Commentary on Sections Consultation by employers Section 261: Further provision about regulations relating to consultation
954.Subsection (1) of this section provides that for the purposes of this section “consultation regulations” means regulations under section 259 or 260.
955.Subsection (2) provides that consultation regulations may be made specifying how consultation must be carried out including making provision for the time periods for consultation, the information that must be provided to those consulted, and who is to be consulted, including any discretion the employer may have as to the persons to be consulted. The prescribed requirements may also contain provision about representatives that employees may have and the method of selecting those employees. Subsection (2) also makes provision for regulations to be made to protect employee representatives (such as Trade Union and Information and Consultation (I&C) representatives) involved in the pensions consultation process from suffering any detriment or unfair dismissal by reason of carrying out their consultation duties, and to ensure they are given adequate time and remuneration to carry out their consultation duties. This mirrors existing protection provided to employee representatives by reason of the Employment Rights Act 1996 and the protection that is proposed for I&C representatives.
956.Subsection (2) also provides for regulations to be made enabling any requirement to consult on future pension changes to be waived or relaxed by order of the Regulator in appropriate circumstances. The section also makes provision for regulations to require the employer to communicate to the trustees or managers of the scheme any representations received by the employer as part of the consultation process.
957.Subsection (3) provides that where employers, trustees or managers have obligations imposed on them by the consultation regulations, they must, if required by the Regulator, provide information to the Regulator to show that they have complied with those obligations. Subsection (4) provides for regulations to be made identifying the type of information to be provided to the Regulator under subsection (3) as proof of compliance, and the form, manner and time period within which it must be provided.
958.Subsection (5) makes it clear that where employers have other duties to consult on changes to future pension arrangements those duties are unaffected by the new consultation regulations.