easyJet PLC v easyJet European Works Council

Regulation 4(1) of the Transnational Information and Consultation of Employees Regulations 1999, as amended, applies where central management is actually situated in the United Kingdom and where it is treated as situated there under regulation 5. The words “in accordance with regulation 5” do not restrict the ordinary meaning of “situated in the United Kingdom” to the deeming cases in regulation 5.

That construction follows the natural meaning of the text in context and avoids the irrational result that the continuing enforcement regime would apply to deemed, but not actual, United Kingdom central management. The post-transition amendments ended the establishment of new European Works Councils but retained the regime for existing councils.

The Central Arbitration Committee held that it had jurisdiction to determine a complaint by the easyJet European Works Council against easyJet PLC under regulations 21 and 21A of amended TICER.

easyJet controlled a Community-scale airline group and its central management was in the United Kingdom. It argued that amendments taking effect after the Brexit transition period meant that amended TICER no longer applied where central management was actually, rather than deemed to be, situated in the United Kingdom.

The appeal concerned the construction of regulations 4 and 5 and, in particular, whether the phrase “in accordance with regulation 5” excluded actual United Kingdom central management from the continuing enforcement provisions.

1. Appeal dismissed. The CAC did not err in law in deciding that it had jurisdiction to consider the EWC’s complaint.

2. Regulation 4(1) of the Transnational Information and Consultation of Employees Regulations 1999 applies the relevant continuing provisions where central management is situated in the United Kingdom. Construed naturally, contextually and with common sense, the phrase “in accordance with regulation 5” means that this includes the additional cases in which regulation 5 deems central management to be situated in the United Kingdom. It does not exclude central management which is in fact situated there.

3. The employer’s construction would produce the nonsensical result that the regime applied to deemed United Kingdom central management but not actual United Kingdom central management. It was also inconsistent with the amendment’s structure. The removal of regulation 5(1)(a) removed the former duty to create the conditions for establishing a new EWC. It did not alter the unamended words in regulation 4(1), while regulations 5(1)(b), 5(1)(c) and 5(2) remained to identify and regulate deeming cases.

4. Alternatively, if the text were ambiguous, the contextual materials and the continuing provisions for established EWCs confirmed that Parliament intended existing EWCs to remain subject to amended TICER after the transition period. The contrary construction would also improperly remove the CAC enforcement route for matters occurring before that period ended.

5. If necessary, this was a plain case for correcting a drafting error. The operative wording would be read as applying where central management is situated in the United Kingdom or is deemed by regulation 5 to be so situated.

• Employment Appeal Tribunal: dismissed easyJet PLC’s appeal and upheld the CAC’s jurisdictional ruling.
• Central Arbitration Committee: on 1 June 2021, decided as a preliminary issue that it had jurisdiction to hear the EWC’s complaint under regulations 21 and 21A of amended Transnational Information and Consultation of Employees Regulations 1999.