What is an employee representative?

Employee representatives may be chosen by their fellow employees or appointed by management. The roles of employee representatives vary but most:

• receive information from and give information to management
• pass on information more widely within the workforce
• are consulted by management over certain workplace matters

Employee representatives operate mainly in businesses that:

• do not recognise a trade union for collective bargaining purposes
• recognise a trade union in respect of some, but not all, of their employees

Why consult employee representatives?

Most of the legal duties to consult employee representatives arise in one-off situations such as large-scale redundancies or business transfers. Therefore, if you do not recognise a trade union, you may not have employee representatives in place at times when those one-off events are not occurring.

However, some businesses have employee representatives in place on a permanent and ongoing basis so that they:

• will not have to arrange for employee representatives to be elected when a legal duty arises
• can inform and consult their workforce about business performance or workplace issues
• can build trust through better workforce communications
• can improve staff engagement and productivity, which in turn can help prevent disputes

When to consult employee representatives

You must consult employee representatives:

• in collective redundancy situations - see employee representatives during collective redundancy situations
• where the employer proposes to dismiss and re-engage 20 or more employees as a result of contract variation
• when employees are transferred from one employer to another - see employee representatives during business transfers
• on certain changes to occupational and personal pension schemes - see pension representatives

In these situations, if you don't already have employee representatives, you will have to arrange for them to be elected - although you don't need to 'force' employees to elect them.

You may also need to consult employee representatives on workforce agreements concerning:

• maternity and parental leave schemes
• the use of successive fixed-term contracts
• working time, eg for daily and weekly rest periods, and rest breaks during the working day

See representation for workforce agreements.

Ongoing consultation with employee representatives

You may have to set up an ongoing information and consultation arrangement with elected employee representatives. This might be not only on a national level but also across the European Union.

However, you only have to do this if the relevant employees make a valid request for such an arrangement.

Read more on ongoing information and consultation arrangements.

Note that you also have a duty to carry out ongoing consultation with employees or their representatives on health and safety matters - see ongoing consultation on health and safety matters.

Voluntary ongoing consultation with employee representatives

If you don't have to inform and consult, you can still come to a voluntary agreement with employee representatives on ways in which they can:

• make employees' views known to management
• help strengthen both management's and employees' understanding of workplace issues and other matters affecting the business
• help create an atmosphere of mutual trust between employees and management and therefore improve workplace relations

Examples of voluntary arrangements with employee representatives include:

• individual informal discussions or formal group meetings
• works councils, eg joint consultative committees and joint working parties where representatives of employers consult employee representatives for their views before making decisions - this could be through regular discussion of matters of mutual concern or by meeting to consider and resolve specific business issues

Representation of individual employees

In non-unionised settings, a worker may want to choose an employee representative to act as their companion because that person may be more familiar with the tasks associated with the role of spokesperson.

Alternatively, they may choose a companion who is either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by their union as having experience of or as having received training in, acting as a worker's companion at disciplinary or grievance hearings. The union official can be from any trade union, regardless of whether that union is recognised by you.

Read more on disciplinary procedures, hearings, and appeals, and handling grievances.

Read the Labour Relations Agency's (LRA's) Code of Practice on Disciplinary and Grievance Procedures.

If a collective redundancy situation arises, you have a legal duty to consult elected employee representatives where:

• you don't recognise an independent trade union
• you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees you plan to make redundant don't belong to that group

You must also consult union representatives where you recognise an independent trade union and where at least one of the employees you plan to make redundant is part of the bargaining group for which the union is recognised.

What is a collective redundancy situation?

A collective redundancy situation is where you plan to make 20 or more employees redundant at one establishment within a 90-day period.

For more information on redundancies in general, see redundancy: the options.

Which employee representatives you should consult with

It is your responsibility to ensure that consultation is offered to appropriate employee representatives.

In some cases, you may need to arrange elections to select employees to carry out this task.

However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.

Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.

If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, where redundancies are to take place among sales staff, you could not inform and consult a committee of managers set up to consider the operation of a staff canteen.

However, it would be appropriate for you to inform and consult:

• representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• a pre-existing committee of employees, such as a works council or staff forum, that you regularly engage with more generally about the business's financial position and/or personnel matters

Arranging the election of employee representatives

If the employee representatives are to be elected specifically for the redundancy consultation, certain election conditions must be met.

When arranging to elect employee representatives, you must:

1. make such arrangements as are reasonably practical to ensure that the election is fair
2. determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
3. determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
4. before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
5. ensure that the candidates for election as employee representatives are affected employees on the date of the election
6. ensure that no affected employee is unreasonably excluded from standing for election
7. ensure that all affected employees on the date of the election are entitled to vote for employee representatives
8. ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
9. hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted

If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.

