Decision

Decision

Updated 26 January 2023

Applies to England, Scotland and Wales

Case Number EWC/41/2022

25 January 2023

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES

REGULATIONS 1999 AS AMENDED

DECISION ON COMPLAINT UNDER REGULATION 20

The Parties:

Mr I Firea

and

2 Sisters Food Group

1. Introduction

1) On 4 October 2022, Mr. Philip Sack of EWC Legal Advisers submitted a complaint to the CAC on behalf of Mr Iulian Firea (the Complainant) under Regulation 20 of the Transnational Information and Consultation of Employees Regulations 1999, as amended by The Employment Rights (Amendment) (EU Exit) Regulations 2019, (amended TICER) ^{[footnote 1]} in relation to the actions of the 2 Sisters Food Group (the Employer). The CAC gave both parties notice of receipt of the complaint on 4 October 2022. The Employer submitted a response to the CAC dated 18 October 2022 which was copied to the Complainant.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to consider the case. The Panel consisted of Professor Gillian Morris as Panel Chair and Mr David Coats and Mr Robert Lummis as Members. The Case Manager appointed to support the Panel was Kaniza Bibi.

2. Background

3) The Employer is one of the leading food manufacturing companies in Europe, employing over 16.500 workers. Its products range from “poultry to pizza to pies and from ready meals to ranges of soup”. ^{[footnote 2]} The Employer’s teams work in factories and office locations in England, Scotland, Wales, the Republic of Ireland, the Netherlands and Poland. The Employer’s stated aim is to be the leading Poultry Plus business in Europe. Its central management is located in the UK.

4) On 17 July 2015 a request to establish a special negotiating body (“SNB”) was sent by Jaroslaw Lange, an employee representative of NSZZ Solidarnosc trade union, to the Employer’s management in Poland and on 27 July 2015 a request to establish an SNB was sent to the Employer’s management in the UK by Scott Walker on behalf of Unite the Union (“the Union”) and the Employer’s UK employees. ^{[footnote 3]} The request of 27 July 2015 included the following words:

As you will be aware, now that a 2nd request has been submitted the company are required to establish a Special Negotiating Body, for the purposes of negotiating a EWC agreement. As part of this process the UK employees will be entitled to elect a number of SNB representatives and arrangements for this election are detailed and provided for under Regulation 13 of … [unamended TICER]. In particular under Regulation 13(e) the UK management are required to consult with employee representatives on the proposed arrangements for the ballot of UK employees. UNITE the union looks forward to participating in this consultation process.

5) On 17 March 2017 a complaint was made to the CAC (“the 2017 complaint”) by Scott Walker under regulation 20 of TICER that regulation 18 of TICER applied because the central management had refused to commence negotiations within the period of six months beginning on the date on which a valid request had been made and that because of a failure of the central management the European Works Council (“EWC”) had not been established at all in accordance with the provisions of the Schedule. The Employer’s response to the 2017 complaint, dated 29 March 2017, was signed by the Employer’s Group Culture and Change Director, Nigel Perry. So far as material this response read as follows:

…. we were somewhat shocked and surprised to learn that Unite the Union (“Unite”) have made a complaint to CAC concerning the formation of a European Works Council (“EWC”) for 2 Sisters Food Group (“2SFG”).

We would have expected that before proceeding to CAC that Unite would have come back to us to have further dialogue with them about the formation of 2SFG’s EWC. The last discussion we had with our Union Representatives on this subject was at a Poultry Consultation Forum back in November 2016 at which we had a long discussion about formation of an EWC. I attach a copy of the minutes of that meeting on this topic.^{[footnote 4]} Our key question to Unite Representatives was that given the decentralized nature of our businesses, and we have no transnational issues which bind us together, what will we talk about in an EWC meeting, and what will the agenda be? The Representatives of Unite said they would reflect on the conversation and come to us with their views on what we had said, and the intention was to continue the discussion outside the Poultry Consultation Forum. In view of this, we are somewhat surprised that the first we hear back from Unite is that they have made a complaint to the CAC.

Our position on the formation of a 2SFG EWC is clear in that we understand that we, as a Group, fall within the scope of the legislation. We do not dispute that under current legislation, therefore, we can proceed to set up a EWC. However, we have always been keen to ensure that the role and purpose of the EWC is understood by all parties and that if we set one up it needs to deliver some value both to the Company and to the Employee Representatives. Our concern is that it will not deliver value to either, but to be clear, at no point have we said that we refuse to commence discussions to set up an EWC.

Given that Unite have lodged a formal complaint to CAC, even though we may dislike the process they have followed, as we were expecting to hear back from them directly, we will now move to set up a SNB to set up the 2SFG EWC. I will be speaking to Julia Long, National Officer of Unite to confirm this approach and to arrange to implement the appropriate arrangements.

