PART IGENERAL

Citation, commencement and extent_I1

1.—(1) These Regulations may be cited as the Transnational Information and Consultation of Employees Regulations 1999 and shall come into force on 15th January 2000.

(2) These Regulations extend to Northern Ireland.

Interpretation_I2

2.—(1) In these Regulations—

“the 1996 Act” means the Employment Rights Act 1996(3);

“the 1996 Order” means the Employment Rights (Northern Ireland) Order 1996(4)

“ACAS” means the Advisory, Conciliation and Arbitration Service;

[^F1“agency worker” has the meaning provided for in regulation 3 of the Agency Workers Regulations 2010;^F1]

“Appeal Tribunal” means the Employment Appeal Tribunal;

“CAC” means the Central Arbitration Committee;

“central management” means—

or, where appropriate, the central management of an undertaking or group of undertakings that could be or is claimed to be a Community-scale undertaking or Community-scale group of undertakings;

“Community-scale undertaking” means an undertaking with at least 1000 employees within the [^F2Relevant States^F2] and at least 150 employees in each of at least two [^F2Relevant States^F2] ;

“Community-scale group of undertakings” means a group of undertakings which has—

“consultation” means the exchange of views and establishment of dialogue between members of a European Works Council in the context of a European Works Council, or information and consultation representatives in the context of an information and consultation procedure, and central management or any more appropriate level of management;

“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

“controlled undertaking” has the meaning assigned to it by regulation 3;

“controlling undertaking” has the meaning assigned to it by regulation 3;

“employee” means an individual who has entered into or works under a contract of employment and in Part VII and regulation 41 includes, where the employment has ceased, an individual who worked under a contract of employment;

“employees' representatives” means—

[^F4“European Works Council” means the council, established—

with the purpose of informing and consulting employees;^F4]

“Extension Directive” means Council Directive 97/74/EC of 15 December l997(5) extending, to the United Kingdom, the Transnational Information and Consultation Directive;

“group of undertakings” means a controlling undertaking and its controlled undertakings;

“group undertaking” means an undertaking which is part of a Community-scale group of undertakings;

[^F5“hirer” has the meaning provided for in regulation 2 of the Agency Workers Regulations 2010;^F5]

“independent trade union” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992(6) or in Northern Ireland the 1996 Order;

“information and consultation procedure” means one or more information and consultation procedures agreed under—

“information and consultation representative” means a person who represents employees in the context of an information and consultation procedure;

“local management” means the management of one or more establishments in a Community-scale undertaking or of one or more undertakings in a Community-scale group of undertakings which is not the central management;

^F7...

[^F8“national employee representation body” means—

[^F8“relevant date” has the meaning given to it in regulation 6(4);^F8]

[^F9“Relevant State” means―

“special negotiating body” means the body established [^F10before exit day^F10] for the purposes of negotiating with central management an agreement for a European Works Council or an information and consultation procedure;

[^F11“suitable information relating to the use of agency workers” means—

[^F11“temporary work agency” has the meaning provided for in regulation 4 of the Agency Workers Regulations 2010;^F11]

“Transnational Information and Consultation Directive” means Council Directive 94/45/EC of 22 September 1994(7) on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees;

“UK management” means the management which [^F12before exit day was, or would have been,^F12] subject to the obligation in regulation 13(2) or paragraph 4(1) of the Schedule, being either the central management in the United Kingdom or the local management in the United Kingdom;

^F13...

(2) To the extent that the Transnational Information and Consultation Directive and the Extension Directive permit the establishment of more than one European Works Council in a Community-scale undertaking or Community-scale group of undertakings, these Regulations shall be construed accordingly.

(3) In paragraphs (1) and (4) of this regulation and in [^F14regulation 6^F14] and paragraphs 3 to 5 of the Schedule, references to “UK employees” are references to employees who are employed in the United Kingdom by a Community-scale undertaking or Community-scale group of undertakings.

^F15(4) In ... paragraphs 3 and 4 of the Schedule, references to “UK employees' representatives” are references to employees' representatives who represent UK employees.

[^F16(4A)In paragraph (1) in the definition of “national employee representation body” and in regulation 18A, matters are transnational where they concern—

(a)the Community-scale undertaking or Community-scale group of undertakings as a whole, or

(b)at least two undertakings or establishments of the Community-scale undertaking or Community-scale group of undertakings situated in two different [^F2Relevant States^F2].

(4B)The arrangements to link information and consultation of a European Works Council with information and consultation of the national employee representation bodies—

^F17(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)in [^F18regulation^F18] 19E are subject to the limitation in regulation 18A(7); and

(c)in [^F19regulation^F19] 19E shall not affect the main purpose for which a national employee representation body was established.

(4C)An agency worker who has a contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) with a temporary work agency which is a Community-scale undertaking or Community-scale group of undertakings at the relevant date, which is not a contract of employment, shall be treated as being employed by that agency for the duration of their assignment with a hirer for the purposes of—

(a)calculating the number of employees within the definitions of “Community-scale undertaking” and “Community-scale group of undertakings” in this regulation; and

(b)the means of calculating the number of employees in regulation 6.^F16]

(5) In the absence of a definition in these Regulations, words and expressions used in particular regulations and particular paragraphs of the Schedule to these Regulations which are also used in the provisions of the Transnational Information and Consultation Directive or the Extension Directive to which they [^F20were designed^F20] to give effect have the same meaning as they have in those provisions.

Controlled and Controlling Undertaking_I3

3.—(1) In these Regulations “controlling undertaking” means an undertaking which can exercise a dominant influence over another undertaking by virtue, for example, of ownership, financial participation or the rules which govern it and “controlled undertaking” means an undertaking over which such a dominant influence can be exercised.

(2) The ability of an undertaking to exercise a dominant influence over another undertaking shall be presumed, unless the contrary is proved, when in relation to another undertaking it directly or indirectly—

(a)can appoint more than half of the members of that undertaking’s administrative, management or supervisory body;

(b)controls a majority of the votes attached to that undertaking’s issued share capital; or

(c)holds a majority of that undertaking’s subscribed capital.

(3) In applying the criteria in paragraph (2), a controlling undertaking’s rights as regards voting and appointment shall include—

(a)the rights of its other controlled undertakings; and

(b)the rights of any person or body acting in his or its own name but on behalf of the controlling undertaking or of any other of the controlling undertaking’s controlled undertakings.

(4) Notwithstanding paragraphs (1) and (2) above an undertaking shall not be a controlling undertaking of another undertaking in which it has holdings where the first undertaking is a company [^F21described^F21] in Article 3(5)(a) or (c) of Council Regulation [^F22(EC) No 139/2004 of 20 January 2004^F22] on the control of concentrations between undertakings [^F23(whether or not the Regulation applies to that company)^F23] .

(5) A dominant influence shall not be presumed to be exercised solely by virtue of the fact that an office holder is exercising functions, according to the law of a [^F3Relevant State^F3] , relating to liquidation, winding-up, insolvency, cessation of payments, compositions of creditors or analogous proceedings.

(6) Where the law governing an undertaking is the law of a [^F3Relevant State^F3] , the law applicable in order to determine whether an undertaking is a controlling undertaking shall be the law of that [^F3Relevant State^F3] .

(7) Where the law governing an undertaking is not that of a [^F3Relevant State^F3] the law applicable shall be the law of the [^F3Relevant State^F3] within whose territory—

(a)the representative of the undertaking is situated; or

(b)in the absence of such a representative, the management of the group undertaking which employs the greatest number of employees is situated.

(8) If two or more undertakings (whether situated in the same or in different [^F2Relevant States^F2] ) meet one or more of the criteria in paragraph (2) in relation to another undertaking, the criteria shall be applied in the order listed in relation to each of the first-mentioned undertakings and that which meets the criterion that is highest in the order listed shall be presumed, unless the contrary is proved, to exercise a dominant influence over the undertaking in question.

Circumstances in which provisions of these Regulations apply_I4

4.—(1) Subject to paragraph (2) the provisions of regulations [^F2417 to 41^F24] and of regulation 46 shall apply in relation to a Community-scale undertaking or Community-scale group of undertakings only where, in accordance with regulation 5, the central management is situated in the United Kingdom.

(2) The following regulations shall apply in relation to a Community-scale undertaking or Community-scale group of undertakings whether or not the central management is situated in the United Kingdom—

^F25(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F25(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)regulation 18 to the extent it applies paragraphs 3 to 5 of the Schedule (UK members of the European Works Council);

(d)regulations 23(1) to (5) (breach of statutory duty);

(e)regulations 25 to 33 (protections for members of a European Works Council, etc.);

(f)regulations 34 to 39 (enforcement bodies) to the extent they relate to applications made or complaints presented under any of the other regulations referred to in this paragraph;

(g)regulations 40 and 41 (restrictions on contracting out).

The central management_I5

5.—(1)[^F26This regulation applies where^F26] —

^F27(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the central management is not situated in a [^F3Relevant State^F3] and the representative agent of the central management (to be designated if necessary) is situated in the United Kingdom; or

(c)neither the central management nor the representative agent (whether or not as a result of being designated) is situated in a [^F3Relevant State^F3] and—

(i)in the case of a Community-scale undertaking, there are employed in an establishment, which is situated in the United Kingdom, more employees than are employed in any other establishment which is situated in a [^F3Relevant State^F3] , or

(ii)in the case of a Community-scale group of undertakings, there are employed in a group undertaking, which is situated in the United Kingdom, more employees than are employed in any other group undertaking which is situated in a [^F3Relevant State^F3] ,

^F28....

(2) Where [^F29this regulation applies^F29] , the central management shall be treated, for the purposes of these Regulations, as being situated in the United Kingdom and—

(a)the representative agent referred to in paragraph (1)(b); or

(b)the management of the establishment referred to in paragraph (1)(c)(i) or of the group undertaking, referred to in paragraph (1)(c)(ii),

shall be treated, respectively, as being the central management.

PART II^F30EMPLOYEE NUMBERS ...