The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:

• the employees have enough time to nominate and consider candidates
• the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
• the arrangements adequately cover all the classes of employees who may be affected by the redundancy situation and provide a reasonable balance between the interests of the different groups
• you have any normal custom and practice in your business for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to

Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.

Rights of employee representatives

Employee representatives in redundancy situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.

See employment-protection rights for employee representatives.

If you are involved in a business transfer or service provision change - either because you are transferring employees to another employer or because you are receiving employees from another employer - you are responsible for informing and consulting the employees concerned.

You must consult elected employee representatives during such a transfer if:

• you don't recognise an independent trade union
• you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees affected by the transfer don't belong to that group

You must also consult union representatives where an independent trade union is recognised and where at least one employee affected by the transfer belongs to the bargaining group for which the union is recognised.

For more information on business transfers in general, see responsibilities to employees if you buy or sell a business.

Which employee representatives you should consult with

It is your responsibility to ensure that consultation is offered to appropriate employee representatives.

In some cases, you may need to arrange elections to select employees to carry out this task. However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.

Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.

For more information on business transfers and the obligation to inform and consult when employees are being transferred to a new employer, see responsibilities to employees if you buy or sell a business.

If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, if the affected employees are all located at one site, it would clearly not be enough to inform and consult representatives based solely at another site - even if they are part of the same business.

However, it would be appropriate for you to inform and consult:

• representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about the business's financial position and/or personnel matters

Arranging the election of employee representatives

If the employee representatives are to be specially elected, certain election conditions must be met.

When arranging to elect employee representatives, you must:

1. make such arrangements as are reasonably practical to ensure that the election is fair
2. determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
3. determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
4. before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
5. ensure that the candidates for election as employee representatives are affected employees on the date of the election
6. ensure that no affected employee is unreasonably excluded from standing for election
7. ensure that all affected employees on the date of the election are entitled to vote for employee representatives
8. ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
9. hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted

If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.

The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:

• the employees have enough time to nominate and consider candidates
• the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
• the arrangements adequately cover all the classes of employees who may be affected by the transfer and provide a reasonable balance between the interests of the different groups
• you have any normal custom and practice for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to

Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.

Right of employee representatives

Employee representatives in transfer situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.

If you operate an occupational pension scheme (OPS) or make direct payments to a personal pension scheme (PPS), you may have to consult employees and/or their representatives if you wish to change certain scheme conditions or arrangements.

Consulting representatives on changes to an OPS or PPS

You have a legal duty to consult with representatives if certain changes are proposed to any OPS you offer to your staff.

Such changes might be:

• an increase in the normal pension age
• closure of the OPS to some or all new members
• increasing member contributions in some or all cases
• stopping future accruals in the OPS to some or all members

If you make direct payments to a PPS, you must consult representatives where you propose to:

• stop making contributions for some or all members
• reduce your contribution for some or all members
• require some or all members to increase their contributions

You must consult with the representatives of as many affected members as is reasonably practicable.

Subject to that requirement, you could choose to work with one or more of the following:

• previously elected pensions representatives
• representatives of a recognised independent trade union - read more on recognising and derecognising a trade union
• representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about business and/or personnel issues

You could also choose to consult directly with employees if provision is made for this in the terms of a pre-existing committee of employees or an agreement you negotiate with any of the types of representative listed.

If you don't already have any such representatives in place, you should arrange for them to be elected.

Election of representatives

The legislation sets out a number of other requirements for election eg

1. The requirements of this paragraph are that-

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

(b) the employer must determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of active members and the interests of prospective members;

(c) the employer must determine whether the active and prospective members should be represented by representatives of all such members or by representatives of particular descriptions of such members;

(d) before the election, the employer must determine the term of office as representative of active and prospective members;

(e) the candidates for election must be active or prospective members of the scheme on the date of the election;

(f) no active or prospective member may unreasonably be excluded from standing for election;

(g) all active or prospective members on the date of the election are entitled to vote for member representatives;

(h) the members entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be classes of representative for particular descriptions of member, may vote for as many candidates as there are representatives to be elected to represent their particular description of member;

(i) the election is conducted so as to secure that-

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

(ii) the votes given at the election are accurately counted.

2. Where, after an election of representatives satisfying the requirements of paragraph (1) has been held-

(a) one of those elected ceases to act as a representative, and

(b) the active or prospective members (or any description of them) are no longer represented, those members must elect another representative by an election satisfying the requirements of paragraph (1)(a), (e), (f), and (i)

3. The relevant employer must from time to time review the number of representatives determined under paragraph (1)(b) and the number of representatives elected must be adjusted accordingly (whether by members electing one or more other representatives by an election satisfying the requirements of paragraph (1)(a), (e), (f) and (i), by not holding an election under paragraph (2) or otherwise).