6) In its response to the Employer’s response to the 2017 complaint, dated 6 April 2017, the Union noted that Mr Perry had accepted that a valid request had been made on 27 July 2015; that this was 21 months ago; and that during that time central management had refused to constitute an SNB. The Union contended that it was without dispute that central management had not taken any steps or made any attempts to establish an SNB for the purpose of negotiating an EWC agreement and had therefore de facto refused to commence negotiations. The Union stated that it had on numerous occasions attempted to engage Central Management in dialogue on the establishment of an SNB and in particular the election of UK SNB representatives. The Union said that at the Poultry Consultation Forum referred to by Mr Perry it had been Union representatives who had raised the issue of the EWC. The Union said that at that meeting Mr Perry had categorically stated that the Employer had no intention whatsoever of establishing an EWC. The Union contended that Mr Perry had reiterated these sentiments in his response of 29 March 2017, referring to the statements “given the decentralized nature of our businesses, and we have no transnational issues which bind us together” and “if we set one up it needs to deliver some value both to the Company and to the Employee Representatives. Our concern is that it will not deliver value to either”. The Union contended that Mr Perry’s views on the purpose, effectiveness or added-value of EWCs were not a legitimate excuse for refusing to commence negotiations for the purpose of establishing one. The Union said that while Mr Perry had now accepted and committed to setting up an SNB to set up an EWC, the Union no longer believed that this was an option. The Union contended that the Employer had refused to commence negotiations; that the provisions of the Schedule applied; and the Union sought an order from the CAC requiring the Employer to take such steps as were necessary to establish an EWC in accordance with the provisions of the Schedule.

7) In support of its statement that it had attempted to engage central management in dialogue on the establishment of an SNB the Union exhibited a letter dated 11 March 2016 from the Union to Mr Perry in which the Union stated that the UK management was required to consult with employee representatives on the proposed arrangements for the ballot of UK employees and proposed a meeting to discuss this issue at the Employer’s earliest convenience. The Union also exhibited the covering email to that letter addressed to Mr Perry which included the statement “I attach an admin letter in respect of EWC, this is just one of many areas that are in train at the moment”. The Union stated that there had been no reply or response to that letter or email and no reply or response was exhibited by the Employer.

8) In a letter to the CAC dated 17 May 2017 the Union wrote to the CAC Case Manager in the following terms:

Further to your letter, and the Employer’s commitment to set up an EWC in accordance with the provisions of the Schedule, I’ve now had an opportunity to consult with the UNITE representatives on this matter. Rather than withdraw the complaint at this stage we would propose a stay in the proceedings in order to allow the employer time to comply with this obligation. Obviously we expect the employer to start this process with immediate effect.

On 22 May 2017 the Union wrote to the CAC Case Manager in the following terms:

Further to your letter, and the Employer’s commitment and agreement to set up an EWC in accordance with the provisions of the Schedule, I’ve now had an opportunity to consult with the UNITE representatives on this matter and we are happy to withdraw the complaint. Obviously we expect the employer to start this process with immediate effect.

9) During 2018 three different individuals took on the role of the Union’s National Officer for Food, Drink and Agriculture. In August 2018 Scott Walker, who had made the 2017 complaint, was made redundant and left the Employer. In February 2019 Bev Clarkson took on the role of the Union’s National Officer for Food, Drink and Agriculture. On 7 March 2022, having learnt for the first time of the request to establish an EWC at the Employer, Ms Clarkson wrote to John Allan, the Employer’s UK Poultry Human Resources Director, in the following terms:

Unite the Union in the past have made approach to 2Sisters regarding setting up a … [EWC], this request was made prior to Brexit, representation was made by Unite to the …[CAC] where a response was made by Nigel Perry advising that the company would work with Unite to set the EWC up. This never happened for what reason I am not sure.

I am advising you that Unite are now looking for this to be actioned and would like to arrange a meeting with 2Sisters to go through the process.

On 11 July 2022 Mr Allan wrote to Ms Clarkson ahead of a meeting scheduled for 19 July 2022 setting out the Employer’s thoughts on the matter. This letter included the following paragraphs

2.1 Background

• A request was made by Unite in 2015 for 2SFG to set up … [an SNB] with the view to ultimately implementing a EWC with the employees of our organisation;

• Nothing material seems to have happened after that until the correspondence with the … [CAC] in March 2017, when again it was agreed that a SNB be set up for the same purpose;

• Following the CAC correspondence, conversations effectively tapered off (if, indeed, they actually started); in fact, we are not aware of any discussions being had since then until we received your letter of 7 March 2022.

As you are aware, a EWC was a form of works council derived from the UK’s membership of the … [EU]. There were transitional arrangements agreed for EWCs that were in the process of being set up at the time of our exit from the EU on 31 December 2020, but given the lack of any progress with our discussions since March 2017, these do not apply. As these transitional arrangements do not apply, it is no longer possible to start a new process to implement an EWC….

3. Proposal

As a result of the UK’s exit from the EU, and because conversations between 2SFG and Unite didn’t continue beyond the requests in 2015 and 2017, there is no longer a legal mechanism under which we can set up a EWC.

Although our membership of the EU has ceased, and with it the legal mechanism under which an EWC can be set up, we would still be open to working together with you to discuss what benefit you believe a EWC would have had were it to be implemented. Please note though that in that context there is little intersection between our UK and European businesses which, despite common ownership, operate distinctly.

