Case Number: EWC1/2004

15 July 2004

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 1999

DECISION ON COMPLAINTS

The Parties:

Mr Haines, Ms Dickson & Mr Plews

and

The British Council

1. On 23 April 2004 the Central Arbitration Committee (CAC) received a written complaint under Regulation 8 of the Transnational Information and Consultation of Employees Regulations 1999 (the Regulations). On 28 April 2004 the CAC received a written complaint under regulation 13 of the Regulations. On 21 May 2004 the CAC received a further written complaint under regulation 13 of the Regulations. Each of the complaints were presented by a separate complainant and each was made in respect of the British Council (the UK Management). The complainants agreed that the complaints could be considered as a single application.

2. In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to consider the case. The Panel consisted of Professor John Purcell as Chairman and Ms Virginia Branney and Mr Eamonn Barry as Members. The Case Manager appointed to support the Panel was Matt Penfold.

Background and issues

3. The British Council has offices in many countries. Having been presented with a request to establish a European Works Council (EWC), the British Council held ballots in each member state of the European Economic Area to elect representatives to a Special Negotiating Body (SNB). The SNB is the body tasked with negotiating with the UK management with a view to concluding an agreement on an EWC procedure. Ballots were held by the end of April and the SNB held its first meeting in London on 27 May 2004.

The Regulations relevant to the complaints

4. Regulation 13(1) states that, in the absence of an existing consultative committee, a ballot of the UK employees shall elect the UK members of the SNB. It is the UK management’s responsibility to arrange the holding of the ballot which must satisfy the requirements specified in regulation 13(3). Regulation 13(4)-(6) states;

13(4) Any UK employee or UK employees’ representative who believes that the arrangements for the ballot of UK employees are defective may, within a period of 21 days beginning on the date on which the UK management published the final arrangements under sub-paragraph (f), present a complaint to the CAC.

(5) 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 sub-paragraph (e) or (f) of paragraph (3).

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

Regulations 13(3)(e)-(f) state

13(3)(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 sub-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.

Regulation 7 of the 1999 Regulations states-

7(1) An employee or an employees’ representative may request information from the management of an establishment, or of an undertaking, in the United Kingdom for the purpose of determining whether, in the case of an establishment, it is part of a Community-scale undertaking or Community-scale group of undertakings or, in the case of an undertaking, it is a Community-scale undertaking or is part of a Community-scale group of undertakings.

(2) In this regulation and regulation 8, the management of an establishment or undertaking to which a request under paragraph (1) is made is referred to as the “recipient”.

(3) The recipient must provide the employee or employees’ representative who has made the request with information on the average number of employees employed by the undertaking, or as the case may be the group of undertakings, in the United Kingdom and each of the other Member States in the last two years.

Regulation 8 states-

8(1) An employee or employees’ representative who has requested information under regulation 7 may present a complaint to the CAC that-

(a) the recipient has failed to provide the information referred to in regulation 7(3); or

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

(2) Where the CAC finds the complaint well-founded it shall make an order requiring the recipient 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 recipient refused or failed to disclose information, or disclosed false or incomplete information;

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

(3)….

(4) The CAC shall not consider a complaint presented under this regulation unless it is made after the expiry of a period of one month beginning on the date on which the complainant made his request for information under regulation 7.

The complaints presented under regulation 13

5. The complainants stated that they are contracted to the British Council and work in Spain and Portugal respectively. The complainants viewed that they had been excluded from their rights to both stand and vote in the ballot for a UK representative to the SNB. Both complainants relied on the requirements of regulations 13 and 14 of the Regulations.

6. Both complaints to the CAC, under regulation 13, concerned the voting procedure for election of a UK representative to the EWC. Ms Dickson, in Spain, stated that she works in Spain but nominates and votes for representatives in the UK. Ms Dickson also stated that details of the ballot procedures were not notified to her with sufficient notice and she, along with colleagues, was thereby disenfranchised from the balloting process. Mr Plews, in Portugal, stated that he was similarly denied his right to vote in the ballot for a UK representative to the SNB and denied his right to stand as a candidate in that ballot.