You must ensure that:

• candidates for the election are prospective or active members of the scheme on the date of the election
• the number of pension representatives is proportionate to the number of affected prospective and active pension scheme members employed by you, eg one representative per 50 affected or prospective members

Note that if some of the affected members are not represented by a representative, you must consult with those members individually.

Rights of pension representatives

Pension representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.

See employment-protection rights for employee representatives.

The law allows for you to negotiate workforce agreements on certain matters.

A workforce agreement is an agreement between an employer and its employees whose terms and conditions of employment are not covered by a collective agreement. A collective agreement is made between the employer and an independent trade union recognised by that employer.

Workforce agreements on working hours

The Working Time Regulations (Northern Ireland) 2016 set maximum working hours, minimum rest breaks and minimum paid annual leave.

You can agree by voluntary agreement with your workforce to vary certain aspects of the regulations, such as rights to rest periods and breaks.

The 48-hour week working-time limit cannot be varied by workforce agreement though individuals can choose to agree to work beyond the 48-hour limit. This agreement is generally referred to as an opt-out and must be in writing and signed by each individual worker affected.

Read more on hours, rest breaks and the working week.

Workforce agreements on parental leave schemes

Employees with young or disabled children are entitled to take unpaid time off to look after those children.

The law sets out certain minimum conditions for parental leave, but you can agree - via a workforce agreement - your own parental leave scheme with your employees.

Read more on agreeing a workplace parental leave scheme.

Workforce agreements on the use of successive fixed-term contracts

If a fixed-term employee has their contract renewed (or is re-engaged on a new fixed-term contract) when they already have a period of four or more years of continuous employment, the renewal or new contract automatically becomes a permanent contract.

However, employers and representatives of employees may agree - via a workforce agreement - objective reasons for fixed-term contracts renewed beyond four years to remain fixed term.

Any agreement may also limit the use of successive fixed-term contracts by applying one or more of the following:

• a limit on the number of successive fixed-term contracts
• a limit on the total duration of successive fixed-term contracts
• a list of permissible objective reasons justifying renewals of fixed-term contracts

For example, representatives of employees in an industry where it is traditional for employees to work on fixed-term contracts may agree with the employer that the nature of the work is an objective reason for continuing to renew fixed-term contracts beyond the four-year limit.

Read more on understanding fixed-term employment contracts.

Electing representatives for workforce agreements

If there are no pre-existing representatives in place, you must arrange to elect employee representatives to negotiate the workforce agreement with you.

To do this, you should:

• decide on the number of representatives to be elected
• ensure candidates are members of the workforce on the date of the election or, in the case of a group, a member of the group to whom the agreement is to apply
• allow each employee a vote for each representative to be elected to represent them
• ensure as far as is reasonably practicable that they are elected by secret ballot
• ensure that the votes are counted fairly and accurately

Rights of representatives for workforce agreements

Such employee representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.

Depending on the size and geographical scope of your business, you may have to set up an ongoing information and consultation (I&C) arrangement with your employees.

Ongoing I&C on a national level - the Information and Consultation of Employees (ICE) Regulations (Northern Ireland) 2005

As long as they make a valid request, employees of organisations with 50 or more employees have the right to negotiate an I&C agreement with their employer.

If you receive a valid employee request, you must make arrangements for employees to elect or appoint negotiating representatives. They will negotiate with you to reach an I&C agreement.

As part of the I&C agreement, you may decide to inform and consult your employees through I&C representatives. I&C representatives do not necessarily have to be the same individuals as the negotiating representatives.

If you do want I&C representatives, you should agree with the negotiating representatives:

• how many I&C representatives there will be
• who they will represent
• how they may be replaced
• how long they will serve for
• how they will be appointed or elected
• whether anyone other than an employee may be an I&C representative

Read more on how to inform and consult your employees.

Ongoing I&C on a transnational level - European works councils

European works councils (EWCs) are a particular type of works council used by larger companies with sites in more than one European Union (EU) member state, to inform and consult their employees about transnational issues.

Read more on European Works Councils.

Rights of employee representatives

Employee representatives elected or appointed under the ICE Regulations, or as Special Negotiating Body (SNB) or EWC representatives, have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.

If you recognise an independent trade union for collective bargaining purposes, it is entitled to appoint union safety representatives at the workplace.

Read Health and Safety Executive for Northern Ireland (HSENI) guidance on trade union representation relating to safety matters.

However, if you have employees who are not represented by trade union safety representatives, you must consult the employees directly and in good time about health and safety issues.

Alternatively, you must consult any employee representatives - called representatives of employee safety (RoES) - who are elected for this purpose.

