Decision

Decision

Updated 5 November 2025

Applies to England, Scotland and Wales

Case Numbers:

IC/0069 (2025)

IC/0070 (2025)

31 October 2025

CENTRAL ARBITRATION COMMITTEE

THE INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 2004

DECISION ON COMPLAINTS UNDER REGULATION 19(4)

(1)   Mr James Pollock

(2)   Mr Paul Slevin

and

DHL eCommerce UK Limited

1. Introduction

1)         Mr James Pollock (“Mr Pollock”) and Mr Paul Slevin (“Mr Slevin”) (together “the Applicants”), in their capacities as employees of DHL eCommerce UK Limited (“the Employer”), submitted complaints in identical terms to the Central Arbitration Committee (“the CAC”) dated 21 May 2025 under regulation 19(4) of the Information and Consultation of Employees Regulations 2004 (“the Regulations”).

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992, the CAC Chair established a Panel to deal with the case. The Panel consisted of Mr Stuart Robertson as Panel Chair and, as Members, Mr Alastair Kelly and Mr Paul Morley. The Case Manager appointed to support the Panel was Kate Norgate.

2. The grounds of complaint

3)         In broad terms at this stage, the Regulations require employers to establish arrangements for informing and consulting their employees about matters affecting the organisation by way of either a negotiated agreement or the standard provisions laid down in the Regulations, if requested by at least 2% of the workforce. The CAC’s responsibility is to resolve disputes about the establishment and operation of these arrangements.

4)         Although made under regulation 19(4), the Applicants’ complaints require consideration of the terms and interrelationship of several provisions of the Regulations which the Panel will set out later in this decision. Also material are previous CAC proceedings against the Employer under the Regulations arising out of the same events.

5)         At paragraph 5 of their application forms, the Applicants provided particulars of their complaints under regulation 19(4) of the 2004 Regulations, which it is convenient to set out in full:

1. “As provided for under Regulation 7, a valid employee request was submitted to the employer, requesting that they initiate negotiations as required under Regulation 14(1) on the 24th January 2024.

2. As provided for under Regulation 8, where a valid employee request has been made under Regulation 7 by fewer than 40% of employees employed in the undertaking and where there exists one or more pre-existing agreements, the employer must 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.

3. The employer did not inform employees in writing within one month of the date of the employee request that he intends to hold a ballot under Regulation 8.

4. As provided for under Regulation 18(1) where the employer is under a duty, following the making of a valid employee request, to initiate negotiations in accordance with Regulation 14 but does not do so, the standard information and consultation provisions shall apply from the date which is six months from the date on which the valid employee request was made.

5. The Standard Provisions therefore applied on the 24th July 2024.

6. As provided for under Regulation 19(1) where the standard information and consultation provisions are to apply, the employer shall, before the standard information and consultation provisions start to apply, arrange for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives.

7. As provided for under Regulation 19(4) an employee may complain to the CAC that the employer has not arranged for the holding of a ballot in accordance with Regulation 19(1).

8. As provided for under Regulation 19(5) I request that the CAC make an order requiring the employer to arrange the holding of a ballot of its employees to elect the relevant number of information and consultation representatives.”

3. The grounds of response

6)         The Employer submitted its response to the CAC on 29 May 2025. It provided particulars of its response at paragraph 7 of the response form, which again it is convenient to set out in full:

“The Standard Information and Consultation Provisions only apply under regulation 18(1) as alleged where an employer fails to initiate negotiations in accordance with regulation 14. This requires, in particular, for the employer “as soon as reasonably practicable” to invite negotiating representatives to enter into negotiations to reach a negotiated agreement.

It is accepted that an employee request was received on 24 January 2024. However, we complied with the obligations under regulation 14, and in particular negotiations with negotiating representatives opened on 24 April 2024 and a negotiated agreement was signed by all of the negotiating representatives between 25 and 26 April 2024. Accordingly, the Standard Information and Consultation Provisions do not apply.

We note that the basis of this complaint, in part, appears to be that regulation 8, presumably regulation 8(2), applied. This gives employers the option in certain circumstances of seeking an employee ballot to endorse an employee request before commencing negotiations. This is not relevant to these circumstances. We did not exercise any option under regulation 8 and instead proceeded with negotiations under regulation 14. Accordingly, any obligations under regulation 8, including any obligation to inform employees of a ballot to endorse the employee request, does not apply.

As regulation 18(1) does not apply, the obligation to elect information and consultation representatives under regulation 19 also does not apply.”

4. The Mcguire complaint

7)         The Applicants’ complaints arise from an employee request on 24 January 2024 under regulation 7 of the Regulations, which required the Employer to initiate negotiations for an information and consultation agreement, as required under regulation 14(1).  

8)         Following the employee request, the Employer made arrangements for a ballot which it contended in the ensuing proceedings was for employees to elect negotiating representatives. The role of such representatives under the Regulations is to negotiate with the Employer the terms of an information and consultation agreement. The result of that ballot was announced on 24 April 2024 after which the elected representatives agreed with the Employer the terms of an information and consultation agreement. The validity of that ballot was then challenged in proceedings before the CAC.

9)         Specifically, Mr Norman Mcguire (“Mr Mcguire”), also an employee of the Employer, submitted a complaint to the CAC dated 30 April 2024 under regulation 15(1) of the Regulations. Mr Mcguire contended that the Employer had not complied with the requirements set out in regulation 14(2) for the election or appointment of negotiating representatives.