Calculation of numbers of employees_I6

6.—(1) For the purposes of determining whether an undertaking is a Community-scale undertaking or a group of undertakings is a Community-scale group of undertakings, the number of employees employed by the undertaking, or group of undertakings, shall be determined—

(a)in the case of UK employees, by ascertaining the average number of employees employed during a two year period, calculated in accordance with paragraph (2) below;

(b)in the case of employees in another [^F3Relevant State^F3] , by ascertaining the average number of employees employed during a two year period, calculated in accordance with the provisions of the law or practice of that [^F3Relevant State^F3] which is designed to give effect to the Transnational Information and Consultation Directive.

(2) Subject to paragraph (3), the average number of UK employees is to be ascertained by—

(a)determining the number of UK employees in each month in the two year period preceding the relevant date (whether they were employed throughout the month or not);

(b)adding together all of the monthly numbers, and

dividing the number so determined by 24.

(3) For the purposes of the calculation in paragraph 2(a) if for the whole of a month within the two year period an employee works under a contract by virtue of which he would have worked for 75 hours or less in that month—

(a)were the month to have contained 21 working days;

(b)were the employee to have had no absences from work; and

(c)were the employee to have worked no overtime,

the employee may be counted as half a person for the month in question, if the UK management so decides.

(4) For the purposes of this regulation, [^F31regulations 2(4C), ^F32... and 20^F31] “relevant date” means—

[^F33(a)where a request under regulation 7 was made before exit day but no valid request under regulation 9 was made before that day, the last day of the month preceding the month in which the request under regulation 7 was made;

(b)where a valid request under regulation 9 was made before exit day (whether or not a request under regulation 7 was made), the last day of the month preceding the month in which the request under regulation 9 was made.^F33]

(5) Where appropriate, the references in paragraph (4) to regulations 7 and 9 shall be read, instead, as references to the provisions of the law or practice of a [^F3Relevant State^F3] other than the United Kingdom which are designed to give effect to, respectively, Article 11(2) and Article 5(1) of the Transnational Information and Consultation Directive.

Entitlement to information

^F347. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Complaint of failure to provide information

^F348. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Request to negotiate an agreement for a European Works Council or information and consultation procedure

^F349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Dispute as to whether valid request made or whether obligation in regulation 9(1) applies

^F3410. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F35PART IIISPECIAL NEGOTIATING BODY

Functions of the special negotiating body

^F3511. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Composition of the special negotiating body

^F3512. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Ballot arrangements

^F3513. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conduct of ballot

^F3514. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Consultative Committee

^F3515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART IVEUROPEAN WORKS COUNCIL AND INFORMATION AND CONSULTATION PROCEDURE

Negotiation procedure

^F3616. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Content and scope of a European Works Council agreement and information and consultation procedure_I7

^F3717.—(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F37(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F38(9)Where information disclosed under a European Works Council agreement or an information and consultation procedure includes information as to the employment situation in the Community-scale undertaking or, as the case may be, the Community-scale group of undertakings, this shall include suitable information relating to the use of agency workers (if any).^F38]

[^F39Subsidiary requirements

18.The provisions of the Schedule continue to apply on and after exit day in any case where they applied before exit day.^F39]

[^F40Information and consultation

18A.—(1)This regulation applies where—

(a)a European Works Council or information and consultation procedure has been established [^F41before exit day^F41] under regulation 17; or

(b)a European Works Council has been established [^F42before exit day^F42] by virtue of regulation 18.

(2)The central management, or any more appropriate level of management, shall give information to—

(a)members of a European Works Council; or

(b)information and consultation representatives,

as the case may be, in accordance with paragraph (3).

(3)The content of the information, the time when, and manner in which it is given, must be such as to enable the recipients to—

(a)acquaint themselves with and examine its subject matter;

(b)undertake a detailed assessment of its possible impact; and

(c)where appropriate, prepare for consultation.

(4)The central management, or any more appropriate level of management, shall consult with—

(a)members of a European Works Council; or

(b)information and consultation representatives,

as the case may be, in accordance with paragraph (5).

(5)The content of the consultation, the time when, and manner in which it takes place, must be such as to enable a European Works Council or information and consultation representatives to express an opinion on the basis of the information provided to them.

(6)The opinion referred to in paragraph (5) shall be provided within a reasonable time after the information is provided to the European Works Council or the information and consultation representatives and, having regard to the responsibilities of management to take decisions effectively, may be taken into account by the central management or any more appropriate level of management.

(7)The information provided to the members of a European Works Council or information and consultation representatives, and the consultation of the members of a European Works Council or information and consultation representatives shall be limited to transnational matters.

(8)Where information as to the employment situation in the Community-scale undertaking or, as the case may be, the Community-scale group of undertakings, is disclosed by the central management or any more appropriate level of management, this shall include suitable information relating to the use of agency workers (if any).^F40]

Cooperation_I8

19.—(1) The central management and the European Works Council are under a duty to work in a spirit of cooperation with due regard to their reciprocal rights and obligations.

(2) The duty in paragraph (1) shall apply also to the central management and information and consultation representatives.

[^F43Means required

19A.—(1)Subject to paragraph (2), the central management shall provide the members of a European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings under these Regulations.

(2)The obligation on central management in paragraph (1) does not include an obligation to provide a member of a European Works Council with—

(a)time off during working hours to perform functions as such a member, or remuneration for such time off (as required by regulations 25 and 26);

(b)the means required to undertake training (as required by regulation 19B); or

(c)time off during working hours to undertake training, or remuneration for such time off (as required by regulations 25 and 26).^F43]

[^F43Right to training for members of a European Works Council, etc

19B.—(1)Subject to paragraph (2), the central management shall provide an employee who is—

^F44(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a member of a European Works Council,

with the means required to undertaking training to the extent necessary for the exercise of the employee’s representative duties.

(2)The obligation on central management referred to in paragraph (1) does not include an obligation to provide time off during working hours to undertaking training, or remuneration for such time off (as required by regulations 25 and 26).^F43]

[^F43European Works Council to inform, etc

19C.Subject to regulation 23, a European Works Council shall inform—

(a)the employees’ representatives in the establishments of a Community-scale undertaking or in the undertakings of a Community-scale group of undertakings; or

(b)to the extent that any employees are not represented by employees’ representatives, the employees themselves,

of the content and outcome of the information and consultation procedure carried out in accordance with these Regulations.^F43]

[^F43Complaint of failure to inform

19D.—(1)An employee or employees’ representative may present a complaint to the CAC that—

(a)the European Works Council has failed to inform them under regulation 19C of the content or outcome of the information and consultation procedure; or

(b)the information which has been provided by the European Works Council is false or incomplete in a material particular.

(2)Where the CAC finds the complaint well-founded it shall make an order requiring the European Works Council to disclose information to the complainant which order shall specify—

(a)the information in respect of which the CAC finds that the complaint is well-founded and which is to be disclosed to the complainant;

(b)the date (or if more than one, the earliest date) on which the European Works Council refused or failed to disclose information, or disclosed false or incomplete information; and

(c)a date (not less than one week from the date of the order) by which the European Works Council must disclose the information specified in the order.

(3)The CAC shall not find a complaint under this regulation well-founded where it considers that the failure to inform, or the provision of false or incomplete information, resulted from a failure by the central management to provide the members of the European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings (as required by regulation 19A).

(4)A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure to inform, or the provision of false or incomplete information.^F43]

[^F43Links between information and consultation of European Works Council and national employee representation bodies

19E.—(1)Paragraph (2) applies where—

(a)no arrangements to link information and consultation of a European Works Council with information and consultation of national employee representation bodies[^F45were made before exit day^F45] under regulation 17(4)(c), and

(b)there are circumstances likely to lead to substantial changes in work organisation or contractual relations.

(2)Subject to regulation 2(4B), the—

(a)management of every undertaking belonging to the Community-scale group of undertakings;

(b)central management; or

(c)representative agent or the management treated as the central management of the Community-scale undertaking or Community-scale group of undertakings within the meaning of regulation 5(2),

as the case may be, shall ensure that the procedures for informing and consulting the European Works Council and the national employee representation bodies in relation to the substantial changes in work organisation or contractual relations referred to in sub-paragraph (b) of paragraph (1) are linked so as to begin within a reasonable time of each other.

(3)The national employee representation bodies referred to in paragraph (2) are those bodies which are entitled, whether by law, agreement or custom and practice, to be informed and consulted on the substantial changes in work organisation or contractual relations referred to in sub-paragraph (b) of paragraph (1).^F43]

Adaptation

^F4619F. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART VCOMPLIANCE AND ENFORCEMENT

Failure to establish European Works Council or information and consultation procedure_I9

20.[^F47—(A1)In this regulation the central management and the special negotiating body are referred to as “the parties”.^F47]

(1) A complaint may be presented to the [^F48CAC^F48] by a relevant applicant who considers—

(a)that the parties have reached agreement [^F49before exit day^F49] on the establishment of a European Works Council or an information and consultation procedure, or that regulation 18 applies [^F50before exit day^F50] ; and

(b)that, because of a failure of the central management, the European Works Council or information and consultation procedure has not been established at all, or has not been established fully in accordance with the terms of the agreement [^F51made before exit day^F51] under regulation 17 or, as the case may be, in accordance with the provisions of the Schedule.

(2) In this regulation “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management.

(3) In this regulation “relevant applicant” means—

(a)in a case where a special negotiating body exists, the special negotiating body; or

(b)in a case where a special negotiating body does not exist, an employee, employees' representative, or person who was a member of the special negotiating body (if that body existed previously).

(4) Where the [^F48CAC^F48] finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the central management to take such steps as are necessary to establish the European Works Council or information and consultation procedure in accordance with the terms of the agreement [^F52made before exit day^F52] under regulation 17 or, as the case may be, to establish a European Works Council in accordance with the provisions of the Schedule.