Download the HSE guide to consulting employees on health and safety (PDF, 137K).

Employment-protection rights for RoES

A RoES has the right:

• not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as a RoES - any dismissal in these circumstances is automatically unfair
• to a reasonable amount of paid time off during working hours to perform their functions or undergo any training - this right also applies to a candidate standing for election as a RoES
• to receive the necessary training as is reasonable under the circumstances - you must pay any reasonable costs for such training, including travel and subsistence costs

You must also provide a RoES with the facilities and assistance they may reasonably require for carrying out their duties.

What facilities and assistance are appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.

Tribunal claims for a RoES if their rights are infringed

A RoES (or candidate in an election to become such a representative) who is dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.

If the tribunal/arbitrator finds that you:

• dismissed the employee unfairly, an order of reinstatement or re-engagement may be made or alternatively, an award of compensation
• subjected the employee to a detriment, an order to award compensation may be made 

A RoES (or candidate in an election to become such a representative) may also lodge a complaint with the Industrial Tribunal if you infringed their right to reasonable paid time off.

If the tribunal/arbitrator finds that you:

• unreasonably refused a RoES or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay they would have been entitled to if you hadn't refused them that time off
• failed to pay a RoES or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made

A tribunal/arbitrator will not normally consider any such claim unless it is made within three months of the date when the alleged infringement occurred.

Certain employment-protection rights apply to employee representatives who have been elected for the purposes of information and consultation:

• during a collective redundancy or business transfer situation - see employee representatives during collective redundancy situations and employee representatives during business transfers
• as representatives of employee safety - see ongoing consultation on health and safety matters
• on proposed changes to occupational and personal pension schemes operated by the employer - see pension representatives
• under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• as part of a European works council or special negotiating body - see the page in this guide on ongoing information and consultation arrangements

Employment protection rights

These rights are as follows:

• The right to reasonable paid time off to carry out their duties. The law does not specify the amount of time off that it is reasonable to allow since this will vary according to the circumstances. You should pay the representative at the appropriate hourly rate for the period of absence from work. You can calculate this by dividing the amount of a week's pay by the number of normal working hours in the week.
• The right not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as an employee representative - any dismissal in these circumstances is automatically unfair.

In addition, representatives of employee safety and those employee representatives dealing with collective redundancies and business transfers have rights to time off to be trained in their duties. They are also entitled to access office equipment and other workplace facilities to assist them in undertaking their roles.

Employee representatives elected for the purposes of negotiating a workforce agreement have the right not to be subjected to a detriment or be dismissed because of their activities or proposed activities - see representation for workforce agreements.

Such representatives do not have the statutory right to paid time off to carry out their duties. However, it's good practice to give them this right anyway.

Note that these employment-protection rights also apply - as appropriate - to those who are candidates in an election to become an employee representative.

Offering discretionary rights to employee representatives

You should consider allowing employee representatives access to office equipment or other workplace facilities to carry out their work effectively.

What is appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.

You should also consider giving employee representatives paid time off to be trained in their representative roles.

Other representatives - eg those who are consulted voluntarily by employers - have no statutory rights, though it may be in your interest to allow such representatives access to facilities and the time off to perform their duties.

Read Labour Relations Agency (LRA) guidance on non-union representation in the workplace.

Tribunal claims for employee representatives if their rights are infringed

Employee representatives - or candidates in an election to become a representative - who are dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.

A tribunal/arbitrator will not normally consider such a claim unless it is made within three months of the date when the alleged infringement occurred.

If the tribunal/arbitrator finds that you:

• dismissed the employee unfairly, an order of reinstatement or re-engagement may be made, or alternatively, an award of compensation
• unreasonably refused a representative or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay to which they would have been entitled to if you had not refused the time off
• failed to pay a representative or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made

One of the main benefits of working with employee representatives is that it can create a sense of trust between management and employees. If you can do this, it will improve business performance and can help prevent disputes.

The arrangements you use will depend on the size of your business and the type of consultation. However, it's important to aim for a balanced relationship and make roles clear. For example:

• Set out your expectations of the representatives' day-to-day role, identifying which issues are within the scope of consultation.
• Works/staff councils should have a constitution including their terms of reference and procedure for electing representatives. You should commit time and resources to enable it to operate, such as meeting or training facilities.

It's also important to meet your legal obligations and enable individual representatives to do their job well. Read more on employment-protection rights for employee representatives.

What is an employee representative?

Employee representatives may be chosen by their fellow employees or appointed by management. The roles of employee representatives vary but most:

• receive information from and give information to management
• pass on information more widely within the workforce
• are consulted by management over certain workplace matters

Employee representatives operate mainly in businesses that:

• do not recognise a trade union for collective bargaining purposes
• recognise a trade union in respect of some, but not all, of their employees

Why consult employee representatives?