10)       The Applicants also presented complaints to the CAC under regulation 15(1) at the same time as Mr Mcguire’s (in fact a few days earlier, on 25 April 2024), covering the same matters. They withdrew their complaints on 10 April 2025, without any determination of them by the CAC.

11)       Regulation 15(1) provides that where an employee or representative considers that one or both of the requirements set out in regulation 14(2) have not been complied with, they may present a complaint to the CAC within 14 days of the election or appointment. Where a valid request has been made under regulation 7, regulation 14 requires employers, amongst other matters, to make arrangements satisfying regulation 14(2) for the employees of the undertaking to appoint or elect negotiating representatives, in order to initiate negotiations to reach an agreement under the regulations. Regulation 14(2) sets out the requirements for the election or appointment of the negotiating representatives. It is unnecessary for this decision to set out the provisions of regulation 14(2).

12)       The Employer contested Mr Mcguire’s complaint which proceeded to a full hearing before a CAC Panel on 16 June 2025 (The delay in reaching a hearing was at the parties’ request to facilitate negotiations, which proved unsuccessful.). The CAC Panel found that the requirements for the appointment or election of negotiating representatives set out in regulation 14(2) had not been complied with and upheld Mr Mcguire’s complaint. The Panel made an order under regulation 15(2), which provides as follows:

“(2) Where the CAC finds the complaint well-founded it shall make an order requiring the employer to arrange for the process of election or appointment of negotiating representatives referred to in regulation 14 to take place again within such a period as the order shall specify.”

Noting that the terms of regulation 15(2) were mandatory, the Panel ordered the Employer to arrange for the process of election or appointment of negotiating representatives referred to in regulation 14 to be taken again. The Panel further ordered that this take place within the period of eight weeks beginning with the date on which the decision was sent to the parties. That date was 14 July 2025.

13)       Neither Mr Mcguire (who was represented by a full-time trade union officer at the CAC hearing), nor the Applicants in their ultimately withdrawn complaints, raised any contention that if the ballot did not, or was found not to, comply with regulation 14, the standard information and consultation provisions would apply.

5. Further details of the complaints

14)       The CAC held the Applicants’ current complaints in abeyance pending the hearing of the Mcguire complaint, as it related to the same process. On 30 July 2025 the CAC wrote to the Applicants referring to the decision in the Mcguire claim and the order made. The letter set out the view of the present Panel Chair that the decision meant that the subject-matter of the complaints relating to the same process fell away as the process was to be taken again, and referred to regulation 15(3)(b).

15)       The Applicants replied the same day, as follows:

“A valid employee request, under Regulation 14(1), was submitted to the employer on 24th January 2024, requesting that negotiations be initiated.

The employer failed to inform employees in writing within one month of this request that a ballot under Regulation 8 would be held. Employees were not informed until 5th March 2025.

Under Regulation 18(1), where an employer fails to initiate negotiations following a valid employee request, the Standard Provisions apply automatically from six months after the date of the original request.

Given that more than six months elapsed without lawful action by the employer, and in light of the fact that the CAC has since ordered new ballots over a year after this threshold was passed, it is my position that the standard provisions must now apply. No representatives were validly elected under the regulations during the appropriate timeframe.

For these reasons, I respectfully maintain my position and ask that the panel hear my complaint.”

16)       At this point the Applicants’ only specific contention was that the Employer had failed to comply with regulation 8. However, on 31 July 2025, Mr Pollock wrote again to the CAC:

“Following the CAC’s decision in Mr McGuire’s case under Regulation 15(1), I believe this now confirms that no valid election of negotiating representatives ever occurred.

As paragraph 42 of the CAC’s decision clearly states, “what was being created by the arrangements set out in the leaflet was not for the workforce to elect negotiating representatives.”

Therefore, it is now my position that:

The employer failed to initiate valid negotiations under Regulation 14(1) after the valid employee request made on 24 January 2024.

No lawful ballot or appointment of negotiating representatives took place.

As a result, the 6-month period under Regulation 18(1) passed without the employer fulfilling its statutory duties.

The Standard Provisions should therefore now apply.

The prior complaint under Regulation 15(1) was, in substance, not appropriate to the true legal failure. It should have been addressed under Regulation 19(4) from the outset.

I appreciate that Regulation 14(3)(c) pauses the negotiation period in certain cases, but respectfully submit that it does not apply here, as no valid negotiations ever commenced, and the process referenced in the McGuire complaint was not legally compliant.

For these reasons, I maintain that my complaint under Regulation 19(4) is valid and should proceed to a Panel.”

17)       Mr Pollock followed up with a further letter on 1 August 2025, which stated, as far as material, as follows:

“Further to my previous correspondence on 30-Aug and 31-Aug … I would like to offer a short supplementary point to assist the Panel in understanding why I believe my Regulation 19(4) complaint should proceed.

As the CAC has now determined, the ballot held by the employer in early 2024 was not a ballot for negotiating representatives under the (ICE) Regulations. Instead, it was conducted for ECG Area Representatives, as part of an internal framework that pre-dated the employee request.