(5) The [^F48CAC^F48] shall not find a complaint under this regulation to be well-founded where—

(a)the central management made no application [^F53before exit day^F53] in relation to the request under regulation 10(1), or where the request consisted of separate requests was unable by reason of the time limit in sub-paragraph (a) of that regulation to make an application [^F54before exit day^F54] under the regulation in relation to a particular request, and shows that the request was not a valid request because a requirement of regulation 9(2) or (3) [^F55that applied before exit day^F55] was not satisfied; or

(b)the central management made no application [^F56before exit day^F56] under regulation 10(3) but shows that the obligation in regulation 9(1) did not, for any reason, apply to it on the relevant date.

(6) An order under paragraph (4) shall specify—

(a)the steps which the central management is required to take;

(b)the date of the failure of the central management; and

(c)the period within which the order must be complied with.

[^F57(7)If the Appeal Tribunal makes a decision under paragraph (4) the relevant applicant may, within the period of three months beginning with the date on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.^F57]

[^F58(7A)Where such an application is made, the Appeal Tribunal shall issue a written penalty notice to the central management requiring it to pay a penalty to the Secretary of State in respect of the failure.^F58]

(8) Paragraph [^F59(7A)^F59] shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the central management, that the failure resulted from a reason beyond the central management’s control or that it has some other reasonable excuse for its failure.

(9) Regulation 22 shall apply in respect of a penalty notice issued under this regulation.

(10) No order of the [^F48CAC^F48] under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management.

Disputes about operation of European Works Council or information and consultation procedure_I10

21.[^F60—(1)Where—

(a)a European Works Council or information and consultation procedure has been established [^F61before exit day^F61] under regulation 17; or

(b)a European Works Council has been established [^F62before exit day^F62] by virtue of regulation 18,

a complaint may be presented to the CAC by a relevant applicant where paragraph (1A) applies.^F60]

[^F63(1A)This paragraph applies where a relevant applicant considers that, because of the failure of a defaulter—

(a)the terms of the agreement [^F64made before exit day^F64] under regulation 17 or, as the case may be, the provisions of the Schedule, have not been complied with; or

(b)regulation 18A has not been complied with, or the information which has been provided by the management under regulation 18A is false or incomplete in a material particular.

(1B)A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure or non-compliance.^F63]

(2) In this regulation, “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management.

(3) In this regulation “relevant applicant” means—

(a)in the case of a failure concerning a European Works Council, either the central management or the European Works Council; or

(b)in the case of a failure concerning an information and consultation procedure, either the central management or any one or more of the information and consultation representatives,

and “defaulter” means the persons mentioned in sub-paragraph (a) or (b) against whom the complaint is presented.

(4) Where the [^F65CAC^F65] finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with the terms of the agreement [^F66made before exit day^F66] under regulation 17 or, as the case may be, the provisions of the Schedule.

(5) An order made under paragraph (4) shall specify—

(a)the steps which the defaulter is required to take;

(b)the date of the failure; and

(c)the period within which the order must be complied with.

(6) If the [^F65CAC^F65] makes a decision under paragraph (4) and the defaulter in question is the central management[^F67the relevant applicant may, within the period of three months beginning with the date on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.^F67]

[^F68(6A)Where such an application is made, the Appeal Tribunal shall issue a written penalty notice to the central management requiring it to pay a penalty to the Secretary of State in respect of the failure.^F68]

(7) Paragraph [^F69(6A)^F69] shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the central management, that the failure resulted from a reason beyond the central management’s control or that it has some other reasonable excuse for its failure.

(8) Regulation 22 shall apply in respect of a penalty notice issued under this regulation.

(9) No order of the [^F65CAC^F65] under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management.

[^F70Disputes about failures of management

21A.—(1)A complaint may be presented to the CAC by a relevant applicant who considers that—

^F71(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)because of the failure of a defaulter, the members of the European Works Council have not been provided with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings in accordance with regulation 19A;

(c)because of the failure of a defaulter, ^F72... a member of the European Works Council has not been provided with the means required to undertake the training referred to in regulation 19B; or

(d)regulation 19E(2) applies and that, because of the failure of a defaulter, the European Works Council and the national employee representation bodies have not been informed and consulted in accordance with that regulation.

(2)A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure.

(3)Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with regulation ^F73... 19A, 19B or 19E(2), as the case may be.

(4)An order made under paragraph (3) shall specify—

(a)the steps which the defaulter is required to take;

(b)the date of the failure; and

(c)the period within which the order must be complied with.

(5)If the CAC makes a decision under paragraph (3), the relevant applicant may, within the period of three months beginning with the date on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.

(6)Where such an application is made, the Appeal Tribunal shall issue a written penalty notice to the defaulter requiring it to pay a penalty to the Secretary of State in respect of the failure.

(7)Paragraph (6) shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the defaulter, that the failure resulted from a reason beyond the defaulter’s control or that it has some other reasonable excuse for its failure.

(8)Regulation 22 shall apply to a penalty notice issued under this regulation.

(9)No order of the CAC under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management.

(10)In this regulation—

(a)“defaulter” means, as the case may be—

(i)the management of any undertaking belonging to the Community-scale group of undertakings;

(ii)the central management; or

(iii)the representative agent or the management treated as the central management of the Community-scale undertaking or Community-scale group of undertakings within the meaning of regulation 5(2);

(b)“failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management;

(c)“relevant applicant” means—

^F74(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)for a complaint in relation to regulation 19A, a member of the European Works Council;

(iii)for a complaint in relation to regulation 19B, ^F75... a member of the European Works Council;

(iv)for a complaint in relation to regulation 19E(2), a member of the European Works Council, a national employee representation body, an employee, or an employees’ representative.^F70]

Penalties_I11

22.—(1) A penalty notice issued under [^F76regulation 20, 21 or 21A^F76] shall specify—

(a)the amount of the penalty which is payable;

(b)the date before which the penalty must be paid; and

(c)the failure and period to which the penalty relates.

(2) No penalty set by the Appeal Tribunal under this regulation may exceed [^F77£100,000^F77] .

(3) When setting the amount of the penalty, the Appeal Tribunal shall take into account—

(a)the gravity of the failure;

(b)the period of time over which the failure occurred;

(c)the reason for the failure;

(d)the number of employees affected by the failure; and

(e)the number of employees of the Community-scale undertaking or Community-scale group of undertakings in the [^F2Relevant States^F2] .

(4) The date specified under paragraph (1)(b) above must not be earlier than the end of the period within which an appeal against a decision or order made by the [^F78CAC^F78] under [^F76regulation 20, 21 or 21A^F76] may be made.

(5) If the specified date in a penalty notice has passed and—

(a)the period during which an appeal may be made has expired without an appeal having been made; or

(b)such an appeal has been made and determined,

the Secretary of State may recover from the central management, as a civil debt due to him, any amount payable under the penalty notice which remains outstanding.

(6) The making of an appeal suspends the effect of a penalty notice.

[^F79(7)Any sums received by the Secretary of State, or in Northern Ireland the Department for Employment and Learning, under regulation 20, 21 or 21A or this regulation shall be paid into, respectively, the Consolidated Fund or the Consolidated Fund of Northern Ireland.^F79]

PART VICONFIDENTIAL INFORMATION

Breach of statutory duty_I12

23.—(1) A person who is or at any time was—

(a)a member of a special negotiating body or a European Works Council;

(b)an information and consultation representative; or

(c)an expert assisting a special negotiating body, a European Works Council or its select committee, or information and consultation representatives,

shall not disclose any information or document which is or has been in his possession by virtue of his position as described in sub-paragraph (a), (b) or (c) of this paragraph, which the central management has entrusted to him on terms requiring it to be held in confidence.

(2) In this regulation and in regulation 24, a person specified in paragraph (1)(a), (b) or (c) of this regulation is referred to as a “recipient”.

(3) The obligation to comply with paragraph (1) is a duty owed to the central management, and a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).

(4) Paragraph (3) shall not affect the liability which any person may incur, nor affect any right which any person may have, apart from paragraph (3).

(5) No action shall lie under paragraph (3) where the recipient reasonably believed the disclosure to be a “protected disclosure” within the meaning given to that expression by section 43A of the 1996 Act(8) or, as the case may be, Article 67A of the 1996 Order(9).

(6) A recipient whom the central management (which is situated in the United Kingdom) has entrusted with any information or document on terms requiring it to be held in confidence may apply to the CAC for a declaration as to whether it was reasonable for the central management to impose such a requirement.

(7) If the CAC considers that the disclosure of the information or document by the recipient would not, or would not be likely to, prejudice or cause serious harm to the undertaking, it shall make a declaration that it was not reasonable for the central management to require the recipient to hold the information or document in confidence.

(8) If a declaration is made under paragraph (7), the information or document shall not at any time thereafter be regarded as having been entrusted to the recipient who made the application under paragraph (6), or to any other recipient, on terms requiring it to be held in confidence.

Withholding of information by central management_I13

24.—(1) The central management is not required to disclose any information or document to a recipient when the nature of the information or document is such that, according to objective criteria, the disclosure of the information or document would seriously harm the functioning of, or would be prejudicial to, the undertaking or group of undertakings concerned.

(2) Where there is a dispute between the central management and a recipient as to whether the nature of the information or document which the central management has failed to provide is such as is described in paragraph (1), the central management or a recipient may apply to the CAC for a declaration as to whether the information or document is of such a nature.

(3) If the CAC makes a declaration that the disclosure of the information or document in question would not, according to objective criteria, seriously harm the functioning of, or be prejudicial to, the undertaking or group of undertakings concerned, the CAC shall order the central management to disclose the information or document.

(4) An order under paragraph (3) above shall specify—

(a)the information or document to be disclosed;

(b)the recipient or recipients to whom the information or document is to be disclosed;

(c)any terms on which the information or document is to be disclosed; and

(d)the date before which the information or document is to be disclosed.

PART VIIPROTECTIONS FOR MEMBERS OF A EUROPEAN WORKS COUNCIL, ETC.