7. Both Ms Dickson and Mr Plews submitted that regulation 14, conduct of the ballot, requires that the ballot supervisor ensure that so far as reasonably practicable those entitled to vote are given the opportunity to vote and those entitled to stand as candidates are given the opportunity to stand.

8. The complainants submitted that if the denial of their rights, to vote and stand, in respect of the ballot to elect a UK member of the SNB is permitted, this has the effect of disenfranchising anyone working in a European country where local labour law excludes them from participation in the nomination and election process for local country representatives.

9. Ms Dickson presented an email from the British Council that assured employees in Spain that, as they were excluded by Spanish legislation from local participation they were to be offered the opportunity to be included in the UK constituency and therefore participate in the nominations and the ballot for a UK representative to the SNB. Ms Dickson did not receive this offer until returning to work on 19 April 2004 following the teaching centre’s closure for the Easter holiday by which time – as the nominations had closed on 16 April 2004 – it was too late for her to stand for election.

10. Ms Dickson submitted that her exclusion by Spanish legislation from participating in the local balloting procedure and her employer’s decision that she had an opportunity to stand and to vote in the ballot for a UK representative must mean that her rights are governed by the 1999 Regulations, any other conclusion would leave her in a legal vacuum.

11. The complainants submitted that the same outcome, of disenfranchisement in terms of the European Directive, was likely to be applicable to Mr Plews in Portugal who was excluded from the UK ballot as he was entitled to participate in the Portuguese process. Mr Plews submitted that as his contract is with the British Council in London it is subject to the law of England and, therefore, he accrues rights under the 1999 Regulations which have not been accorded to him; voting and standing in the ballot of the UK employees. Mr Plews submits that he was unlawfully excluded from the UK ballot and restricted to voting where he was working (Portugal). Notwithstanding his belief that he had a right to stand and vote in the UK ballot, he was not informed until the first day of the ballot in Portugal that he was eligible to participate in that ballot therefore losing any opportunity to be nominated to stand in that ballot.

The British Council’s comments on Regulation 13 complaints

12. In correspondence received on 15 June 2004 responding to the CAC’s request for comments on the complaints, the British Council stated that neither Ms Dickson nor Mr Plews had worked for the British Council in the United Kingdom during the previous 10 years. The British Council stated that neither Ms Dickson nor Mr Plews were eligible to be represented by the the UK Public and Commercial Services (PCS) trade union. The British Council submitted that these were relevant facts in its approach to the UK balloting procedure as it had taken the Regulation’s reference to ‘UK employees’ to mean those staff working in the UK and/or represented by the PCS. The British Council stated that its approach had been that Ms Dickson and Mr Plews should, subject to the relevant national legislation, have been included in the selection processes of the country in which they were located (Spain and Portugal).

13. The British Council clarified that, in respect of the Spanish selection process for its ballot, the local Spanish Trade Union would not permit the participation of Ms Dickson and 12 colleagues who had contracts issued in the UK. This problem had not been anticipated and, following consultation with the UK trade union, the offer of the opportunity to participate in the UK process was a pragmatic response in an effort to ensure those 13 staff were involved in a balloting process and had some form of representation. The British Council stated that in every other country all staff were able to participate in the local selection process.

Panel’s Considerations of regulation 13 complaints

14. The Panel, having been presented with two complaints that the arrangements for the ballot of the UK employees are defective, must determine, in accordance with Regulations 13(5)-(6), whether each of the complaints is well founded.

15. The Panel considers it an explicit requirement in addressing complaints under the Regulations to be clear about its jurisdiction. This, in the Panel’s view, is achieved by an analysis of the regulations under which the complaint is presented. The complaints of both Ms Dickson and Mr Plews are presented under regulation 13 with reference also made by the complainants to regulation 14.