To emphasise the legal significance of that finding, I would respectfully ask the Panel to consider this analogy:

If a trade union holds an internal election for its own shop stewards, separate from any statutory obligations under ICE and an employee believes that ballot was unfair or non-compliant with ICE regulations, the CAC would not accept a complaint under Regulation 15(1). That’s because such an election is not governed by ICE regulations, or more specifically Regulation 14(2) and therefore falls outside the CAC’s jurisdiction under Regulation 15.

The same principle applies here.

The election that Mr McGuire complained about was, by the CAC’s own finding (paragraph 42), not held under Regulation 14, and was for representatives whose role was within an existing ECG structure, not as statutory negotiating representatives. Therefore, a Regulation 15(1) complaint about that ballot should not have been accepted, just as it would not be accepted in relation to a union’s internal election.

This highlights the central point in my case: because no valid Regulation 14 process was ever initiated, the employer breached its duty under Regulation 14(1), and failed to initiate negotiations following a valid employee request. As more than six months have now passed since that request, and no valid agreement has been reached, Regulation 18(1) applies, and the Standard Provisions must take effect.

Accordingly, my Regulation 19(4) complaint is not only appropriate, it is the only remaining lawful route to enforce the statutory rights conferred by the ICE Regulations.”

18)       Mr Slevin also wrote to the CAC in similar terms, which it is unnecessary to rehearse.

19)       The Applicants were therefore now contending in light of the decision in the McGuire case that the Employer had not complied at all with the requirements of regulation 14 as to initiating negotiations, meaning that the standard provisions applied.

20)       The CAC requested the Employer’s comments on the Applicants’ letters, which the Employer provided on 21 August 2025 in terms which the Panel will summarise, as the letter is lengthy:

(a)        The claims are misconceived and the standard information and consultation provisions do not apply;

(b)       The current complaints are made under regulation 19(1). Regulation 19(1) applies where the standard information and consultation provisions are ‘due to apply’ and sets out a process for the election of information and consultation representatives.

(c)        The circumstances where the standard information and consultation provisions apply are set out in regulation 18. Regulation 18(1)(a) applies where the employer “fails to initiate negotiations”. Regulation 18(1)(b) applies where the “the parties do not reach a negotiated agreement” within the time limit set out in regulation 14(3) as extended by regulation 14(5).

(d)       This is not a case where the Employer failed to initiate negotiations. It is a case where it had sought to initiate negotiations. The legal challenge brought by Mr McGuire (and indeed the original legal challenge brought by the Applicants) was a claim under regulation 15 in relation to an alleged failure in the election of negotiating representatives. It was inherent in this that the employer was initiating negotiations and that what was being challenged was the process followed for the election of representatives.

(e)        The fact that Mr McGuire’s claim under regulation 15 was successful does not mean that there was a failure to initiate negotiations for the purposes of regulation 14(1). A separate remedy applies, namely the requirement to re-run the ballot process for negotiating representatives. This is explicitly clear in the wording of regulation 14 which specifically envisages this scenario of a challenge to the election of representatives under regulation 15) in the time limits set out in regulation 14(3)(c). In turn, the provisions in regulation 18(1)(b) are explicitly linked to the time limits set out in regulation 14(3). Accordingly, the regulations envisage that in the event there is a successful challenge to the election of negotiating representatives, the appropriate remedy is the re-running of the ballot for negotiating representatives, not the imposition of the standard information and consultation provisions.

(f)        Accordingly, the relevant time limits are that regulation 14(3) sets out the time limit for reaching a negotiated agreement. There is an initial period of 3 months beginning with the valid request (“the Initial Period”). Regulation 14(3) then provides an additional period of 6 months (“the Negotiation Period”) for the parties to conclude a negotiated agreement. These periods are subject to certain exceptions set out (in) regulations 14(3), 14(4) and 14(5). The standard information and consultation provisions only apply under 18(1)(b) where no agreement is reached a further period of 6 months from the expiry of the Negotiation Period.

(g)       The regulations specifically state that where a complaint about the election or appointment of negotiating representatives is presented pursuant to regulation 15, the time between the date of the complaint and the date of the determination of that complaint and, where the complaint is upheld, the further period under negotiating representatives are elected or re-appointed is not counted. The Applicants issued their original claims under regulation 15 on 25 April 2024. These claims remained live until they were withdrawn. This period does not count – regulation 14(3)(c). Mr McGuire issued his complaint under regulation 15 on 30 April 2024. The case was determined by a decision dated 11 July 2025 (but sent to the parties on 14 July) with an order that the election process is re-run within the period of 8 weeks beginning with the date the decision was sent to the parties (i.e. 7 September 2025). This period does not count – regulation 14(3)(c).

(h)       The Employer is engaged in re-running the ballot for Negotiating Representatives as required. This process will be concluded within the 8-week time limit set by the CAC. The Employer and the Negotiating Representatives are then entitled to the full balance of the Negotiation Period to reach a Negotiated Agreement. Only if those negotiations fail would the standard information and consultation provisions be triggered and only then, after a further period of 6 months following the expiry of the Negotiation Period.

(i)        It would be an abuse of process and contrary to the intention of the regulations for the Employer to be ordered to re-run the ballot for Negotiating Representatives, with the hope and expectation that a Negotiated agreement would be reached, only to have to run a parallel process under the standard information and consultation provisions.