Right to time off for members of a European Works Council, etc._I14

25.—(1) An employee who is—

^F80(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a member of a European Works Council;

(c)an information and consultation representative; or

(d)a candidate in an election in which any person elected will, on being elected, be such a member or representative,

is entitled to be permitted by his employer to take reasonable time off during the employee’s working hours in order to perform his functions as such a member, representative or candidate.

[^F81(1A)An employer shall permit an employee who is—

^F82(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)a member of a European Works Council,

to take reasonable time off during the employee’s working hours in order to undertake the training referred to in regulation 19B.^F81]

(2) For the purposes of this regulation the working hours of an employee shall be taken to be any time when, in accordance with his contract of employment, the employee is required to be at work.

Right to remuneration for time off under regulation 25_I15

26.—(1) An employee who is permitted to take time off under regulation 25 is entitled to be paid remuneration by his employer for the time taken off at the appropriate hourly rate.

(2) Chapter II of Part XIV of the 1996 Act (a week’s pay) and, in relation to Northern Ireland, Chapter IV of Part I of the 1996 Order shall apply in relation to this regulation as they apply, respectively, in relation to section 62 of the 1996 Act and Article 90 of the 1996 Order.

(3) The appropriate hourly rate, in relation to an employee, is the amount of one week’s pay divided by the number of normal working hours in a week for that employee when employed under the contract of employment in force on the day when the time is taken.

(4) But where the number of normal working hours differs from week to week or over a longer period, the amount of one week’s pay shall be divided instead by—

(a)the average number of normal working hours calculated by dividing by twelve the total number of the employee’s normal working hours during the period of twelve weeks ending with the last complete week before the day on which the time off is taken; or

(b)where the employee has not been employed for a sufficient period to enable the calculation to be made under sub-paragraph (a), a number which fairly represents the number of normal working hours in a week having regard to such of the considerations specified in paragraph (5) as are appropriate in the circumstances.

(5) The considerations referred to in paragraph (4)(b) are—

(a)the average number of normal working hours in a week which the employee could expect in accordance with the terms of his contract; and

(b)the average number of normal working hours of other employees engaged in relevant comparable employment with the same employer.

(6) A right to any amount under paragraph (1) does not affect any right of an employee in relation to remuneration under his contract of employment (“contractual remuneration”).

(7) Any contractual remuneration paid to an employee in respect of a period of time off under regulation 25 goes towards discharging any liability of the employer to pay remuneration under paragraph (1) in respect of that period, and, conversely, any payment of remuneration under paragraph (1) in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period.

Right to time off: complaints to tribunals_I16

27.—(1) An employee may present a complaint, in Great Britain to an employment tribunal and in Northern Ireland to an industrial tribunal, that his employer—

(a)has unreasonably refused to permit him to take time off as required by regulation 25; or

(b)has failed to pay the whole or any part of any amount to which the employee is entitled under regulation 26.

(2) A tribunal shall not consider a complaint under this regulation unless it is presented—

(a)before the end of the period of three months beginning with the day on which the time off was taken or on which it is alleged the time off should have been permitted; or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

[^F83(2A)Regulation 27A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of paragraph (2).^F83]

[^F84(2B)Regulation 27B (extension of time limit to facilitate conciliation before institution of proceedings in Northern Ireland) applies for the purposes of paragraph (2).^F84]

(3) Where a tribunal finds a complaint under this regulation well-founded, the tribunal shall make a declaration to that effect.

(4) If the complaint is that the employer has unreasonably refused to permit the employee to take time off, the tribunal shall also order the employer to pay to the employee an amount equal to the remuneration to which he would have been entitled under regulation 26 if the employer had not refused.

(5) If the complaint is that the employer has failed to pay the employee the whole or part of any amount to which he is entitled under regulation 26, the tribunal shall also order the employer to pay to the employee the amount which it finds due to him.

[^F85Extension of time limit to facilitate conciliation before institution of proceedings

27A.—(1)In this regulation—

(a)Day A is the day on which the worker concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b)Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.

(2)In working out when the time limit set by regulation 27(2)(a) expires the period beginning with the day after Day A and ending with Day B is not to be counted.

(3)If the time limit set by regulation 27(2)(a) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

(4)The power conferred on the employment tribunal by regulation 27(2)(b) to extend the time limit set by paragraph (2)(a) of that regulation is exercisable in relation to that time limit as extended by this regulation.^F85]

[^F86Extension of time limit to facilitate conciliation before institution of proceedings in Northern Ireland

27B.—(1)In this regulation—

(a)Day A is the day on which the worker concerned complies with the requirement in paragraph (1) of Article 20A of the Industrial Tribunals (Northern Ireland) Order 1996 (requirement to contact Labour Relations Agency before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b)Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under paragraph (11) of that Article) the certificate issued under paragraph (4) of that Article.

(2)In working out when the three month time limit set by regulation 27(2)(a) expires the period beginning with the day after Day A and ending with Day B is not to be counted.

(3)If the three month time limit set by regulation 27(2)(a) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

(4)The power conferred on the industrial tribunal by regulation 27(2)(b) to extend the three month time limit set by paragraph (2)(a) of that regulation is exercisable in relation to that time limit as extended by this regulation.^F86]

Unfair dismissal_I17

28.—(1) An employee who is dismissed and to whom paragraph (2) or (5) applies shall be regarded, if the reason (or, if more than one, the principal reason) for the dismissal is a reason specified in, respectively, paragraph (3) or (6), as unfairly dismissed for the purposes of Part X of the 1996 Act and of Part XI of the 1996 Order.

(2) This paragraph applies to an employee who is—

(a)a member of a special negotiating body;

(b)a member of a European Works Council;

(c)an information and consultation representative; or

(d)a candidate in an election in which any person elected will, on being elected, be such a member or representative.

(3) The reason is that—

(a)the employee performed any functions or activities as such a member, representative or candidate; or

(b)the employee or a person acting on his behalf made a request to exercise an entitlement conferred on the employee by regulation 25 or 26;

or proposed to do so.

(4) The reason in paragraph (3)(a) does not apply where the reason (or principal reason) for the dismissal is that in the performance, or purported performance, of the employee’s functions or activities he has disclosed any information or document in breach of the duty in regulation 23(1), unless the employee reasonably believed the disclosure to be a “protected disclosure” within the meaning given to that expression by section 43A of the 1996 Act or, as the case may be, by Article 67A of the 1996 Order.

(5) This paragraph applies to any employee whether or not he is an employee to whom paragraph (2) applies.

(6) The reasons are that the employee—

(a)took, or proposed to take, any proceedings before an employment tribunal or industrial tribunal to enforce a right or secure an entitlement conferred on him by these Regulations;

(b)exercised, or proposed to exercise, any entitlement to apply or complain to the Appeal Tribunal or the CAC, or in Northern Ireland [^F87the High Court or^F87] the Industrial Court, conferred by these Regulations;

(c)requested, or proposed to request, information in accordance with regulation 7;

(d)acted with a view to securing that a special negotiating body, a European Works Council or an information and consultation procedure did or did not come into existence;

(e)indicated that he supported or did not support the coming into existence of a special negotiating body, a European Works Council or an information and consultation procedure;

(f)stood as a candidate in an election in which any person elected would, on being elected, be a member of a special negotiating body or of a European Works Council or an information and consultation representative;

(g)influenced or sought to influence the way in which votes were to be cast by other employees in a ballot arranged under these Regulations;

(h)voted in such a ballot;

(i)expressed doubts, whether to a ballot supervisor or otherwise, as to whether such a ballot had been properly conducted; or

(j)proposed to do, failed to do, or proposed to decline to do, any of the things mentioned in sub-paragraphs (d) to (i).

(7) It is immaterial for the purposes of paragraph (6)(a)—

(a)whether or not the employee has the right; or

(b)whether or not the right has been infringed;

but for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.

Subsidiary provisions relating to unfair dismissal: Great Britain_I18

29.—(1) In section 105 of the 1996 Act (redundancy as unfair dismissal) in subsection (1)(c) (which requires one of a specified group of subsections to apply for a person to be treated as unfairly dismissed)(10) there shall be inserted “or (7D)” immediately before “applies” and after subsection (7C) there shall be inserted—

“(7D)This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999(read with paragraphs (4) and (7) of that regulation).”.

(2) In section 108(11) of the 1996 Act (exclusion of right: qualifying period of employment) in subsection (3) (cases where no qualifying period of employment is required)(12) the word “or” at the end of paragraph (gh) shall be omitted and after paragraph (h) there shall be inserted—

“or

(hh)paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999(read with paragraphs (4) and (7) of that regulation) applies.”.

(3) In section 109 of the 1996 Act (exclusion of right: upper age limit) in subsection (2) (cases where upper age limit does not apply)(13) the word “or” at the end of paragraph (gh) shall be omitted and after paragraph (h) there shall be inserted—

“or

(hh)paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999(read with paragraphs (4) and (7) of that regulation) applies.”.

Subsidiary provisions relating to unfair dismissal: Northern Ireland_I19

30.—(1) In Article 137(14) of the 1996 Order (redundancy as unfair dismissal) in paragraph (1)(c) (which requires one of a specified group of paragraphs to apply for a person to be treated as unfairly dismissed) for “(7A)” there shall be substituted “(7B)” and after paragraph (7A) there shall be inserted—

“(7B)This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one specified in paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999(read with paragraphs (4) and (7) of that regulation).”.

(2) In Article 140(15) of the 1996 Order (exclusion of right: qualifying period of employment) in paragraph (3) (cases where no qualifying period of employment is required)(16) the word “or” at the end of sub-paragraph (h) shall be omitted and after sub-paragraph (j) there shall be inserted—

“or

(k)paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999(read with paragraphs (4) and (7) of that regulation) applies.”.

(3) In Article 141 of the 1996 Order (exclusion of right: upper age limit) in paragraph (2) (cases where upper age limit does not apply)(17) the word “or” at the end of sub-paragraph (h) shall be omitted and after sub-paragraph (j) there shall be inserted—

“or

(k)paragraph (3) or (6) of regulation 28 of the Transnational Information and Consultation of Employees Regulations 1999(read with paragraphs (4) and (7) of that regulation) applies.”.

