Lean v Manpower Group

Under regulation 18(1)(c) of the Transnational Information and Consultation of Employees Regulations 1999, the Subsidiary Requirements do not apply merely because three years have elapsed without an agreement. The parties must have been unable to conclude an agreement. Where negotiations continue in good faith and agreement remains achievable, the parties may continue negotiating after the three-year period. The Special Negotiating Body does not automatically cease to exist when negotiations are terminated, when regulation 18 applies, or when an agreement is concluded. It remains capable of enforcing the establishment of a European Works Council. An employee becomes a relevant applicant under regulation 20(3)(b) only where the Special Negotiating Body has in fact ceased to exist.

Mr Lean, an employee of Manpower, appealed against a decision of the Central Arbitration Committee dismissing his complaint under regulation 20 of the Transnational Information and Consultation of Employees Regulations 1999. A valid request to negotiate a European Works Council had been made on 3 June 2013. The Special Negotiating Body and Manpower continued negotiating after the third anniversary and concluded an agreement in March 2017.

Mr Lean argued that regulation 18(1)(c) automatically applied after three years without agreement, that the Special Negotiating Body consequently ceased to exist, and that he therefore became a relevant applicant. The central issue was whether the three-year provision operated as an automatic guillotine and whether it brought the Special Negotiating Body's existence to an end.

1. Appeal dismissed. The CAC was right to conclude that the Special Negotiating Body continued to exist and that Mr Lean was not a relevant applicant under regulation 20.
2. Regulation 16(4) is inconsistent with the argument that the Special Negotiating Body ceases to exist when it decides under regulation 16(3) to terminate negotiations. The saving provision permitting the body and central management to agree otherwise necessarily assumes that the body continues to exist and retains relevant powers.
3. Regulation 18(1)(c) must be interpreted in the light of Directive 2009/38/EC. The words “failed to conclude” mean “are unable to conclude”, rather than simply “have not concluded”. This construction accords with the autonomy of the parties and the objective of reaching consensus. The mere passage of three years does not prevent continued negotiations where agreement remains achievable.
4. On the unchallenged facts, the parties continued negotiating after 3 June 2016 and were not unable to reach agreement. They subsequently reached agreement in March 2017.
5. Even where regulation 18 applies, the Regulations contain no express or implied provision terminating the Special Negotiating Body. Regulation 20(1)(a) contemplates that the body may bring a complaint where regulation 18 applies. Regulation 20(3)(b) is a backstop for cases where the body has actually ceased to exist, such as where it winds up its activities.
6. Regulation 14(5) of the Information and Consultation of Employees Regulations 2004 was not a useful comparison because it operated within an express six-month limit absent from TICE. Continued negotiations are subject to the parties' duty to negotiate in good faith under regulation 17(1).

• Central Arbitration Committee: complaint under regulation 20 dismissed on 24 October 2017. The CAC held that the Special Negotiating Body continued to exist and that Mr Lean was not a relevant applicant.
• Employment Appeal Tribunal: appeal dismissed. The CAC's construction of regulation 18(1)(c) and its conclusion on the continuing existence of the Special Negotiating Body were upheld.