement in place, namely a Recognition Agreement between Goldsmiths and the University and Colleges Union and Unison, dated 9 June 2020 and that such an agreement would have precluded the PMOC from becoming a negotiated agreement.

11)       The Employer said that even if the redundancy consultation process was unfair which it strongly denied, this did not make it an application which should be considered by the CAC. Further and in the alternative the Employer said were the PMOC to be a negotiated agreement under the Regulations the Employer would say that it had complied with it and that the CAC should dismiss the complaint.

4. Considerations

12)       The first task that the Panel faces is unpicking the rather confusing and contradictory answers provided by both the applicant and the Employer.  According to the applicant there are two negotiated agreements in place but the standard provisions also applied.  The Employer’s response states that whilst there is an agreement in place (TURA), it is not one that was made in accordance with the Regulations but then when asked if it accepted that the Standard information and consultation provisions applied to the undertaking answered “Yes”.  Further into its response to the application the Employer stated that the CAC had no jurisdiction to consider the complaint on the basis that there was no agreement established in accordance with the Regulations as there was no valid employee request made to establish a national works council or other information and consultation arrangement nor was the statutory process initiated under the Regulations by the Employer.  One or the other of these must have happened for the standard provisions to apply so it is not clear why the Employer answered the question as to whether the standard provisions applied to the undertaking in the affirmative.

13)       Regulation 22 provides that, where there is a negotiated agreement or the standard provisions apply, a complaint may be made to the CAC by a relevant applicant that an employer has failed to comply with the terms of the negotiated agreement or one or more of the standard information and consultation provisions. Here, the applicant referred to two agreements as being the negotiated agreements (TURA and PMOC). In its response, the Employer raised the question of the CAC’s jurisdiction to determine the complaint on the basis that the agreements referred to by the applicant did not amount to negotiated agreements for the purposes of the ICE Regulations.

Negotiated Agreements; Relevant Statutory Provisions

14)       The definition of a negotiated agreement is set out in Regulation 2 which states that a “negotiated agreement” means:

“(a) an agreement between the employer and the negotiating representatives reached through negotiations as provided for in regulation 14 which satisfies the requirements of regulation 16(1); or

(b) an agreement between the employer and the information and consultation representatives referred to in regulation 18(2)”

15)      Regulation 14(1) states – “In order to initiate negotiations to reach an agreement under these Regulations the employer must as soon as reasonably practicable—

(a)make arrangements, satisfying the requirements of paragraph (2), for the employees of the undertaking to elect or appoint negotiating representatives; and thereafter

(b) inform the employees in writing of the identity of the negotiating representatives; and

(c) invite the negotiating representatives to enter into negotiations to reach a negotiated agreement.

(2) The requirements for the election or appointment of negotiating representatives under paragraph (1)(a) are that—

(a) the election or appointment of the representatives must be arranged in such a way that, following their election or appointment, all employees of the undertaking are represented by one or more representatives; and

(b) all employees of the undertaking must be entitled to take part in the election or appointment of the representatives and, where there is an election, 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.

(3) The negotiations referred to in paragraph (1)(c) shall last for a period not exceeding six months commencing at the end of the period of three months beginning with the date on which the valid employee request was made or the valid employer notification was issued.”

16)       What constitutes a ‘negotiated agreement’ is set out in Regulation 16.  It must cover all employees of the undertaking and may consist either of a single agreement or of different parts (each being approved in accordance with paragraph (4)) which, taken together, cover all the employees of the undertaking. The single agreement or each part must—

“(a) set out the circumstances in which the employer must inform and consult the employees to which it relates;

(b) be in writing;

(c) be dated;

(d) be approved in accordance with paragraphs (3) to (5);

(e) be signed by or on behalf of the employer; and

(f) either—

(i) provide for the appointment or election of information and consultation representatives to whom the employer must provide the information and whom the employer must consult in the circumstances referred to in sub-paragraph (a); or

(ii) provide that the employer must provide information directly to the employees to which it relates and consult those employees directly in the circumstances referred to in sub-paragraph (a)”.

The applicability of the Standard Information and Consultation Provisions; Relevant Statutory Provisions

17)       Regulation 18(1) of the ICE Regulations provides:-

“(a)     Where the employer is under a duty, following the making of a valid employee request or issue of a valid employer notification, to initiate negotiations in accordance with regulation 14 but does not do so, the standard information and consultation provisions shall apply from the date-

(i)  which is six months from the date on which the valid employee request was made or the valid employer notification was issued, or

(ii) information and consultation representatives are elected under regulation 19, whichever is sooner.”

18)       Regulation 2 defines an “employee request” as ‘a request by employees under regulation 7 for the employer to initiate negotiations to reach an agreement under these Regulations; an ‘employer notification’ is defined as ‘a notification by an employer under regulation 11 that he wishes to initiate negotiations to reach an agreement under these Regulations.

19)       Regulations 7 and 11 set out the respective requirements for an ‘employee request’ and an ‘employer notification’.

5. Decision

20)       The crucial element in Regulation 14 is that the start date for the negotiations under this Regulation is either the date of the ‘valid employee request’ or the date of the ‘valid employer notification’.  One or other of these, either a valid employee request or a valid employer notification, must be made for any subsequent agreement to be an agreement made in accordance with the Regulations. Here we have not seen any evidence that a valid employee request or a valid employer notification was made that would provide a gateway into the Regulations. The Panel is therefore of the view that the agreements put forward by the applicant are not agreements that conform with the Regulations.

21)       Having reached the conclusion that the Regulations have not been triggered, the Panel has not looked at the question as to whether or not either of the agreements would satisfy the provisions of Regulation 16.  However, were it necessary to consider whether the PMOC or TURA agreements satisfy the conditions of Regulation 16, the conclusion of the Panel would have been that they did not:-

(a) In respect of PMOC:- a. It has not been approved in accordance with paragraphs 16(3) to (5) (contrary to Regulation 16(d))

b. It is unsigned (contrary to Regulation16(e)).

c. It does not provide for the appointment or election of information and consultation representatives, nor does it provide that the employer must provide information directly to the employees to which it relates (contrary of Regulation 16(f)).

(b) In respect of TURA:-

a. Does not appear to have been approved in accordance with paragraphs 16(3) to (5) (contrary to Regulation16(d))

b. Does not provide for the appointment or election of information and consultation representatives nor does it provide that the employer must provide information directly to the employees to which it relates (contrary to Regulation 16(f)).

22)       For the reasons provided above, the Panel’s decision is that the agreements are not agreements made in accordance with the Regulations and therefore the CAC has no jurisdiction to determine the complaint.  It follows therefore that the application under Regulation 22 of the Regulations is not accepted.

Panel

Ms Laura Prince, K.C., Panel Chair

Mr Martin Kirke

Mr Michael Clancy

25 June 2024

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1. In an email dated 29 May 2024 the applicant confirmed he was a representative of the UCU branch. ↩