Detriment_I20

31.—(1) An employee to whom paragraph (2) or (5) applies has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer, done on a ground specified in, respectively, paragraph (3) or (6).

(2) This paragraph applies to an employee who is—

(a)a member of a special negotiating body,

(b)a member of a European Works Council,

(c)an information and consultation representative, or

(d)a candidate in an election in which any person elected will, on being elected, be such a member or representative.

(3) The ground is that—

(a)the employee performed any functions or activities as such a member, representative or candidate, or

(b)the employee or a person acting on his behalf made a request to exercise an entitlement conferred on the employee by regulation 25 or 26;

or proposed to do so.

(4) The ground in paragraph (3)(a) does not apply where the ground for the subjection to detriment is that in the performance, or purported performance, of the employee’s functions or activities he has disclosed any information or document in breach of the duty in regulation 23(1), unless the employee reasonably believed the disclosure to be a “protected disclosure” within the meaning given to that expression by section 43A of the 1996 Act or, as the case may be, Article 67A of the 1996 Order.

(5) This paragraph applies to any employee, whether or not he is an employee to whom paragraph (2) applies.

(6) The grounds are that the employee—

(a)took, or proposed to take, any proceedings before an employment tribunal or industrial tribunal to enforce a right or secure an entitlement conferred on him by these Regulations;

(b)exercised, or proposed to exercise, any entitlement to apply or complain to the Appeal Tribunal, the CAC, or in Northern Ireland [^F88the High Court or^F88] the Industrial Court, conferred by these Regulations;

(c)requested, or proposed to request, information in accordance with regulation 7;

(d)acted with a view to securing that a special negotiating body, a European Works Council or an information and consultation procedure did or did not come into existence;

(e)indicated that he supported or did not support the coming into existence of a special negotiating body, a European Works Council or an information and consultation procedure;

(f)stood as a candidate in an election in which any person elected would, on being elected, be a member of a special negotiating body or of a European Works Council or an information and consultation representative;

(g)influenced or sought to influence the way in which votes were to be cast by other employees in a ballot arranged under these Regulations;

(h)voted in such a ballot;

(i)expressed doubts, whether to a ballot supervisor or otherwise, as to whether such a ballot had been properly conducted; or

(j)proposed to do, failed to do, or proposed to decline to do, any of the things mentioned in sub-paragraphs (d) to (i).

(7) It is immaterial for the purposes of paragraph (6)(a)—

(a)whether or not the employee has the right; or

(b)whether or not the right has been infringed;

but for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.

Detriment: enforcement and subsidiary provisions_{cross-notesI21}

32.—(1) An employee may present a complaint, in Great Britain to an employment tribunal and in Northern Ireland to an industrial tribunal, that he has been subjected to a detriment in contravention of regulation 31.

(2) The provisions of—

(a)sections 48(2) to (4) and 49 of the 1996 Act(18) (complaints to employment tribunals and remedies); or

(b)in relation to Northern Ireland, Articles 71(2) to (4) and 72 of the 1996 Order(19) (complaints to industrial tribunals and remedies);

shall apply in relation to a complaint under this regulation as they apply in relation to a complaint under section 48 of that Act or Article 71 of that Order (as the case may be), but taking references in those provisions to the employer as references to the employer within the meaning of regulation 31(1) above.

(3) Regulation 31 does not apply where the detriment in question amounts to dismissal.

Conciliation_I22

33.—(1) In section 18 of the Employment Tribunals Act 1996 (conciliation) in subsection (1) (which specifies the proceedings and claims to which the section applies)(20)—

(a)at the end of paragraph (f), the word “or” shall be omitted; and

(b)after paragraph (ff), there shall be inserted—

“or

(g)under regulation 27 or 32 of the Transnational Information and Consultation of Employees Regulations 1999.”.

(2) In Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 (conciliation) in paragraph (1) (which specifies the proceedings and claims to which the Article app1ies)(21)—

(a)at the end of sub-paragraph (e), the word “or” shall be omitted; and

(b)after sub-paragraph (f) there shall be inserted—

“or

(g)under regulation 27 or 32 of the Transnational Information and Consultation of Employees Regulations 1999.”.

PART VIIIMISCELLANEOUS

The Appeal Tribunal, Industrial Court, CAC, ACAS and the Labour Relations Agency

Appeal Tribunal: jurisdiction_I23

34.—(1) Any proceedings before the Appeal Tribunal arising under these Regulations, other than proceedings before the Appeal Tribunal under paragraph (i) of section 21(1) of the Employment Tribunals Act 1996(22), shall—

(a)where the central management is situated in England and Wales, be in England and Wales;

(b)where the central management is situated in Scotland, be in Scotland.

^F89(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F90(3) Paragraph (1) shall apply to proceedings before the Appeal Tribunal arising under ... paragraph 4 of the Schedule as if for the words “central management” there were substituted the words “UK management”.

Appeal Tribunal: proceedings_I24

35.—(1)The Employment Tribunals Act 1996 shall be amended as follows.

(2) At the end of section 20 (the Appeal Tribunal), insert—

“(4)Subsection (2) is subject to regulation 34 of the Transnational Information and Consultation of Employees Regulations 1999.”.

(3) In section 21 (jurisdiction of the Appeal Tribunal), in subsection (1) (which specifies the proceedings and claims to which the section applies)—

(a)at the end of paragraph (ff), the word “or” shall be omitted; and

(b)in paragraph (g), for “or under the Working Time Regulations 1998” there shall be substituted—

“,

(h)the Working Time Regulations 1998, or

(i)the Transnational Information and Consultation of Employees Regulations 1999.”.

(4) In section 30 (Appeal Tribunal procedure rules), in paragraph (b) of subsection (2)(23), after “any application” insert “or complaint”.

Industrial Court: jurisdiction_I25

36.[^F91—(1)Where the central management is situated in Northern Ireland, any complaint under regulation 19D, 20, 21 or 21A shall be presented to the Industrial Court instead of to the CAC and references in those regulations and in regulation 22 to the CAC shall be read as references to the Industrial Court and references in regulations 20, 21, 21A and 22 to the Appeal Tribunal shall be read as references to the High Court in Northern Ireland.^F91]

^F92(2) Where the central management is situated in Northern Ireland, any application under regulation ... 23 or 24 shall be made to the Industrial Court instead of to the CAC, and references in those regulations to the CAC shall be read as references to the Industrial Court.

^F93(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F94,F95(4) Where the UK management is situated in Northern Ireland, any complaint under ... paragraph 4 of the Schedule shall be presented to the Industrial Court instead of to the CAC, and references in ... that paragraph to the CAC shall be read as references to the Industrial Court.

Industrial Court: proceedings_I26

37.—(1) Where under these Regulations a person presents a complaint or makes an application to the Industrial Court, the complaint or application must be in writing and in such form as the Court may require.

(2) In its consideration of an application or complaint under these Regulations, the Industrial Court shall make such enquiries as it sees fit and give any person whom it considers has a proper interest in the application or complaint an opportunity to be heard.

(3) A decision, declaration or order made by the Industrial Court under these Regulations—

(a)must be in writing and state the reasons for the Court’s findings; and

(b)may be relied on and enforced as if it were a decision, declaration or order made by the High Court in Northern Ireland.

(4) An appeal lies to the [^F96High Court^F96] in Northern Ireland on any question of law arising from a decision, declaration or order of, or arising in any proceedings before, the Industrial Court under these Regulations.

CAC: proceedings_I27

38.—(1) Where under these Regulations a person presents a complaint or makes an application to the CAC the complaint or application must be in writing and in such form as the CAC may require.

(2) In its consideration of an application or complaint under these Regulations, the CAC shall make such enquiries as it sees fit and give any person whom it considers has a proper interest in the application or complaint an opportunity to be heard.

(3) Where the central management is situated in England and Wales—

(a)a declaration or order made by the CAC under these Regulations may be relied on as if it were a declaration or order made by the High Court in England and Wales; and

(b)an order made by the CAC under these Regulations may be enforced in the same way as an order of the High Court in England and Wales.

(4) Where the central management is situated in Scotland—

(a)a declaration or order made by the CAC under these Regulations may be relied on as if it were a declaration or order made by the Court of Session; and

(b)an order made by the CAC under these Regulations may be enforced in the same way as an order of the Court of Session.

^F97(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F98(6) Paragraphs (3) and (4) shall apply, as appropriate, to a declaration or order made under ... paragraph 4 of the Schedule as if for the words “central management” there were substituted the words “UK management”.

(7) A declaration or order made by the CAC under these Regulations must be in writing and state the reasons for the CAC’s findings.

(8) An appeal lies to the Appeal Tribunal on any question of law arising from any declaration or order of, or arising in any proceedings before, the CAC under these Regulations.

ACAS and the Labour Relations Agency_I28

^F9939.—(1) If on receipt of an application or complaint under these Regulations the CAC, ... or as the case may be the Industrial Court, is of the opinion that it is reasonably likely to be settled by conciliation, it shall refer the application or complaint to ACAS or to the Labour Relations Agency and shall notify the applicant or complainant and any persons whom it considers have a proper interest in the application or complaint accordingly, whereupon ACAS, or as the case may be the Labour Relations Agency, shall seek to promote a settlement of the matter.

^F99(2) If an application or complaint so referred is not settled or withdrawn and ACAS, or as the case may be the Labour Relations Agency, is of the opinion that further attempts at conciliation are unlikely to result in a settlement, it shall inform the CAC, ... or as the case may be the Industrial Court, of its opinion.

^F99,F99(3) If the application or complaint is not referred to ACAS or to the Labour Relations Agency, or if it is so referred, on ACAS, or as the case may be the Labour Relations Agency, informing the CAC, ... or as the case may be the Industrial Court, of its opinion that further attempts at conciliation are unlikely to result in a settlement, the CAC, ... or as the case may be the Industrial Court, shall proceed to hear and determine the application or complaint.