16. Regulation 13(4) states that a complaint may be presented where it is believed that the ‘arrangements for the ballot of the UK employees are defective’. This, the Panel is satisfied, restricts the CAC’s involvement to ballots of UK employees. The CAC has no pan-European authority to consider complaints that are relevant to the decision-making bodies in other Member states. In the present case the complaints do relate to the ballot of the UK employees and do assert that the arrangements are defective as the arrangements are argued to have excluded employees from their right to stand and vote in that ballot.

17. Regulation 13(4) states that those persons who may present such a complaint to the CAC are ‘Any UK employee or UK employees’ representative’. The Panel has been asked to consider that the contracts under which the two complainants are employed determine their right to stand and vote in the ballot of the UK employees and that the contracts are therefore fundamental to the determination of their complaints that the ballot arrangements are defective. The Panel believes that in considering such argument it must pay heed to any provision within the Regulations that define who may present a complaint under regulation 13.

18. Regulation 2(3), the Interpretation regulation, states that references to "UK employees" are references to employees who are employed in the United Kingdom [emphasis added] by a Community-scale undertaking or Community-scale group of undertakings. This definition of UK employees applies to paragraphs 1 and 4 of regulation 2 and in regulations 6, 13 to 15 and paragraphs 3 to 5 of the Schedule (Subsidiary Requirements). Regulation 2(4), the Interpretation regulation, states that references to "UK employees' representatives" are references to employees' representatives who represent UK employees. This definition of UK employees’ representatives extends to regulations 13 and 15 and paragraphs 3 and 4 of the Schedule (Subsidiary Requirements).

19. The Panel is satisfied that these definitions adequately clarify that those persons entitled to present a complaint under regulation 13 must be employed in the United Kingdom. Ms Dickson and Mr Plews are employed in Spain and Portugal respectively. The Panel is not satisfied that either Ms Dickson or Mr Plews are employees in the United Kingdom as required by regulation 2(3), neither is the Panel satisfied that either of the complainants is a representative of employees employed in the United Kingdom, as required by regulation 2(4). Regulation 13(4) states that only those persons meeting the definitions of regulations 2(3) and 2(4) may present a complaint to the CAC. The Panel is satisfied that on the evidence available, neither complainant is employed in the United Kingdom and neither is a representative of employees who are themselves employed in the United Kingdom. In the Panel’s view, the fact that Ms Dickson was included in the constituency for the UK ballot in response to her exclusion from the process of selecting the Spanish representatives to the Special Negotiating Body does not bring her complaint within the jurisdiction of the CAC. As Mr Plews is not a UK employee or a representative of UK employees, in the Panel’s view he has no entitlement under the Regulations to participate in the UK ballot and the CAC has no authority to decide complaints relating to ballots in other Member States.

Panel’s Decision on regulation 13 complaints

21. The Panel's decision on the complaints presented by Ms Dickson and Mr Plews is that neither complainant is a UK employee or UK employees’ representative within the terms of the Regulations 2 and 13. The CAC has no jurisdiction to address either of the complaints.

The complaint presented under regulation 8

22. On 08 March 2004 Mr Haines, employed in Portugal by the British Council, made a request to management of the British Council for information on the average number of employees employed in the United Kingdom and in each of the other Member States in the last two years, the request made reference to regulation 6 of the 1999 regulations. On 03 April 2004 Mr Haines repeated this request in a further email to management.

23. On 23 April 2004 Mr Haines presented his complaint to the CAC, under regulation 8, that management had failed to provide the requested information.

24. Mr Haines accepted that his request was outpaced by the British Council’s decision to proceed to establish a Special Negotiating Body but does not accept that this removes the requirement on the British Council to comply with regulation 7 by providing the requested information on numbers of employees. Mr Haines submitted that the purpose of the information requested under regulation 7 is not simply to enable the employee to determine whether the establishment or undertaking is part of a Community-scale undertaking or Community-scale group of undertakings, but will additionally enable the employee to determine the minimum number of representatives per Member State in any subsequent EWC constitution.