Most of the legal duties to consult employee representatives arise in one-off situations such as large-scale redundancies or business transfers. Therefore, if you do not recognise a trade union, you may not have employee representatives in place at times when those one-off events are not occurring.

However, some businesses have employee representatives in place on a permanent and ongoing basis so that they:

• will not have to arrange for employee representatives to be elected when a legal duty arises
• can inform and consult their workforce about business performance or workplace issues
• can build trust through better workforce communications
• can improve staff engagement and productivity, which in turn can help prevent disputes

When to consult employee representatives

You must consult employee representatives:

• in collective redundancy situations - see employee representatives during collective redundancy situations
• where the employer proposes to dismiss and re-engage 20 or more employees as a result of contract variation
• when employees are transferred from one employer to another - see employee representatives during business transfers
• on certain changes to occupational and personal pension schemes - see pension representatives

In these situations, if you don't already have employee representatives, you will have to arrange for them to be elected - although you don't need to 'force' employees to elect them.

You may also need to consult employee representatives on workforce agreements concerning:

• maternity and parental leave schemes
• the use of successive fixed-term contracts
• working time, eg for daily and weekly rest periods, and rest breaks during the working day

See representation for workforce agreements.

Ongoing consultation with employee representatives

You may have to set up an ongoing information and consultation arrangement with elected employee representatives. This might be not only on a national level but also across the European Union.

However, you only have to do this if the relevant employees make a valid request for such an arrangement.

Read more on ongoing information and consultation arrangements.

Note that you also have a duty to carry out ongoing consultation with employees or their representatives on health and safety matters - see ongoing consultation on health and safety matters.

Voluntary ongoing consultation with employee representatives

If you don't have to inform and consult, you can still come to a voluntary agreement with employee representatives on ways in which they can:

• make employees' views known to management
• help strengthen both management's and employees' understanding of workplace issues and other matters affecting the business
• help create an atmosphere of mutual trust between employees and management and therefore improve workplace relations

Examples of voluntary arrangements with employee representatives include:

• individual informal discussions or formal group meetings
• works councils, eg joint consultative committees and joint working parties where representatives of employers consult employee representatives for their views before making decisions - this could be through regular discussion of matters of mutual concern or by meeting to consider and resolve specific business issues

Representation of individual employees

In non-unionised settings, a worker may want to choose an employee representative to act as their companion because that person may be more familiar with the tasks associated with the role of spokesperson.

Alternatively, they may choose a companion who is either a full-time official employed by a union or a lay union official who has been reasonably certified in writing by their union as having experience of or as having received training in, acting as a worker's companion at disciplinary or grievance hearings. The union official can be from any trade union, regardless of whether that union is recognised by you.

Read more on disciplinary procedures, hearings, and appeals, and handling grievances.

Read the Labour Relations Agency's (LRA's) Code of Practice on Disciplinary and Grievance Procedures.

If a collective redundancy situation arises, you have a legal duty to consult elected employee representatives where:

• you don't recognise an independent trade union
• you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees you plan to make redundant don't belong to that group

You must also consult union representatives where you recognise an independent trade union and where at least one of the employees you plan to make redundant is part of the bargaining group for which the union is recognised.

What is a collective redundancy situation?

A collective redundancy situation is where you plan to make 20 or more employees redundant at one establishment within a 90-day period.

For more information on redundancies in general, see redundancy: the options.

Which employee representatives you should consult with

It is your responsibility to ensure that consultation is offered to appropriate employee representatives.

In some cases, you may need to arrange elections to select employees to carry out this task.

However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.

Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.

If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, where redundancies are to take place among sales staff, you could not inform and consult a committee of managers set up to consider the operation of a staff canteen.

However, it would be appropriate for you to inform and consult:

• representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• a pre-existing committee of employees, such as a works council or staff forum, that you regularly engage with more generally about the business's financial position and/or personnel matters

Arranging the election of employee representatives

If the employee representatives are to be elected specifically for the redundancy consultation, certain election conditions must be met.

When arranging to elect employee representatives, you must:

1. make such arrangements as are reasonably practical to ensure that the election is fair
2. determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
3. determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
4. before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
5. ensure that the candidates for election as employee representatives are affected employees on the date of the election
6. ensure that no affected employee is unreasonably excluded from standing for election
7. ensure that all affected employees on the date of the election are entitled to vote for employee representatives
8. ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
9. hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted

If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.

The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:

• the employees have enough time to nominate and consider candidates
• the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
• the arrangements adequately cover all the classes of employees who may be affected by the redundancy situation and provide a reasonable balance between the interests of the different groups
• you have any normal custom and practice in your business for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to

Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.