Restrictions on contracting out

Restrictions on contracting out: general_I29

40.—(1) Any provision in any agreement (whether an employee’s contract or not) is void in so far as it purports—

(a)to exclude or limit the operation of any provision of these Regulations other than a provision of Part VII; or

(b)to preclude a person from bringing any proceedings before the Appeal Tribunal or the CAC, or in Northern Ireland [^F100the High Court or^F100] the Industrial Court, under any provision of these Regulations other than a provision of Part VII.

(2) Paragraph (1) does not apply to any agreement to refrain from continuing any proceedings referred to in sub-paragraph (b) of that paragraph made after the proceedings have been instituted.

Restrictions on contracting out: Part VII_I30

41.—(1) Any provision in any agreement (whether an employee’s contract or not) is void in so far as it purports—

(a)to exclude or limit the operation of any provision of Part VII of these Regulations; or

(b)to preclude a person from bringing any proceedings before an employment tribunal, or in Northern Ireland an industrial tribunal, under that Part.

(2) Paragraph (1) does not apply to any agreement to refrain from instituting or continuing proceedings before an employment tribunal or, in Northern Ireland, an industrial tribunal where—

(a)a conciliation officer has taken action under [^F101any of sections 18A to 18C^F101] of the Employment Tribunals Act 1996 (conciliation); or

(b)in relation to Northern Ireland, the Labour Relations Agency has taken action under [^F102any of Articles 20A to 20C^F102] of the Industrial Tribunals (Northern Ireland) Order 1996 (conciliation).

(3) Paragraph (1) does not apply to any agreement to refrain from instituting or continuing before an employment tribunal, or in Northern Ireland an industrial tribunal, proceedings within—

(a)[^F103section 18(1)(k)^F103] of the Employment Tribunals Act 1996 (proceedings under these Regulations where conciliation is available); or

(b)in relation to Northern Ireland, Article 20(1)(g) of the Industrial Tribunals (Northern Ireland) Order 1996,

if the conditions regulating [^F104settlement^F104] agreements under these Regulations are satisfied in relation to the agreement.

(4) For the purposes of paragraph (3) the conditions regulating [^F105settlement^F105] agreements are that—

(a)the agreement must be in writing;

(b)the agreement must relate to the particular proceedings;

(c)the employee must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an employment tribunal or, in Northern Ireland, an industrial tribunal;

(d)there must be in force, when the adviser gives the advice, a contract of insurance, or an indenmity provided for members of a profession or professional body, covering the risk of a claim by the employee in respect of loss arising in consequence of the advice;

(e)the agreement must identify the adviser; and

(f)the agreement must state that the conditions in sub-paragraphs (a) to (e) are satisfied.

(5) A person is a relevant independent adviser for the purposes of paragraph (4)(c)—

(a)if he is a qualified lawyer;

(b)if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union; or

(c)if he works at an advice centre (whether as an employee or as a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre.

(6) But a person is not a relevant independent adviser for the purposes of paragraph (4)(c) in relation to the employee—

(a)if he is, is employed by or is acting in the matter for the employer or an associated employer;

(b)in the case of a person within paragraph (5)(b) or (c), if the trade union or advice centre is the employer or an associated employer; or

(c)in the case of a person within paragraph (5)(c), if the employee makes a payment for the advice received from him.

(7) In paragraph (5)(a), “qualified lawyer” means—

(a)as respects England and Wales, [^F106a person who, for the purposes of the Legal Services Act 2007), is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act)^F106] ;

(b)as respects Scotland, an advocate (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate; and

(c)as respects Northern Ireland, a barrister (whether in practice as such or employed to give legal advice) or a solicitor who holds a practising certificate.

[^F107(7A)A person shall be treated as being a qualified lawyer within paragraph (7)(a) if he is a Fellow of the Institute of Legal Executives [^F108practising in a solicitor’s practice (including a body recognised under section 9 of the Administration of Justice Act 1985)^F108].^F107]

(8) For the purposes of paragraph (6) any two employers shall be treated as associated if—

(a)one is a company of which the other (directly or indirectly) has control; or

(b)both are companies of which a third person (directly or indirectly) has control;

and “associated employer” shall be construed accordingly.

[^F109(9)In the application of this regulation in relation to Northern Ireland, paragraphs (3) and (4) above shall have effect as if for “settlement agreements” there were substituted “compromise agreements.^F109]

PART IXEXCEPTIONS

Article 6 agreements_I31

42.—(1) Where, in accordance with regulation 5, the central management is situated in the United Kingdom and, immediately before the date on which these Regulations come into force an Article 6 agreement is in force, those provisions referred to in regulation 4(1) which apply only where the central management is situated in the United Kingdom shall only apply if—

(a)the parties to the Article 6 agreement agree or have agreed (whether before or after these Regulations come into force) to the effect that the provisions of these Regulations which would have applied in respect of the agreement had it been made [^F110before exit day^F110] under regulation 17 should apply in respect of the Article 6 agreement; or

(b)the Article 6 agreement ceases to have effect.

(2) In paragraph (1) and regulation 47 “Article 6 agreement” means an agreement for the establishment of a European Works Council or information and consultation procedure made under the provisions of the law or practice of a [^F3Relevant State^F3] other than the United Kingdom which are designed to give effect to Article 6 of the Transnational Information and Consultation Directive.

(3) Where paragraph (1)(a) applies these Regulations shall apply as if the Article 6 agreement had been made [^F111before exit day^F111] under regulation 17.

Article 7 European Works Councils_I32

43.—(1) Where, in accordance with regulation 5, the central management is situated in the United Kingdom, and immediately before the date these Regulations come into force an Article 7 European Works Council exists, those provisions referred to in regulation 4(1) which apply only where the central management is situated in the United Kingdom shall only apply if—

(a)the central management and European Works Council agree or have agreed (whether before or after these Regulations come into force) to the effect that the provisions of these Regulations which would have applied in respect of the European Works Council had it been made [^F112before exit day^F112] , by virtue of regulation 18, under these Regulations should apply in respect of the Article 7 European Works Council; or

(b)the European Works Council decides, under the provisions of the law or practice of a [^F3Relevant State^F3] other than the United Kingdom which are designed to give effect to paragraph 1(f) of the Annex to the Transnational Information and Consultation Directive, to negotiate an agreement for a European Works Council or an information and consultation procedure.

(2) In paragraph (1) and regulations 47 and 48 “Article 7 European Works Council” means a European Works Council established under the provisions of the law or practice of a [^F3Relevant State^F3] other than the United Kingdom which are designed to give effect to Article 7 of, and the Annex to, the Transnational Information and Consultation Directive.

(3) Where paragraph (1)(a) or (b) applies these Regulations shall apply, subject to the modifications referred to in paragraphs (4) to (6) of regulation 48, as if the Article 7 European Works Council had been established [^F113before exit day^F113] , by virtue of regulation 18, under these Regulations and, in a case where paragraph (1)(b) applies, as if a decision had been taken under paragraph 10(2) 0f the Schedule.

[^F114Article 3 agreements

44.—(1)^F115... None of the obligations in these Regulations, ^F116... applies to a Community-scale undertaking or Community-scale group of undertakings where the conditions specified in Article 3 of the Extension Directive are satisfied.

(2)The conditions referred to in paragraph (1) are that—

(a)an agreement is in force which—

(i)was in force immediately before 16th December 1999;

(ii)covers the entire workforce in the [^F2Relevant States^F2]; and

(iii)provides for the transnational information and consultation of employees, and

(b)the obligation (whether arising under these Regulations or under the national law or practice of any other [^F3Relevant State^F3]) to initiate negotiations for the establishment of a European Works Council or information and consultation procedure would, but for this paragraph, have applied to the Community-scale undertaking or Community-scale group of undertakings solely as a result of the Extension Directive.

(3)If an agreement when taken together with one or more other agreements satisfies the requirements specified in paragraph (2)(a), that agreement, when taken together with such other agreements, shall be treated as an agreement for the purposes of that paragraph.

^F117(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F117(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F117(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F117(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F114]

Article 13 agreements

[^F11445.—(1)^F118... None of the obligations in these Regulations, ^F119... applies to a Community-scale undertaking or Community-scale group of undertakings where the conditions specified in Article 13 of the Transnational Information and Consultation Directive are satisfied.

(2)The conditions referred to in paragraph (1) are that an agreement is in force which—

(a)was in force immediately before whichever is the earlier of 23rd September 1996 and the day after the date on which the national law or practice giving effect to the Transnational Information and Consultation Directive came into force in the [^F3Relevant State^F3] (other than the United Kingdom) whose national law governs the agreement;

(b)covers the entire workforce in the [^F2Relevant States^F2]; and

(c)provides for the transnational information and consultation of employees.

(3)If an agreement when taken together with one or more other agreements satisfies the requirements specified in paragraph (2), that agreement, when taken together with such other agreements, shall be treated as an agreement for the purposes of that paragraph.

^F120(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F120(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F120(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

^F120(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .^F114]

[^F114Agreements signed or revised on or after 5th June 2009 and before 5th June 2011

45A.—(1)Where the conditions specified in paragraph (2) are satisfied, these Regulations shall apply to a Community-scale undertaking or Community-scale group of undertakings as if the amendments listed—

(a)in paragraph (3) in relation to the 2010 Regulations, and

(b)in paragraph (3A) in relation to the 2019 Regulations,

had not been made.^F121]

(2)The conditions referred to in paragraph (1) are that an agreement is in force which—

(a)establishes a European Works Council or information and consultation procedure[^F122before exit day^F122] under regulation 17 of these Regulations; and

(b)is signed or revised on or after 5th June 2009 and before 5th June 2011.

