EasyJet Plc v EasyJet European Works Council

The withdrawal-related amendments to the Transnational Information and Consultation of Employees Regulations 1999 prevented new European Works Councils from being established after exit day but did not dissolve existing councils. Regulation 4 continued to apply where central management was factually situated in the United Kingdom. The amended deeming provision in regulation 5 did not alter that conclusion. Transitional provisions, retained enforcement provisions and the Explanatory Memorandum confirmed the continuing operation of existing councils. Practical difficulties caused by parallel councils in the United Kingdom and another European country did not make that construction unworkable.

easyJet appealed from the Employment Appeal Tribunal, which had dismissed its appeal against a preliminary decision of the Central Arbitration Committee. The CAC had held that it had jurisdiction to hear a complaint by the easyJet European Works Council concerning consultation during proposed redundancies announced in 2020.

easyJet argued that amendments made by the Employment Rights (Amendment) (EU Exit) Regulations 2019 caused the EWC to cease to exist on 31 December 2020. The central issue was whether an EWC established before exit day remained in existence and could invoke the amended Regulations in relation to a complaint made after exit day.

1. Appeal dismissed. The Court of Appeal unanimously held that the EWC established before exit day continued to exist for the purposes of the Transnational Information and Consultation of Employees Regulations 1999 (TICER). The CAC therefore had jurisdiction to hear the complaint made in March 2021.
2. Construction of regulations 4 and 5. Regulation 4(1) continued to apply where central management was factually situated in the United Kingdom. The words referring to regulation 5 did not restrict TICER to cases where central management was deemed to be in the United Kingdom under the amended regulation 5. The deletion of former regulation 5(1)(a) altered the duty concerning establishment of new EWCs, but did not remove existing United Kingdom-based EWCs from regulation 4.
3. Contextual provisions. Regulation 18 expressly provided for the Schedule to continue applying after exit day in specified cases where it had applied before exit day. That provision assumed the continuing operation of existing EWCs. The retention of regulation 23(6), concerning confidential information entrusted by United Kingdom central management, was also inconsistent with the suggestion that existing EWCs had disappeared. The transitional provisions for information requests and ongoing negotiations were clear and deliberately drafted. They were consistent only with the continued existence of current EWCs.
4. Parliamentary and explanatory material. Under Pepper v Hart [1993] AC 593, the Minister’s earlier statement did not clearly disclose the legislative intention behind the allegedly ambiguous provisions. However, the Explanatory Memorandum accompanying the 2019 Regulations was expressly confirmed by the Minister and could be given significant weight. It stated that existing EWCs could continue to operate while no new requests could be made. R v M Najib and Sons Ltd [2018] 1 WLR 5041 concerned an explanatory note, which was materially different from an Explanatory Memorandum.
5. Practical consequences. The possibility that the company might operate EWCs in both the United Kingdom and Germany created practical difficulties, but the position was not wholly unworkable. Those difficulties had to be balanced against the protection of United Kingdom employees through the existing EWC. The purposes of the EU Directive were of limited relevance because the existing EWC was governed by TICER and English law.

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed; existing EWC held to continue in existence under TICER. [2023] EWCA Civ 756.
• Employment Appeal Tribunal: appeal from the Central Arbitration Committee dismissed by His Honour Judge Tayler on 4 November 2022.
• Central Arbitration Committee: held on a preliminary issue that it had jurisdiction to hear the EWC’s complaint and that the EWC continued to exist.