25. Mr Haines submitted that his request for information in accordance with regulation 7 was made in advance of an announcement of proposals to set up an EWC by the British Council on 02 April 2004. Mr Haines asked the Panel to conclude that, under regulation 7, there was a continuing obligation on the British Council to provide the information he had requested.

The British Council’s comments on Regulation 13 complaints

26. In correspondence received on 15 June 2004 the British Council stated that its understanding of the purpose of the requested information is to determine whether the 1999 regulations apply to the organisation. The British Council stated that it has never been in doubt that the 1999 Regulations are applicable to it and that it acted accordingly once it had received a request to establish an EWC.

27. The British Council stated that the responsibility for ensuring that the SNB is properly constituted in accordance with the formula in regulation 12 lies with management.

28. The British Council believes that once the SNB is set in train, it is not obliged to provide information to any employee or employee representative, other than with regard to consultation on the actual selection process. As the SNB has been established, and indeed met, its dealings are now with that body and not with individual employees.

Panel’s Considerations of regulation 8 complaint

29. The Panel is satisfied that the entitlement under regulation 7 to seek information from the management of an establishment, or of an undertaking, in the United Kingdom, is an entitlement afforded to ‘an employee or an employees’ representative’. Regulation 2(1) states that an employee means an individual who has entered into or works under a contract of employment. The Panel is satisfied that on the evidence available there is no dispute that Mr Haines is an employee of the British Council and was entitled to request the information in accordance with regulation 7.

30. Following Mr Haines’s request, and his repeat request, for information from the British Council, events have moved apace and ballots have been held. An SNB has been established and has met. The task of the SNB, in terms of the 1999 Regulations, is to determine, with central management, the scope, composition, functions, and term of office of an EWC or the arrangements for implementing an information and consultation procedure; it seems clear that the former option is the chosen direction in this present case.

31. The Panel is not persuaded by Mr Haines’s submission that the information to which an employee is entitled under regulation 7 has more than one purpose. The Panel is satisfied that the language of regulation 7 is explicit in describing the purpose of the requested information. Whilst possession of the information would enable the employee to draw his or her own conclusions on the number of representatives appropriate for each Member State this is, in the Panel’s view, a by-product of regulation 7 and not its purpose. This would lead the Panel to conclude that there may be no future purpose for the information and that the purpose for which it was intended has already been achieved; the initiation of negotiations for the establishment of an EWC.

32. Irrespective of the Panel’s view of the realities of the situation and the Panel’s view that there is no added value to the disclosure to the employee of the requested information, there is a statutory requirement on the ‘recipient’ to disclose the requested information. There is no latitude in regulation 8 for the CAC to find other than the complaint is well founded or not well founded. This Panel is satisfied that ‘well-founded’, with regard to regulation 8 means it must determine either that the requested information was not provided or that false or incomplete information was provided in response to the request. The evidence available to the Panel leads it to conclude that, following Mr Haines’s request for the information to which he is entitled under regulation 7, the information was not disclosed to him.

Panel’s Decision on regulation 8 complaint

33. The Panel finds that the complaint submitted to the CAC by Mr Haines is well-founded.

CAC Order

(a) The British Council, having been presented on 08 March 2004 with a request for information by Mr Haines, failed to provide the information referred to regulation 7(3) of the 1999 Regulations. The British Council failed to provide the information on 07 April 2004, that being one month from the request and the earliest date at which failure can be determined to have occurred and a complaint presented to the CAC in accordance with regulation 8(4).

(b) The British Council is to disclose to Mr Haines information on the average number of employees employed by the undertaking in the United Kingdom and in each of the Member States of the European Economic Area in the last two years in accordance with regulation 7(3).

Panel

Professor John Purcell

Ms Virginia Branney

Mr Eamonn Barry

Date 15 July 2004