(3)The amendments referred to in paragraph [^F123(1)(a)^F123] are those made by the following provisions of the 2010 Regulations—

(a)regulation 3, in so far as it inserts the definition of “national employee representation bodies” and paragraphs (4A) and (4B) into regulation 2 of these Regulations;

(b)regulations 5 to 10;

(c)regulation 11, in so far as it inserts regulations 19A, 19B, 19C, 19D and 19E into these Regulations;

(d)regulation 13, in so far as it inserts paragraph (1A)(b) into regulation 21 of these Regulations;

(e)regulation 14, in so far as it inserts regulation 21A(1)(b), (c) and (d) into these Regulations and makes provision for the resolution of complaints in relation to regulations 19A, 19B and 19E(2);

(f)regulation 16;

(g)regulation 23, in so far as it amends regulations 44 and 45 of these Regulations; and

(h)regulations 24 to 29.

[^F124(3A)The amendments referred to in paragraph (1)(b) are those made by paragraphs 14, 15, 20, 21(b), 27 and 28 of Schedule 2 to the 2019 Regulations.^F124]

^F125(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[^F126(5)In this regulation—

(a)“the 2010 Regulations” means the Transnational Information and Consultation of Employees (Amendment) Regulations 2010, and

(b)“the 2019 Regulations” means the Employment Rights (Amendment) (EU Exit) Regulations 2019.^F126,F114]]

Merchant Navy_E1,E2

[^F12746.—(1)Subject to paragraph (2), a member ^F128... of a European Works Council or an information and consultation representative, or an alternate of such member or representative, who is a member of the crew of a seagoing vessel, is entitled to participate in a meeting ^F129... of the European Works Council, or in any other meeting under any procedures established [^F130before exit day^F130] pursuant to regulation 17(3).

(2)A member or representative or alternate referred to in paragraph (1) may only participate in a meeting where that member, representative or alternate is not at sea or in a port in a country other than that in which the shipping company is domiciled, when the meeting takes place.

(3)Paragraph (2) does not apply to—

(a)a ferry worker, or

(b)a person who normally works on voyages the duration of which is less than 48 hours.

(4)The meetings must, where practicable, be scheduled to facilitate the participation of a member, representative or alternate referred to in paragraph (1).

(5)In cases where a member or a representative or alternate referred to in paragraph (1) is unable to attend a meeting, the use of information and communication technology to enable that person’s participation in the meeting must be considered.^F127]

[^F13146A.—(1)These regulations do not apply to [^F132a UK Societas^F132] that is—

(a)a Community-scale undertaking, or

(b)a controlling undertaking of a Community-scale group of undertakings,

except where the special negotiating body has taken the decision referred to in regulation 17 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009(decision not to open, or to terminate, negotiations) (S.I. 2009/2401) or, as the case may be, regulation 17 of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402).

[^F133(2)In this regulation “UK Societas” means a United Kingdom Societas within the meaning of Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company.^F133,F131]]

[^F14546A.—(1)These regulations do not apply to [^F132a UK Societas^F132] that is –

(a)a Community-scale undertaking, or

(b)a controlling undertaking of a Community-scale group of undertakings,

except where the special negotiating body has taken the decision referred to in regulation 30 of the European Public Limited-Liability Company Regulations (Northern Ireland) 2004 (decision not to open, or to terminate, negotiations) or, as the case may be, in regulation 30 of the European Public Limited-Liability Company Regulations 2004.

[^F133(2)In this regulation “UK Societas” means a United Kingdom Societas within the meaning of Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company.^F133,F145]]

[^F13446B.—(1)These regulations do not apply to an SCE that is—

(a)a Community-scale undertaking, or

(b)a controlling undertaking of a Community-scale group of undertakings,

except where the special negotiating body has taken the decision referred to in regulation 19 of, or paragraph 13 of Schedule 1 to, the European Cooperative Society (Involvement of Employees) Regulations 2006(decision not to open, or to terminate, negotiations).

(2)In this regulation an “SCE” means a European Cooperative Society established in accordance with the European Cooperative Society Regulations 2006.^F134]

PART XTRANSITIONALS

Transitionals: special negotiating body

^F13547. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Transitionals: Article 7 European Works Councils_I33

48.—(1) Where, immediately before the date on which these Regulations come into force, a European Works Council has been established under the provisions of the law or practice of a [^F3Relevant State^F3] other than the United Kingdom, which are designed to give effect to Article 7 of, and the Annex to, the Transnational Information and Consultation Directive, paragraphs (2) and (3) shall apply.

(2) Where the central management is situated in the United Kingdom and regulation 43(l)(a) or 43(1)(b) applies these Regulations shall apply with the modifications specified in paragraphs (4) to (6) as if the European Works Council had been established under these Regulations.

(3) Where the central management is not situated in the United Kingdom, or is situated in the United Kingdom but neither regulation 43(1)(a) nor 43(1)(b) applies, the regulations referred to in regulation 4(2) shall apply with the modifications specified in paragraphs (5) and (6) of this regulation.

(4) Paragraph 2 of the Schedule shall apply in respect of the composition of the European Works Council only to the extent that it determines the number of UK members on the European Works Council but shall not affect in any way the number of non-UK members on the European Works Council.

(5) Where, as a result of the implementation of the Extension Directive by a [^F3Relevant State^F3] (including the United Kingdom), there are required to be UK members on the European Works Council and immediately before the date on which these Regulations come into force—

(a)no person has been designated to attend meetings of the European Works Council as a representative of employees in the United Kingdom; or

(b)one or more persons have been designated to attend meetings of the European Works Council as a representative of employees in the United Kingdom,

then in the case mentioned in sub-paragraph (a), the UK members of the European Works Council shall be appointed or elected in accordance with paragraphs 3 to 5 of the Schedule, and in the case mentioned in sub-paragraph (b), the person or persons shall be treated as from the date on which these Regulations come into force as a UK member of the European Works Council who has been elected or appointed in accordance with paragraphs 3 to 5 of the Schedule.

(6) Where the number of persons referred to in paragraph (5)(b) is—

(a)in a case where paragraph 2 of the Schedule applies, less than the number of UK members of the European Works Council required by that paragraph; or

(b)in a case where paragraph 2 of the Schedule does not apply, less than the number of UK members of the European Works Council required by the law or practice of the [^F3Relevant State^F3] under which the European Works Council was established,

the additional number of UK members needed to secure compliance with paragraph 2 or, as the case may be, the law or practice of the [^F3Relevant State^F3] referred to in sub-paragraph (b) of this paragraph shall be elected or appointed in accordance with paragraphs 3 to 5 of the Schedule.

Regulation 18

SCHEDULESUBSIDIARY REQUIREMENTS

Establishment of European Works Council_I34

1. A European Works Council shall be established in the Community-scale undertaking or Community-scale group of undertakings in accordance with the provisions in this Schedule.

Composition of the European Works Council

[^F1362.—(1)The European Works Council shall be constituted in accordance with sub-paragraph (2).

(2)In each [^F3Relevant State^F3] in which employees of a Community-scale undertaking or Community-scale group of undertakings are employed to work, those employees shall elect or appoint one member of the European Works Council for each 10% (or fraction of 10%) which those employees represent of the total number of employees of the Community-scale undertaking or Community-scale group of undertakings employed in those [^F2Relevant States^F2].

(3)The European Works Council shall inform the central management and any more appropriate level of management of the composition of the European Works Council.

(4)To ensure that it can co-ordinate its activities, the European Works Council shall elect from among its members a select committee comprising no more than five members who are to act on behalf of the European Works Council.^F136]

Appointment or election of UK members of the European Works Council_I35

3.—(1) The UK members of the European Works Council must be UK employees and—

(a)in a case where all of those employees are represented by UK employees' representatives, shall be elected or appointed by such employees' representatives;

(b)in a case where not all of those employees are represented by UK employees' representatives, shall be elected by ballot.

(2) For the purposes of this paragraph all of the UK employees are represented by UK employees' representatives if each of the employees referred to in sub-paragraph (1) is a UK employee—

(a)in respect of which an independent trade union is recognised by his employer for the purpose of collective bargaining; or

(b)who has elected or appointed an employees' representative for the purpose of receiving, on the employee’s behalf, information—

(i)which is relevant to the employee’s terms and conditions of employment; or

(ii)about the activities of the undertaking which may significantly affect the employee’s interests

but excluding representatives who are expected to receive information relevant only to a specific aspect of the terms and conditions or interests of the employee, such as health and safety or collective redundancies.

(3) Where sub-paragraph (l)(a) above applies, the election or appointment of members of the European Works Council shall be carried out by whatever method the UK employees' representatives decide.

(4) Where sub-paragraph (l)(b) applies, the UK members of the European Works Council are to be elected by a ballot of the UK employees in accordance with paragraphs 4 and 5.

Ballot arrangements_I36

4.—(1) The UK management must arrange for the holding of a ballot of employees referred to in paragraph 3(4), which satisfies the requirements specified in sub-paragraph (2).

(2) The requirements referred to in sub-paragraph (1) are that—

(a)the ballot of the UK employees must comprise a single ballot, but may instead, if the UK management so decides, comprise separate ballots of employees in such constituencies as the UK management may determine where—

(i)the number of UK members of the European Works Council to be elected is more than one, and

(ii)the UK management considers that if separate ballots were held for those constituencies, the UK members of the European Works Council to be elected would better reflect the interests of the UK employees as a whole than if a single ballot were held;

(b)a UK employee who is an employee of the Community-scale undertaking or the Community-scale group of undertakings on the day on which votes may be cast in the ballot or, if the votes may be cast on more than one day, on the first day of those days is entitled to vote in a ballot of the UK employees;

(c)any UK employee who is an employee of the Community-scale undertaking or Community-scale group of undertakings immediately before the latest time at which a person may become a candidate in the ballot, is entitled to stand in the ballot of the UK employees as a candidate for election as a UK member of the European Works Council;

(d)the UK management must, in accordance with sub-paragraph (6), appoint an independent ballot supervisor to supervise the conduct of the ballot of the UK employees but may instead, where there are to be separate ballots, appoint more than one independent ballot supervisor in accordance with that sub-paragraph, each of whom is to supervise such of the separate ballots as the UK management may determine, provided that each separate ballot is supervised by a supervisor;

(e)after the UK management has formulated proposals as to the arrangements for the ballot of the UK employees and before it has published the final arrangements under paragraph (f) it must, so far as reasonably practicable, consult with the UK employees' representatives on the proposed arrangements for the ballot of the UK employees;

(f)the UK management must publish the final arrangements for the ballot of the UK employees in such manner as to bring them to the attention of, so far as reasonably practicable, the UK employees and the UK employees' representatives.