Rights of employee representatives

Employee representatives in redundancy situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.

See employment-protection rights for employee representatives.

If you are involved in a business transfer or service provision change - either because you are transferring employees to another employer or because you are receiving employees from another employer - you are responsible for informing and consulting the employees concerned.

You must consult elected employee representatives during such a transfer if:

• you don't recognise an independent trade union
• you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees affected by the transfer don't belong to that group

You must also consult union representatives where an independent trade union is recognised and where at least one employee affected by the transfer belongs to the bargaining group for which the union is recognised.

For more information on business transfers in general, see responsibilities to employees if you buy or sell a business.

Which employee representatives you should consult with

It is your responsibility to ensure that consultation is offered to appropriate employee representatives.

In some cases, you may need to arrange elections to select employees to carry out this task. However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.

Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.

For more information on business transfers and the obligation to inform and consult when employees are being transferred to a new employer, see responsibilities to employees if you buy or sell a business.

If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, if the affected employees are all located at one site, it would clearly not be enough to inform and consult representatives based solely at another site - even if they are part of the same business.

However, it would be appropriate for you to inform and consult:

• representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about the business's financial position and/or personnel matters

Arranging the election of employee representatives

If the employee representatives are to be specially elected, certain election conditions must be met.

When arranging to elect employee representatives, you must:

1. make such arrangements as are reasonably practical to ensure that the election is fair
2. determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
3. determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
4. before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
5. ensure that the candidates for election as employee representatives are affected employees on the date of the election
6. ensure that no affected employee is unreasonably excluded from standing for election
7. ensure that all affected employees on the date of the election are entitled to vote for employee representatives
8. ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
9. hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted

If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.

The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:

• the employees have enough time to nominate and consider candidates
• the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
• the arrangements adequately cover all the classes of employees who may be affected by the transfer and provide a reasonable balance between the interests of the different groups
• you have any normal custom and practice for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to

Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.

Right of employee representatives

Employee representatives in transfer situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.

If you operate an occupational pension scheme (OPS) or make direct payments to a personal pension scheme (PPS), you may have to consult employees and/or their representatives if you wish to change certain scheme conditions or arrangements.

Consulting representatives on changes to an OPS or PPS

You have a legal duty to consult with representatives if certain changes are proposed to any OPS you offer to your staff.

Such changes might be:

• an increase in the normal pension age
• closure of the OPS to some or all new members
• increasing member contributions in some or all cases
• stopping future accruals in the OPS to some or all members

If you make direct payments to a PPS, you must consult representatives where you propose to:

• stop making contributions for some or all members
• reduce your contribution for some or all members
• require some or all members to increase their contributions

You must consult with the representatives of as many affected members as is reasonably practicable.

Subject to that requirement, you could choose to work with one or more of the following:

• previously elected pensions representatives
• representatives of a recognised independent trade union - read more on recognising and derecognising a trade union
• representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about business and/or personnel issues

You could also choose to consult directly with employees if provision is made for this in the terms of a pre-existing committee of employees or an agreement you negotiate with any of the types of representative listed.

If you don't already have any such representatives in place, you should arrange for them to be elected.

Election of representatives

The legislation sets out a number of other requirements for election eg

1. The requirements of this paragraph are that-

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

(b) the employer must determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of active members and the interests of prospective members;

(c) the employer must determine whether the active and prospective members should be represented by representatives of all such members or by representatives of particular descriptions of such members;

(d) before the election, the employer must determine the term of office as representative of active and prospective members;

(e) the candidates for election must be active or prospective members of the scheme on the date of the election;

(f) no active or prospective member may unreasonably be excluded from standing for election;

(g) all active or prospective members on the date of the election are entitled to vote for member representatives;

(h) the members entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be classes of representative for particular descriptions of member, may vote for as many candidates as there are representatives to be elected to represent their particular description of member;

(i) the election is conducted so as to secure that-

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

(ii) the votes given at the election are accurately counted.

2. Where, after an election of representatives satisfying the requirements of paragraph (1) has been held-

(a) one of those elected ceases to act as a representative, and

(b) the active or prospective members (or any description of them) are no longer represented, those members must elect another representative by an election satisfying the requirements of paragraph (1)(a), (e), (f), and (i)

3. The relevant employer must from time to time review the number of representatives determined under paragraph (1)(b) and the number of representatives elected must be adjusted accordingly (whether by members electing one or more other representatives by an election satisfying the requirements of paragraph (1)(a), (e), (f) and (i), by not holding an election under paragraph (2) or otherwise).

You must ensure that:

• candidates for the election are prospective or active members of the scheme on the date of the election
• the number of pension representatives is proportionate to the number of affected prospective and active pension scheme members employed by you, eg one representative per 50 affected or prospective members

Note that if some of the affected members are not represented by a representative, you must consult with those members individually.

Rights of pension representatives

Pension representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.

See employment-protection rights for employee representatives.

The law allows for you to negotiate workforce agreements on certain matters.

A workforce agreement is an agreement between an employer and its employees whose terms and conditions of employment are not covered by a collective agreement. A collective agreement is made between the employer and an independent trade union recognised by that employer.

Workforce agreements on working hours

The Working Time Regulations (Northern Ireland) 2016 set maximum working hours, minimum rest breaks and minimum paid annual leave.

You can agree by voluntary agreement with your workforce to vary certain aspects of the regulations, such as rights to rest periods and breaks.

The 48-hour week working-time limit cannot be varied by workforce agreement though individuals can choose to agree to work beyond the 48-hour limit. This agreement is generally referred to as an opt-out and must be in writing and signed by each individual worker affected.

Read more on hours, rest breaks and the working week.

Workforce agreements on parental leave schemes

Employees with young or disabled children are entitled to take unpaid time off to look after those children.

The law sets out certain minimum conditions for parental leave, but you can agree - via a workforce agreement - your own parental leave scheme with your employees.

Read more on agreeing a workplace parental leave scheme.

Workforce agreements on the use of successive fixed-term contracts

If a fixed-term employee has their contract renewed (or is re-engaged on a new fixed-term contract) when they already have a period of four or more years of continuous employment, the renewal or new contract automatically becomes a permanent contract.

However, employers and representatives of employees may agree - via a workforce agreement - objective reasons for fixed-term contracts renewed beyond four years to remain fixed term.

Any agreement may also limit the use of successive fixed-term contracts by applying one or more of the following:

• a limit on the number of successive fixed-term contracts
• a limit on the total duration of successive fixed-term contracts
• a list of permissible objective reasons justifying renewals of fixed-term contracts

For example, representatives of employees in an industry where it is traditional for employees to work on fixed-term contracts may agree with the employer that the nature of the work is an objective reason for continuing to renew fixed-term contracts beyond the four-year limit.

Read more on understanding fixed-term employment contracts.

Electing representatives for workforce agreements

If there are no pre-existing representatives in place, you must arrange to elect employee representatives to negotiate the workforce agreement with you.

To do this, you should:

• decide on the number of representatives to be elected
• ensure candidates are members of the workforce on the date of the election or, in the case of a group, a member of the group to whom the agreement is to apply
• allow each employee a vote for each representative to be elected to represent them
• ensure as far as is reasonably practicable that they are elected by secret ballot
• ensure that the votes are counted fairly and accurately

Rights of representatives for workforce agreements

Such employee representatives have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.

Depending on the size and geographical scope of your business, you may have to set up an ongoing information and consultation (I&C) arrangement with your employees.

Ongoing I&C on a national level - the Information and Consultation of Employees (ICE) Regulations (Northern Ireland) 2005

As long as they make a valid request, employees of organisations with 50 or more employees have the right to negotiate an I&C agreement with their employer.

If you receive a valid employee request, you must make arrangements for employees to elect or appoint negotiating representatives. They will negotiate with you to reach an I&C agreement.

As part of the I&C agreement, you may decide to inform and consult your employees through I&C representatives. I&C representatives do not necessarily have to be the same individuals as the negotiating representatives.

If you do want I&C representatives, you should agree with the negotiating representatives:

• how many I&C representatives there will be
• who they will represent
• how they may be replaced
• how long they will serve for
• how they will be appointed or elected
• whether anyone other than an employee may be an I&C representative

Read more on how to inform and consult your employees.

Ongoing I&C on a transnational level - European works councils

European works councils (EWCs) are a particular type of works council used by larger companies with sites in more than one European Union (EU) member state, to inform and consult their employees about transnational issues.

Read more on European Works Councils.

Rights of employee representatives

Employee representatives elected or appointed under the ICE Regulations, or as Special Negotiating Body (SNB) or EWC representatives, have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.

If you recognise an independent trade union for collective bargaining purposes, it is entitled to appoint union safety representatives at the workplace.

Read Health and Safety Executive for Northern Ireland (HSENI) guidance on trade union representation relating to safety matters.

However, if you have employees who are not represented by trade union safety representatives, you must consult the employees directly and in good time about health and safety issues.

Alternatively, you must consult any employee representatives - called representatives of employee safety (RoES) - who are elected for this purpose.

Download the HSE guide to consulting employees on health and safety (PDF, 137K).

Employment-protection rights for RoES

A RoES has the right:

• not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as a RoES - any dismissal in these circumstances is automatically unfair
• to a reasonable amount of paid time off during working hours to perform their functions or undergo any training - this right also applies to a candidate standing for election as a RoES
• to receive the necessary training as is reasonable under the circumstances - you must pay any reasonable costs for such training, including travel and subsistence costs

You must also provide a RoES with the facilities and assistance they may reasonably require for carrying out their duties.

What facilities and assistance are appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.

Tribunal claims for a RoES if their rights are infringed

A RoES (or candidate in an election to become such a representative) who is dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.

If the tribunal/arbitrator finds that you:

• dismissed the employee unfairly, an order of reinstatement or re-engagement may be made or alternatively, an award of compensation
• subjected the employee to a detriment, an order to award compensation may be made 

A RoES (or candidate in an election to become such a representative) may also lodge a complaint with the Industrial Tribunal if you infringed their right to reasonable paid time off.

If the tribunal/arbitrator finds that you:

• unreasonably refused a RoES or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay they would have been entitled to if you hadn't refused them that time off
• failed to pay a RoES or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made

A tribunal/arbitrator will not normally consider any such claim unless it is made within three months of the date when the alleged infringement occurred.

Certain employment-protection rights apply to employee representatives who have been elected for the purposes of information and consultation:

• during a collective redundancy or business transfer situation - see employee representatives during collective redundancy situations and employee representatives during business transfers
• as representatives of employee safety - see ongoing consultation on health and safety matters
• on proposed changes to occupational and personal pension schemes operated by the employer - see pension representatives
• under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• as part of a European works council or special negotiating body - see the page in this guide on ongoing information and consultation arrangements

Employment protection rights

These rights are as follows:

• The right to reasonable paid time off to carry out their duties. The law does not specify the amount of time off that it is reasonable to allow since this will vary according to the circumstances. You should pay the representative at the appropriate hourly rate for the period of absence from work. You can calculate this by dividing the amount of a week's pay by the number of normal working hours in the week.
• The right not to be subject to a detriment or to be dismissed because of their activities (or proposed activities) as an employee representative - any dismissal in these circumstances is automatically unfair.

In addition, representatives of employee safety and those employee representatives dealing with collective redundancies and business transfers have rights to time off to be trained in their duties. They are also entitled to access office equipment and other workplace facilities to assist them in undertaking their roles.

Employee representatives elected for the purposes of negotiating a workforce agreement have the right not to be subjected to a detriment or be dismissed because of their activities or proposed activities - see representation for workforce agreements.

Such representatives do not have the statutory right to paid time off to carry out their duties. However, it's good practice to give them this right anyway.

Note that these employment-protection rights also apply - as appropriate - to those who are candidates in an election to become an employee representative.

Offering discretionary rights to employee representatives

You should consider allowing employee representatives access to office equipment or other workplace facilities to carry out their work effectively.

What is appropriate will vary according to the circumstances. Communication systems vary from workplace to workplace, and it might be appropriate for you to provide the representative with workspace, access to telephone, the internet, email, etc in order to carry out their duties.

You should also consider giving employee representatives paid time off to be trained in their representative roles.

Other representatives - eg those who are consulted voluntarily by employers - have no statutory rights, though it may be in your interest to allow such representatives access to facilities and the time off to perform their duties.

Read Labour Relations Agency (LRA) guidance on non-union representation in the workplace.

Tribunal claims for employee representatives if their rights are infringed

Employee representatives - or candidates in an election to become a representative - who are dismissed or subjected to a detriment as a result of their activities may lodge a complaint with the Industrial Tribunal.

A tribunal/arbitrator will not normally consider such a claim unless it is made within three months of the date when the alleged infringement occurred.

If the tribunal/arbitrator finds that you:

• dismissed the employee unfairly, an order of reinstatement or re-engagement may be made, or alternatively, an award of compensation
• unreasonably refused a representative or candidate paid time off, a declaration to that effect will be made and the individual will be awarded an amount equal to the pay to which they would have been entitled to if you had not refused the time off
• failed to pay a representative or candidate the appropriate amount for paid time off, an order to pay the amount due shall be made

One of the main benefits of working with employee representatives is that it can create a sense of trust between management and employees. If you can do this, it will improve business performance and can help prevent disputes.

The arrangements you use will depend on the size of your business and the type of consultation. However, it's important to aim for a balanced relationship and make roles clear. For example:

• Set out your expectations of the representatives' day-to-day role, identifying which issues are within the scope of consultation.
• Works/staff councils should have a constitution including their terms of reference and procedure for electing representatives. You should commit time and resources to enable it to operate, such as meeting or training facilities.

It's also important to meet your legal obligations and enable individual representatives to do their job well. Read more on employment-protection rights for employee representatives.