(j)        In the alternative, if the Applicants’ arguments are accepted, under regulation 22 any complaint in relation to the standard information and consultation provisions must be brought within 3 months of the alleged failure. Their case is that the standard information and consultation provisions were triggered 6 months after the valid request – i.e. 27 July 2024. The claims were in fact brought on 21 May 2025, almost a year out of time and should not be permitted to continue.

(k)       The argument as to regulation 8 is misconceived. A ballot under regulation 8 only applies where an employer is seeking to endorse a pre-existing agreement. This did not apply in this case. Rather the Employer sought to initiate negotiations under regulation 14. There is no such requirement under regulation 14, which merely requires certain steps to be taken “as soon as reasonably practicable”.

21)       Following these communications, the CAC arranged a Panel hearing. The Panel informed the parties that it would deal with the complaints on the basis of written submissions only. This was because there was no dispute of fact and the issues concerned the proper interpretation and interreaction of the provisions of the Regulations. The Panel met on 15 October 2025, and considered the parties’ written submissions, for which the Panel was grateful. It will refer to those submissions as necessary in its considerations.

6. The relevant provisions of the Regulations

22)       It is convenient to begin by setting out the relevant provisions of the Regulations. Several provisions of the Regulations are in play in these proceedings, and they and their inter-relationship require careful consideration.

23)       Regulation 7 deals with employee requests to an employer to negotiate an information and consultation agreement. Regulation 7(1) provides that on receipt of a valid employee request, the employer shall initiate negotiations by taking the steps set out in regulation 14(1). It is not in dispute that a valid employee request was made, on 24 January 2024.

24)       Regulation 8 applies where a valid employee request has been made under regulation 7 and there exists one or more pre-existing agreements meeting certain requirements set out in regulations 8(1)(a) to (d). Where regulation 8 applies, an employer may, instead of initiating negotiations in accordance with regulation 7(1), hold a ballot to seek the endorsement of the employees in the undertaking for the employee request. Under regulation 8(3) (a), the employer must inform the employees in writing within one month of the employee request that he intends to hold a ballot under regulation 8.

25)       Although the Applicants referred to it in their application forms and subsequent correspondence, regulation 8 has no application in these cases. First, there were no pre-existing agreements as required under regulation 8(1). Second and in any event, the Employer did not choose to hold a ballot under regulation 8(2) instead of initiating negotiations under regulation 14(1). The Employer sought to initiate negotiations under regulation 14(1). The requirement to inform the workforce of an intention to hold a ballot under regulation 8(3)(a) only arises if the Employer chooses the option to hold a ballot under regulation 8(2), which the Employer did not. The Panel needs to say nothing more about regulation 8.

26)       As already stated, regulation 7(1) provides that on receipt of a valid employee request, the employer shall initiate negotiations by taking the steps set out in regulation 14(1). Regulation 14(1)(a) states that in order to initiate negotiations, the employer must, as soon as reasonably practicable, make arrangements, satisfying regulation 14(2), for the employees of the undertaking to appoint or elect negotiating representatives. There are provisions then, in regulations 14(1)(b) and (c) respectively, for informing employees of the identity of the negotiating representatives and for inviting the representatives to enter into negotiations to reach a negotiated information and consultation agreement.

27)       Regulation 14(2) sets out the requirements for the election or appointment of the negotiating representatives. As mentioned above, in the McGuire case the CAC Panel found that those requirements were not satisfied. The Panel made an order under regulation 15(2), requiring the Employer to arrange for the process of election or appointment of negotiating representatives referred to in regulation 14 to take place again.

28)       Regulation 14(3) provides, as far as relevant, as follows:

“(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 … but the following periods shall not count towards the three-month period—

(a)…

(b)…

(c) where a complaint about the election or appointment of negotiating representatives is presented pursuant to regulation 15, the time between the date of the complaint and the determination of the complaint, including any appeal and, where the complaint is upheld, the further period until the negotiating representatives are re-elected or re-appointed.

29)       Four points should be made about regulation 14. First, in order to initiate negotiations, the employer must make arrangements for the election or appointment of negotiating representatives which satisfy the requirements of regulation 14(2). The timescale for this is “as soon as reasonably practicable”. Second, the timescale for negotiations to reach a negotiated agreement is 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. In these cases, the date of the employee request was 24 January 2024, meaning (ignoring at this stage any extension under regulation 14(3)(c)), the initial three-month period expired on 23 April 2024 and the further six-month period on 23 October 2024. Third, whilst the six-month period is stated to be for negotiations, no purpose is given for the initial three-month period; the intention is presumably that it is to allow time for the election or appointment of negotiating representatives, but that it is not stated, and the timescale for electing negotiating representatives is only “as soon as reasonably practicable”. Fourth, regulation 14(3)(c) provides that where a complaint is made under regulation 15(1) concerning the election or appointment of representatives, the period from the date of the complaint until the complaint is determined and, where it is upheld, until the negotiating representatives are re-elected or re-appointed does not count but only towards the three-month period; it does count towards the six-month negotiating period.

30)       It is unnecessary to set out the provisions of regulation 15(1). The Panel notes only that the time-limit for a regulation 15(1) complaint is 21 days from the election or appointment. In these cases, the date of the election was 24 April 2024 when the Employer informed employees of the result of the ballot and, therefore, the names of those elected. The Applicants presented their complaints on 25 April 2024 and Mr Maguire his on 30 April 2024, within the 21-day time limit.

31)       Regulation 18 deals with the application of the standard information and consultation provisions. Broadly, these are default provisions which apply where the employer does not initiate negotiations in accordance with regulation 14 when under a duty to do so or the parties fail to reach a negotiated agreement within the timescale in regulation 14(3). Regulation 18 sets this out:

18.— (1) Subject to paragraph (2)—

(a) where the employer is under a duty, following the making of a valid employee request … 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 the sooner; and

(b)  if the parties do not reach a negotiated agreement within the time limit referred to in regulation 14(3) (or that period as extended by agreement under paragraph (5) of that regulation) the standard information and consultation provisions shall apply from the date—

(i) which is six months from the date on which that time limit expires; or

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

32)       If the standard information and consultation provisions are to apply, regulation 19 becomes relevant:

19.— (1) Where the standard information and consultation provisions are to apply, the employer shall, before the standard information and consultation provisions start to apply, arrange for the holding of a ballot of its employees to elect the relevant number of information and consultation representatives.

(2) …

(3) …

(4) An employee or an employee’s representative may complain to the CAC that the employer has not arranged for the holding of a ballot in accordance with paragraph (1).

(5) Where the CAC finds the complaint well-founded, it shall make an order requiring the employer to arrange, or re-arrange, and hold the ballot.

(6) Where the CAC finds a complaint under paragraph (4) well-founded, the employee or the employee’s representative may make an application to the Appeal Tribunal under regulation 22(6) and paragraphs (7) and (8) of that regulation shall apply to any such application.

33)       The intention behind regulations 18 and 19 seems clear. There are two situations where the standard provisions apply. The first is where the employer does not initiate negotiations within regulation 14 when under a duty to do so. In that case, the standard provisions apply six months after the date of the employee request. The second is when the parties have not reached a negotiated agreement within the period in regulation 14(3) (six months after an initial three months). In that case, the standard provisions apply six months after the regulation 14(3) period ends. Regulation 19(1) presupposes that the parties will know ahead of time that the standard provisions will apply: that is clear from the words “are to” in regulation 19(1) and the obligation on the employer to arrange a ballot before they start to apply. They will know either because the employer has not initiated negotiations within a reasonable period (at the latest, before the end of the six-month period when the standard provisions apply) or the parties have not reached a negotiated agreement within the stipulated timescale; in either case, the time before the standard provisions are to apply allows for the parties to prepare and the employer to arrange the ballot to elect information and consultation representatives.

34)       Regulation 19(4) does not state a time-limit for a complaint to the CAC. The Panel notes, however, that regulation 22 provides that a complaint to the CAC under regulation 22(1) arising from an alleged failure by an employer to comply with the terms of a negotiated agreement or one or more of the standard information and consultation provisions must be brought within a period of three months commencing with the date of the alleged failure.

35)       The Panel turns now to the parties’ submissions, which will be set out in summary form.

7. The Applicants’ submissions

36)       The Applicants submit that the Employer did not initiate negotiations as required by regulation 14(1). They say that regulation 14(1) has three elements: (a) to make arrangements, satisfying the requirements of regulation 14(2), for the employees of the undertaking to elect or appoint negotiating representatives; (b) to inform the employees in writing of the identity of the negotiating representatives; and (c) to invite the negotiating representatives to enter into negotiations to reach a negotiated agreement. They contend that the effect of the CAC’s decision in the Mcguire case under regulation 15 is that negotiations were never initiated because the Employer failed to elect negotiating representatives within the terms of regulation 14(2). They say further that because the Employer did not make compliant arrangements for the election of negotiating representatives, the Employer could not comply with any of the requirements of regulation 14(1).

37)       The Applicants contend that the Employer cannot rely on the extension of time in regulation 14(3)(c). That extension of time, they say, applies only where a complaint is made under regulation 15(1) about the election of negotiating representatives, whereas, they say, the Employer’s default in these cases covers all three of the obligations in regulation 14(1).

38)       Based on this, the Applicants submit that the Employer did not initiate negotiations in accordance with regulation 14 and therefore the standard information and consultation provisions apply from the date specified in regulation 18(1)(a)(i), which is six months from the date on which the employee request was made. That date was 23 July 2024, and the Employer failed to comply with the requirement in regulation 19(1) to arrange for the holding of a ballot before that date to elect information and consultation representatives.

39)       Mr Pollock submits alternatively that the effect of the decision in the Mcguire case is that no ballot for negotiating representatives ever took place, as the CAC found that the ballot was for different representatives whose role did not include negotiating the terms of an information and consultation agreement under the regulations. Mr Pollock says the clock could not have been paused during the regulation 15(1) complaint, as the correct analysis was not that the ballot was conducted incorrectly under regulation 14 but was rather that no ballot under the Regulations ever took place. This also means, he says, that the Employer did not comply with the further requirements of regulation 14(1), as the Employer was informing employees about the identity of the elected representatives, and negotiating an agreement with those elected, for different purposes.

8. The Employer’s submissions

40)       Mr Harman, the Employer’s representative, reminds the Panel that the complaints now brought by the Applicants relate to regulation 19(1). Regulation 19(1) arises where the standard information and consultation provisions “are to apply” and sets out a process for the election of information and consultation representatives. The circumstances where the standard information and consultation provisions apply are set out in regulation 18.