(3) Any UK employee or UK employees' representative who believes that the arrangements for the ballot of the UK employees are defective may, within a period of 21 days beginning on the date the UK management published the final arrangements under paragraph (f), present a complaint to the CAC.

(4) Where the CAC finds the complaint well-founded it shall make a declaration to that effect and may make an order requiring the UK management to modify the arrangements it has made for the ballot of the UK employees or to satisfy the requirements in paragraph (e) or (f) of sub-paragraph (2).

(5) An order under sub-paragraph (4) shall specify the modifications to the arrangements which the UK management is required to make and the requirements which it must satisfy.

(6) A person is an independent ballot supervisor for the purposes of sub-paragraph (2)(d) if the UK management reasonably believes that he will carry out any functions conferred on him in relation to the ballot competently and has no reasonable grounds for believing that his independence in relation to the ballot might reasonably be called into question.

(7) For the purposes of sub-paragraph (3), the arrangements for the ballot of the UK employees are defective if—

(a)any of the requirements specified in paragraphs (b) to (f) of sub-paragraph (2) is not satisfied; or

(b)in a case where the ballot is to comprise separate ballots, the constituencies determined by the UK management do not reflect adequately the interests of the UK employees as a whole.

Conduct of ballot_I37

5.—(1) The UK management must—

(a)ensure that a ballot supervisor appointed under paragraph 4(2)(d) carries out his functions under this paragraph and that there is no interference with his carrying out of those functions from the UK management, or the central management (where it is not also the UK management); and

(b)comply with all reasonable requests made by a ballot supervisor for the purposes of, or in connection with, the carrying out of those functions.

(2) A ballot supervisor’s appointment shall require that he—

(a)supervises the conduct of the ballot, or the separate ballots he is being appointed to supervise, in accordance with the arrangements for the ballot of the UK employees published by the UK management under paragraph 4(2)(f) or, where appropriate, in accordance with the arrangements as required to be modified by an order made as a result of a complaint presented under paragraph 4(3);

(b)does not conduct the ballot or any of the separate ballots before the UK management has satisfied the requirement specified in paragraph 4(2)(e) and—

(i)where no complaint has been presented under paragraph 4(3), before the expiry of a period of 21 days beginning on the date on which the UK management published its arrangements under paragraph 4(2)(f); or

(ii)where a complaint has been presented under paragraph 4(3), before the complaint has been determined and, where appropriate, the arrangements have been modified as required by an order made as a result of the complaint;

(c)conducts the ballot, or each separate ballot, so as to secure that—

(i)so far as reasonably practicable, those entitled to vote are given the opportunity to vote,

(ii)so far as reasonably practicable, those entitled to stand as candidates are given the opportunity to stand,

(iii)so far as is reasonably practicable, those voting are able to do so in secret, and

(iv)the votes given in the ballot are fairly and accurately counted.

(3) As soon as reasonably practicable after the holding of the ballot, or each separate ballot, the ballot supervisor must publish the results of the ballot in such manner as to make them available to the UK management and, so far as reasonably practicable, the UK employees entitled to vote in the ballot or who stood as candidates in the ballot.

(4) A ballot supervisor shall publish an ineffective ballot report where he considers (whether or not on the basis of representations made to him by another person) that—

(a)any of the requirements referred to in sub-paragraph (2) was not satisfied with the result that the outcome of the ballot would have been different; or

(b)there was interference with the carrying out of his functions or a failure by management to comply with all reasonable requests made by him with the result that he was unable to form a proper judgment as to whether each of the requirements referred to in sub-paragraph (2) was satisfied in relation to the ballot.

(5) Where a ballot supervisor publishes an ineffective ballot report the report must be published within a period of one month commencing on the date on which the ballot supervisor publishes the results of the ballot under sub-paragraph (3).

(6) A ballot supervisor shall publish an ineffective ballot report in such manner as to make it available to the UK management and, so far as reasonably practicable, the UK employees entitled to vote in the ballot or who stood as candidates in the ballot.

(7) Where a ballot supervisor publishes an ineffective ballot report then—

(a)if there has been a single ballot or an ineffective ballot report has been published in respect of every separate ballot, the outcome of the ballot or ballots shall have no effect and the UK management shall again be under the obligation in paragraph 4(1);

(b)if there have been separate ballots and paragraph (a) does not apply—

(i)the UK management shall arrange for the separate ballot or ballots in respect of which an ineffective ballot report was issued to be reheld in accordance with paragraph 4 and this paragraph, and

(ii)no such ballot shall have effect until it has been so reheld and no ineffective ballot report has been published in respect of it.

(8) All costs relating to the holding of a ballot, including payments made to a ballot supervisor for supervising the conduct of the ballot, shall be borne by the central management (whether or not an ineffective ballot report has been made).

Competence of the European Works Council_I38

6.—(1) The competence of the European Works Council shall be limited to information and consultation on the matters which concern the Community-scale undertaking or Community-scale group of undertakings as a whole or at least two of its establishments or group undertakings situated in different [^F2Relevant States^F2] .

(2) In the case of a Community-scale undertaking or Community-scale group of undertakings falling within regulation 5(l)(b) or 5(1)(c), the competence of the European Works Council shall be limited to those matters concerning all of its establishments or group undertakings situated within the [^F2Relevant States^F2] or concerning at least two of its establishments or group undertakings situated in different [^F2Relevant States^F2] .

[^F137(3)Information and consultation of employees shall take place between members of a European Works Council and the most appropriate level of management according to the matters under discussion.^F137]

Information and consultation meetings_I39

7.—(1) Subject to paragraph 8, the European Works Council shall have the right to meet with the central management once a year in an information and consultation meeting, to be informed and consulted, on the basis of a report drawn up by the central management, on the progress of the business of the Community-scale undertaking or Community-scale group of undertakings and its prospects.

(2) The central management shall inform the local managements accordingly.

[^F138(3)The information provided to the European Works Council shall relate in particular to the structure, economic and financial situation, the probable development of the business and of production and sales of the Community-scale undertaking or Community-scale group of undertakings.

(4)The information and consultation meeting shall relate in particular to the situation and probable trend of employment, investments, and substantial changes concerning organisation, introduction of new working methods or production processes, transfers of production, mergers, cut-backs or closures of undertakings, establishments or important parts of such undertakings or establishments, and collective redundancies.^F138]

Exceptional information and consultation meetings_I40

^F1398.—(1) Where there are exceptional circumstances affecting the employees' interests to a considerable extent, particularly in the event of relocations, the closure of establishments or undertakings or collective redundancies, the select committee or, where no such committee exists, the European Works Council shall have the right to be informed. It shall have the right to meet in an exceptional information and consultation meeting, at its request, the central management, or any other more appropriate level of management within the Community-scale undertaking or group of undertakings having its own powers of decision, so as to be informed and consulted ....

(2) Those members of the European Works Council who have been elected or appointed by the establishments or undertakings which are directly concerned by the [^F140circumstances^F140] in question shall also have the right to participate in an exceptional information and consultation meeting referred to in sub-paragraph (1) of this paragraph organised with the select committee elected under sub-paragraph (6) of paragraph 2.

(3) The exceptional information and consultation meeting referred to in sub-paragraph (1) of this paragraph shall take place as soon as possible on the basis of a report drawn up by the central management or any other appropriate level of management of the Community-scale undertaking or Community-scale group of undertakings, on which an opinion may be delivered at the end of the meeting or within a reasonable time.

(4) The exceptional information and consultation meeting referred to in sub-paragraph (1) of this paragraph shall not affect the prerogatives of the central management.

[^F141Use of agency workers

8A.Where information is to be disclosed under paragraph 7 or 8 which includes information as to the employment situation in the Community-scale undertaking or, as the case may be, the Community-scale group of undertakings, this shall include suitable information relating to the use of agency workers (if any).^F141]

Procedures_I41

9.—(1) Before an information and consultation meeting or exceptional information and consultation meeting with the central management, the European Works Council or the select committee, where necessary enlarged in accordance with sub-paragraph (2) of paragraph 8, shall be entitled to meet without the management concerned being present.

(2) Subject to regulation 23, the members of the European Works Council shall inform—

(a)the employees' representatives of the employees in the establishments of a Community-scale undertaking or in the undertakings of a Community-scale group of undertakings; or

(b)to the extent that any employees are not represented by employees' representatives, the employees themselves

of the content and outcome of the information and consultation procedure carried out in accordance with the provisions of this Schedule.

(3) The European Works Council shall adopt its own rules of procedure.

(4) The European Works Council or the select committee may be assisted by experts of its choice, in so far as this is necessary for it to carry out its tasks.

(5) The operating expenses of the European Works Council shall be borne by the central management; but where the European Works Council is assisted by more than one expert the central management is not required to pay such expenses in respect of more than one of them.

(6) The central management shall provide the members of the European Works Council[^F142and its select committee^F142] with such financial and material resources as enable them to perform their duties in an appropriate manner. In particular, the cost of organising meetings and arranging for interpretation facilities and the accommodation and travelling expenses of members of the European Works Council and its select committee shall be met by the central management unless the central management and European Works Council, or select committee, otherwise agree.

[^F143(7)The employer must ensure that the consultation referred to in paragraphs 7(1) and 8(1) is conducted in such a way that the members of the European Works Council can, if they so request—

(a)meet with the central management; and

(b)obtain a reasoned response from the central management to any opinion expressed by those representatives on the reports referred to in paragraphs 7(1) and 8(3).

(8)Information and consultation carried out in accordance with this Schedule shall be carried out subject to regulation 23.^F143]

The continuing application of the subsidiary requirements

^F14410. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .