University of London v Morrissey

Under Regulation 14 of the Information and Consultation of Employees Regulations 2004, an employer has flexibility to devise arrangements for electing or appointing negotiating representatives. That flexibility is not unlimited. The arrangements must secure the effective representation of all employees and meaningful participation by them in the election or appointment process. Employees need not approve the representatives unanimously, but formal voting alone may be insufficient where the choice has been confined to candidates selected by the employer and a minority of recognised trade unions. Compliance is a fact-sensitive question for the Central Arbitration Committee, applying industrial common sense, practice and experience.

Following a request by 162 of the University’s 1,206 employees, the University was required to initiate negotiations under the Information and Consultation of Employees Regulations 2004. It asked two recognised trade unions, representing approximately 25 per cent of the workforce, to nominate four candidates. All employees were then invited to vote yes or no on those candidates.

The Central Arbitration Committee held that the arrangements failed to comply with Regulation 14(2)(a) and (b). The University appealed to the Employment Appeal Tribunal on points of law, arguing that the Regulations left the process to its discretion and that the subsequent vote satisfied the statutory requirements.

1. The appeal was dismissed. The CAC was entitled to conclude that the arrangements did not comply with Regulation 14.
2. The purpose of the Information and Consultation of Employees Regulations 2004, read in light of Directive 2002/14/EC, is to engage the workforce as a whole and ensure effective practical arrangements for information and consultation. Regulation 14 deliberately allows flexibility and bespoke arrangements, but the process is not entirely at large. It must be capable of producing effective arrangements.
3. Regulation 14(1)(a) requires arrangements to be made for the employees to elect or appoint representatives. The wording indicates that employees are to be in the driving seat, subject to the practical demands of the particular undertaking.
4. The requirement in Regulation 14(2)(b) that all employees be entitled to take part extends beyond merely casting a vote. It requires meaningful participation in the process of election or appointment, with an opportunity for all employees to participate so far as reasonably achievable.
5. Under Regulation 14(2)(a), representatives must represent all employees and must have meaningful authority judged in context. They need not carry the confidence of all employees. A process limited to candidates drawn from a small minority of the workforce may fail to provide effective representation, even where the whole workforce later has an opportunity to approve those candidates.
6. These were questions of fact and degree for the CAC. Its conclusions were not perverse and were conclusions it was entitled to reach. The distinctions it drew from Moray Council v Stewart were appropriate on the facts.

• Central Arbitration Committee: On 3 August 2015, upheld the complaint that the University had failed to comply with Regulation 14(2) of the Information and Consultation of Employees Regulations 2004.
• Employment Appeal Tribunal: Dismissed the University’s appeal on 15 January 2016.