41)       In summary, Mr Harman says, regulation 18(1)(a) applies where the employer “fails to initiate negotiations”. Regulation 18(1)(b) applies where the “the parties do not reach a negotiated agreement” within the time limit set out in regulation 14(3). Mr Harman submits that this is not a case where the Employer failed to initiate negotiations. Rather this is a case where the Employer sought to initiate negotiations. The legal challenge brought by Mr Mcguire (and indeed the original legal challenges brought by the Applicants) was made under regulation 15 in relation to an alleged failure in the election of negotiating representatives. It is inherent in this that the Employer was initiating negotiations and that what was being challenged was the process followed for the election of representatives.

42)       Mr Harman contends that the fact that the Mcguire claim under regulation 15 was successful does not mean that there was a failure to initiate negotiations for the purposes of regulation 14(1). A separate and specific remedy applies under regulation 15, namely the requirement to re-run the ballot process for negotiating representatives. This, he says, is explicitly clear in the wording of regulation 14 which specifically envisages in the time limits set out in regulation 14(3)(c) the scenario of a challenge to the election of negotiating representatives under regulation 15. In turn, the provisions in regulation 18(1)(b) are explicitly linked to the time limits set out in regulation 14(3). Accordingly, the Regulations envisage that if there is a successful challenge to the election of negotiating representatives, the appropriate remedy is the re-running of the ballot for negotiating representatives, not the imposition of the standard information and consultation provisions.

43)       Mr Harman refers to the time limits under regulation 14(3). The Applicants issued their original claims under regulation 15 on 25 April 2024. Those claims remained live until they were withdrawn on 10 April 2025. This period between 25 April 2024 and 10 April 2025 does not count under regulation 14(3)(c). Mr Mcguire issued his complaint under regulation 15 on 30 April 2024. His case was determined by a CAC decision dated 11 July 2025 (but sent to the parties on 14 July 2025) with an order that the election process was to be re-run within the period of eight weeks beginning with the date the decision was sent to the parties (that is, by 7 September 2025). He says that this period between 30 April 2024 and 7 September 2025 also does not count under regulation 14(3)(c).

44)       Mr Harman says that it would be an abuse of process and entirely contrary to the intention of the Regulations for the Employer to be ordered to re-run the ballot for the election of negotiating representatives, with the intention that a negotiated agreement would then be reached, only to have to run a parallel process under the standard information and consultation provisions. He accepts that the CAC determined that the April 2004 election did not comply with regulation 14(2), but that does not mean that that the standard information and consultation provisions should be imposed. Rather the Regulations explicitly envisage that if there is a successful challenge to the election process, the remedy is the re-running of the ballot for negotiating representatives. This is what the CAC ordered in its decision dated 11 July 2025 giving eight weeks for the election process to be concluded.

45)       Mr Harman says that following the decision of the CAC on 11 July 2025, the Employer has in compliance with that decision re-run the election process for negotiating representatives within the allotted eight weeks; it has confirmed the details of the negotiating representatives to employees; and it has invited the negotiating representatives to commence negotiations with the intention of reaching a negotiated agreement.

46)       Mr Harman contends that the Applicants’ claims are an abuse of process. He says the Applicants are attempting to re-litigate the same factual and legal issues relating to the 2024 ballot following their unqualified withdrawal of their original complaints (and matters that have already been determined by the CAC in the Mcguire complaint). When choosing to withdraw their original claims in April 2025, the Applicants did so in clear terms without any qualification. The well-established legal principle of estoppel is that parties should not be permitted to re-litigate an issue of fact or law that has already been determined, in this case by the withdrawal of the previous applications.

47)       In the alternative, if the Applicants’ arguments are accepted, Mr Harman says that under regulation 22(2), any complaint in relation to the standard information and consultation provisions must be brought within three months of the alleged failure. The Applicants’ case is that the standard information and consultation provisions were triggered six months after the valid request, which means on 27 July 2024. The complaints were brought on 21 May 2025, almost a year out of time and should not be permitted to continue.

9. Considerations

48)       The starting-point for the Panel is that these are complaints under regulation 19(4). The Applicants say that the Employer failed to arrange a ballot as required by regulation 19(1), which provides that where the standard information and consultation provisions are to apply, the Employer is required, before the standard information and consultation provisions start to apply, to arrange for the holding of a ballot to elect the relevant number of information and consultation representatives.

49)       It is not in dispute that the Employer did not arrange a ballot within regulation 19(1). The Employer says that it was under no obligation to do so, as the standard information and consultation provisions did not apply.

50)       This issue requires consideration of regulation 18(1)(a), which provides that where the employer is under a duty, following the making of a valid employee request, to initiate negotiations in accordance with regulation 14 but does not do so, the standard information and consultation provisions shall apply from the date which is six months from the date on which the valid employee request was made.

51)       The parties’ submissions on this issue are starkly in conflict. The Applicants say that the import of the CAC’s decision in the Mcguire case was that the Employer did not initiate negotiations within regulation 14. As a result, by virtue of regulation 18(1)(a), the standard provisions applied from 23 July 2024, at the end of the six months beginning with the date of the employee request. The Employer, on the other hand, says that it did initiate negotiations by holding a ballot for the election of negotiating representatives, announcing the outcome of the ballot and the identities of those elected to its workforce and proceeding to negotiate an information and consultation agreement with them. The Employer accepts that the CAC later found in the Mcguire case that it had not complied with regulation 14(1) because the election of representatives did not accord with regulation 14(2), but says that the CAC’s decision does not alter the fact that it had initiated negotiations.

52)       The Panel has not found the answer to this straightforward. Regulation 18 applies where the Employer was under a duty to initiate negotiations in accordance with regulation 14 but does not do so. The Employer does not dispute that it was under the duty, a valid request having been made on 24 January 2024. In order to initiate negotiations, the Employer must arrange a ballot in accordance with and satisfying the requirements of regulations 14(1)(a) and (2). The CAC’s decision in the Mcguire case means that the Employer did not initiate negotiations in accordance with regulation 14, because the ballot it arranged did not satisfy the requirements of regulation 14(2).  

53)       There is force in the Applicants’ contention that that is the end of the matter, that put simply, the Employer did not initiate negotiations in accordance with regulation 14(1). It is not enough, on this argument, that the Employer may have intended to initiate negotiations which satisfied regulation 14, and/or thought it had done so. The CAC’s decision in the Maguire case means that it had not done so.

54)       But the Panel refers back to its analysis of regulations 18 and 19 at paragraph 33 of this decision. It is inherent in the provisions of regulations 18 and 19 that the parties know in advance that the standard provisions are to apply. The obligation to arrange a ballot under regulation 19(1) before the standard provisions start to apply is unworkable unless the parties have that knowledge. The obligation to arrange a ballot only arises where the standard provisions are to apply. On the facts of these cases, if the Applicants’ contention is correct, the standard provisions applied from 24 July 2024, meaning that the Employer was in default of regulation 19(1) a year before it could have known (or indeed before it was decided) that it was under that obligation. The parties did not know, and could not have known, that the Employer had not complied with regulation 14(1) until they received the CAC’s decision in the Mcguire case, which, it will be recalled, gave them the opportunity to put things right by taking the process again. It will be recalled also that neither Mr Mcguire nor the Applicants contended in their regulation 15(1) applications that the standard provisions applied; indeed, the fact that they pursued complaints under regulation 15 suggests it did not cross their minds that such might be the case.

55)       The other concern for the Panel is this: if the Applicants are right and the result of the decision in the McGuire case is that the standard provisions apply, what does that mean for the CAC’s order that the ballot be taken again? Regulation 15(2) required the CAC, having found that the complaint succeeded, to make an order that the ballot be taken again. If the Applicants are correct, that order could be of no effect as the standard provisions already applied. That, in the Panel’s view, creates an absurdity; it simply cannot be correct.

56)       In the Panel’s view, there are two solutions to the conundrum. These have regard to what the Panel considers to be the purpose and thrust of the Regulations. They give proper weight to the CAC’s decision in the regulation 15 complaint and reflect that in accordance with that decision, the parties must be given the opportunity to reach a negotiated agreement once negotiation representatives have been elected through the re-taken ballot, rather than having the default standard provisions imposed on them. 

57)       The first solution is that in the circumstances of this case, the Employer cannot be said not to have complied with its duty to initiate negotiations in accordance with regulation 14(1). This is not a case where the Employer did nothing, which is what regulation 18(1)(a) contemplates. The Employer contended throughout the proceedings in the Mcguire case that it had complied with the duty. The CAC found that following the employee request in January 2024, it had organised a ballot in early March 2024, had notified its employees of the names of those elected in late April 2024 and had negotiated an information and consultation agreement with the representatives. The CAC found that the ballot it had arranged did not satisfy the requirements of regulation 14(2) in that the Employer did not make clear that one of the responsibilities of those elected was to negotiate an information and consultation agreement and not all employees were able to participate in the election process.

58)       The Applicants rely on the outcome in the Mcguire case and the Panel accepts that that outcome was that the Employer had not complied with regulation 14(1), but the outcome cannot be separated from the CAC’s order, in accordance with regulation 15(2), that the process for the election of representatives must be taken again. The Applicants cannot rely on one part of the CAC’s decision in Maguire without considering the rest of it. The Panel must take a holistic view of the process, covering what the Employer did and the outcome of the CAC hearing. Taking that approach, the order of the CAC must be allowed to take effect as part of the process and it is for the Employer to comply with regulation 14(1) in carrying out the process again. As Mr Harman says, that order is the appropriate remedy where the default was in the arrangements for the election of negotiating representatives and this is consistent with the provisions and purpose of the Regulations.

59)       This outcome not only accords with the purpose of the Regulations but avoids the absurd results highlighted above. It means that the Applicants’ complaints fail and are dismissed.

60)       The second solution relates to regulation 14(3) of the Regulations. Under regulation 14(3)(c), the period for negotiations under regulation 14(1)(c) lasts 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. The sanction if an agreement is not reached within that period is that, ultimately, the standard provisions will apply. But where a complaint about the election or appointment of negotiating representatives is presented to the CAC pursuant to regulation 15, the time between the date of the complaint and the determination of the complaint, including any appeal and, where the complaint is upheld, the further period until the negotiating representatives are re-elected or re-appointed does not count towards the three-month period. This, of course, if it applies, has the effect of delaying the commencement of the six-month negotiating period, which does not begin until the three-month period ends. This reflects the intention of the legislature that the only remedy, if there is a dispute about the arrangements for the election of negotiating representatives under regulation 14(1), is by way of a complaint to the CAC under regulation 15(1), and in the event of such a complaint, the negotiating process (and the application of the standard provisions) should be held in abeyance pending the CAC’s decision and any action ordered by the CAC.

