Hinrichs & Ors v Oracle Corporation UK Ltd (Central Arbitration Committee)

Where the subsidiary requirements apply, an employer must provide information and, if requested, consult the European Works Council in exceptional circumstances affecting employees substantially. Consultation must enable the Council to express an opinion, but the employer need not await that opinion before taking or implementing its decision.

Regulation 19E(2) of the Transnational Information and Consultation of Employees Regulations 1999 requires the European and national information and consultation procedures to begin within a reasonable time of each other. It does not require national action to await an opinion from the European Works Council, and no such requirement should be read into the regulation.

The Oracle European Works Council complained to the Central Arbitration Committee that Oracle had implemented redundancies connected with a European reorganisation before the Council had given an opinion. It alleged failures under the Transnational Information and Consultation of Employees Regulations 1999, including regulations 18A and 19E(2).

The CAC rejected the complaint that regulation 19E(2) prevented national or local action before an EWC opinion. It found that the telephone conference relied on by the employer was not an exceptional information and consultation meeting, but did not uphold the timing complaint. The employee representative appealed on the meaning of regulations 18A and 19E(2), and on whether the latter should be read consistently with the Directive to require time for the EWC to communicate its opinion to national bodies.

1. Appeal dismissed. The CAC did not err in rejecting the complaint under regulation 21A(1)(d).

2. Under regulation 18A and paragraph 8 of Schedule 1 to the Transnational Information and Consultation of Employees Regulations 1999, management must provide information in a form that permits a detailed assessment and preparation for consultation. In exceptional circumstances affecting employees’ interests considerably, the EWC is entitled, on request, to an exceptional information and consultation meeting. The statutory scheme permits, but does not oblige, the EWC to deliver an opinion at the meeting or within a reasonable time.

3. Provided the employer has given the necessary information and undertaken the required consultation, neither the Regulations nor the Directive prohibits it from taking or implementing its decision before the EWC has expressed an opinion. The opinion may be taken into account, but the legislation preserves management’s responsibility to take decisions effectively.

4. On the agreed facts, the conference of 27 March 2017 was not an exceptional information and consultation meeting. The employer had therefore failed to hold the consultation required by Schedule 1 paragraph 8(1). That point was not the complaint determined by the CAC and did not establish the appellant’s proposed rule that decisions must await an EWC opinion.

5. Regulation 19E(2) requires linked EWC and national procedures to begin within a reasonable time of each other. Articles 12.1 and 12.3 of Council Directive 2009/39/EC do not require an EWC opinion to be provided to national employee representation bodies before local decisions. There was consequently no basis to construe the regulation, or to add words to it, so as to impose that requirement.

• Employment Appeal Tribunal: dismissed the appeal from the CAC: [2019] UKEAT 0194_18_3107.
• Central Arbitration Committee: on 12 February 2018, held that the complaint under regulation 21A(1)(d), concerning regulation 19E(2), was not well founded.