Central Arbitration Committee – The Transnational Information and Consultation of Employees Regulations 1999 as amended in 2010 (TICE) are the domestic implementation of EU Council Directive 2009/38/EC. Pursuant to TICE Regulation 9, on 3 June 2013 a request was made by employees’ representatives of the Respondent Community-scale undertaking (Manpower) to negotiate an agreement for a European Works Council (EWC). There followed ballots for membership of the necessary Special Negotiating Body (SNB) throughout Manpower’s European workplaces. The Claimant Mr Lean, an employee of Manpower, stood as a candidate in the UK SNB ballot but was not elected. Negotiations between the SNB and Manpower’s central management took place. This resulted in an EWC agreement signed on 13 March 2017, which was more than 3 years after the date of the request to negotiate. TICE Regulation 18(1)(c) states that the provisions contained in its Schedule (the Subsidiary Requirements) for establishing the EWC ‘ . . shall apply if – . . (c) after the expiry of a period of three years beginning on the date on which a valid request referred to in regulation 9 was made, the parties have failed to conclude an agreement under regulation 17 and the special negotiating body has not taken the decision under regulation 16(3).’ No such decision under Regulation 16(3) had been taken.
On 30 January 2017, i.e. before the EWC agreement was entered, the Claimant made complaint to the CAC pursuant to TICE Regulation 20 on the basis that (i) ‘because of a failure of central management, the [EWC] . . has not been established’ (20(1)(b)); and that (ii) as an employee and ‘in a case where a [SNB] does not exist’ (20(3)(b)), he was a ‘relevant applicant’ for that purpose. In particular he contended that the effect of Regulation 18(1)(c) was that, in the event that an EWC agreement had not been concluded between the SNB and central management within 3 years of the Regulation 9 request to negotiate, the SNB as a matter of law ceased to exist.
The CAC dismissed the complaint, holding that the existence of the SNB was a question of fact; and that the SNB in fact continued in existence after the third anniversary of the request to negotiate.
The EAT dismissed the Claimant’s appeal, in particular holding that on its proper construction Regulation 18(1)(c) is not to be read as if its conditions for application of the Schedule are merely the expiry of 3 years without an EWC; that its words ‘failed to conclude an agreement’ mean ‘are unable to conclude an agreement’; that as at the third anniversary of the request to negotiate the parties were not unable to reach agreement, and thereafter proceeded to do so; that the SNB continued to exist after the third anniversary; and that accordingly the Claimant was not a ‘relevant applicant’ for the purpose of TICE Regulation 20.
Citations:
[2018] UKEAT 0096 – 18 – 1510
Links:
Jurisdiction:
England and Wales
Employment
Updated: 30 May 2022; Ref: scu.634375