61)       But the wording of regulation 14(3)(c) creates a difficulty. It is a problem which Mr Harman, whilst invoking the stop the clock provisions in regulation 14(3)(c) has not spotted. It is that the pause only applies to the three-month period. Looking at the dates in these cases, the initial three-month period ran from 24 January 2024 (the formulation “beginning with” the date means that it is included in the period) to 23 April 2024. The Applicants presented their regulation 15 complaints to the CAC on 25 April 2024, Mr Mcguire presented his a little later, on 30 April 2024. That meant that by the time the Applicants presented their complaints, the initial three-month period had already expired.

62)       It is trite that a time limit or period within which to do something cannot be extended if it has already expired. If the Applicants or Mr Mcguire had lodged their complaints under regulation 15 before 23 April 2024, in the Applicants’ cases just three days earlier, the stop the clock provisions in regulation 14(3)(c) would have been engaged and the time for negotiations under regulation 14(3) would have been paused. The clock would have been stopped, and because the six-month period ran from the end of the three-month period, time overall would have stopped. But the difficulty is that because the three-month period had ended before the Applicants and Mr Mcguire lodged their complaints, the Employer does not have the benefit of the stop the clock provisions.

63)       The obligation on the Employer under regulation 14(1) is to initiate negotiations to reach an agreement by taking the three steps set out at regulation 14(1) as soon as reasonably practicable. There is no specific requirement that the Employer must have done what regulation 14(1) requires it to do within the initial three-month period. It is unlikely, however, that an employer would be found not to have complied with its duty to initiate negotiations until the three-month period had expired. If a complaint under regulation 15 had been presented within that period, the clock would have been stopped, and the purpose of that is clearly so that the CAC could resolve the issue about the election of representatives and the process could be re-taken. But in these cases, the timing of the complaints under regulation 15 means that the stop the clock provisions does not apply.

64)       The difficulty arises from an accident of timing. The Panel does not know why the pause under regulation 14(3)(c) applies only to the three-month period. Given the purpose and effect of the provision, it is difficult to see a principled reason for it. The Panel thinks it likely that the legislature simply did not consider the position if, as happened here, the election of representatives took place at such a time that the 21-day time-limit for a regulation 15 complaint expired after the end of the three-month period. There is no apparent reason why the stop the clock provision should not apply in such circumstances. This creates an obvious anomaly in these cases where the pause is not available to the Employer because of a time lapse of only three days. It is an anomaly which the Panel believes is unintended. It also creates the undesirable and surely unintended position where the time for negotiations continues to run whilst the CAC deals with a dispute about the election of the negotiating representatives.

65)       The Panel considers that it should take a purposive and common-sense approach to the wording of regulation 14(3)(c) in order to address, as it must, the obvious anomaly in the regulation which the legislature cannot have contemplated when drafting it. This is where the complaint under regulation 15 is made after the three-month period has passed. Taking a purposive view, the Panel considers that it should interpret regulation 14(3) by omitting the phrase “three-month” in the fourth line of regulation 14(3). The effect in these cases is that the time-limit is extended and the Panel does not find that the Employer had failed to initiate negotiations under regulation 14(1), as the CAC has ordered that the process is taken again and the Applicants’ complaints do not relate to the re-taken process.

66)       In consequence of this also, the Applicants’ complaints fail and are dismissed.

67)       For completeness, as Mr Harman invites it to do, the Panel has also considered the position assuming the Applicants’ contentions were correct and the standard provisions applied as at 23 July 2024. As the Panel has observed, regulation 19(4) does not set a time-limit for a complaint to the CAC. This is an obvious omission from the Regulations; every other complaint under the Regulations carries a time-limit, generally fairly short, and it cannot have been intended that there should be no time-limit for a regulation 19(4) complaint. Although the time-limit under regulation 22 applies only to complaints under regulation 22(1), and not to regulation 19(4), it seems appropriate to apply the same provision.

68)       On the Applicants’ case, under regulation 18(1)(a), the standard provisions applied from the date which is six months from the date on which the employee request was made on 24 January 2024, namely 24 July 2024. Adopting regulation 22(2), the time-limit for the complaints is three months commencing with the date of the alleged failure. The failure was that the Employer did not arrange the ballot before the standard provisions started to apply. At the latest, therefore, the date of the failure was 23 July 2024. Three months commencing with that date is 22 October 2024. The Applicants presented their complaints on 21 May 2025, seven months out of time. Even if, therefore, the Applicants’ contentions are correct, the complaints are inadmissible as being presented out of time and must be dismissed for that reason.

10. Decision

69)       For the reasons set out above, the decision of the Panel is that the Applicants’ complaints under regulation 19(4) of the 2004 Regulations fail and are dismissed.

Panel

Mr Stuart Robertson - Chair of the Panel

Mr Alistair Kelly

Mr Paul Morley

31 October 2025