We are happy to consider proposals taking elements of a EWC that are relevant and have the potential to provide benefits to both of our organisations as well as other (non EWC) proposals that will help build a constructive working relationship.

10) In the event the meeting scheduled for 19 July 2022 did not take place. The Employer stated that this was due to the Met Office issuing a Red Warning against all travel on 19 July 2022. The Employer stated that it had contacted the Union proposing alternative dates for the meeting and last wrote on 18 August 2022 proposing two potential dates. The Employer said that there had been no response from the Union with its availability for a meeting, nor to its letter of 11 July 2022, and no response was exhibited by the Union. The Employer said that the next correspondence it had received on this matter was the letter from the CAC dated 4 October 2022 notifying the Employer of the complaint. The Union said that, in the light of Mr Allan’s letter of 11 July 2022, it had concluded that attempting to persuade the Employer that it must establish an EWC under TICER would not succeed and would only lead to further delay and as a consequence the Union had submitted the complaint.

4. The complaint

11) The complaint dated 4 October 2022 reads as follows:

This complaint is made pursuant to regulation 20 of the TICE Regulations (Failure to establish European Works Council or information and consultation procedure). The employees’ representative complains that, because of a failure of the central management, a European Works Council has not been established at all in accordance with the provisions of the Schedule to the Regulations as required by regulation 18.

On 27 July 2015 a valid request was made by representatives of employees of 2 Sisters to negotiate an agreement for a European Works Council. On 17 March 2017 Unite the Union on behalf of an employees’ representative of 2 Sisters submitted a complaint to the CAC under regulation 20 of the TICE Regulations that, because of a failure of the central management, a European Works Council had not been established at all in accordance with the provisions of the Schedule to the Regulations as required by regulation 18 … Following a commitment made to the CAC in writing by the management of 2 Sisters on 29 March 2017 to set up a Special Negotiating Body (“SNB”), the complainant notified the CAC on 22 May 2017 that it was withdrawing the complaint ….

Despite the company’s commitment to set up an SNB, it did not do so. Consequently, no agreement under regulation 17 was concluded, and therefore the provisions of the Schedule (the Subsidiary Requirements) applied to 2 Sisters at the latest from 27 July 2018 by virtue of regulation 18 as it existed on that date. The Subsidiary Requirements required 2 Sisters to establish a European Works Council in accordance with the provisions of the Schedule, but it has not done so at all. Regulation 18, as amended by The Employment Rights (Amendment) (EU Exit) Regulations 2019, now provides that “[t]he provisions of the Schedule continue to apply on and after exit day in any case where they applied before exit day’.

We note that regulation 20 contains no time limit for bringing a complaint of failure to establish a European Works Council. This contrasts with regulation 21 (Disputes about operation of European Works Council) which contains a 6-month time limit.

We reserve the right to add a further element to this complaint if 2 Sisters refuses to cover my expenses in bringing this complaint on behalf of Mr. Firea.

5. Summary of the Employer’s response to the complaint

12) The Employer responded to the complaint in a letter dated 18 October 2022 signed on behalf of Mr Allan. The Employer said that, following the request of 27 July 2015 to set up an SNB, discussions had taken place regarding the potential formation of an EWC, including most notably in November 2016 at a Poultry Consultation Forum. The Employer said that at that meeting it had been keen to understand from the Union how the establishment of an EWC could be of wider benefit given the decentralized nature of the group and lack of transnational issues. The Employer said that the Union had agreed to reflect on this point and provide its views. The Employer said that establishment of an SNB had not been progressed – no employees were put forward by the Union as potential members of an SNB – and nothing further had been heard from the Union on this matter until the Union complained to the CAC on 17 March 2017. The Employer said that in response to the complaint, and recognising that (at that time) the legislation applied, the Employer agreed in its letter of 29 March 2017 to move to set up an SNB to set up an EWC. The Employer said that following the withdrawal of its complaint by the Union in its letter of 22 May 2017 nothing further had been heard from the Union regarding the establishment of an SNB. The Employer accepted that it did not pursue the Union on that basis. The Employer asked the CAC to note that following May 2017 there had been regular dialogue with the Union about other matters and the process of annual collective bargaining but progressing the formation of the SNB was not raised by the Union at any time. The Employer contended that it could not be held responsible for this; for whatever reason it appeared that the Union had decided that this was not an issue for their agenda with the Employer and it could not simply be reinstated as if no time had passed. The Employer said that the Union’s email of 7 March 2022 seeking to re-engage with the Employer on the opportunity to establish an EWC had come completely out of the blue, some years after the issue had last been raised. The Employer referred to its proposed meeting of 19 July 2022; the letter of 11 July 2022; and events since the cancellation of that meeting up to the time of receiving the complaint.^{[footnote 5]} The Employer emphasised that it had met the Union continuously and frequently in the period between 2017 and 2022 and at no point, to the best of its knowledge, was the establishment of an SNB discussed or even mentioned. The Employer said that it was its understanding that following the 2017 complaint interest between the parties to set up an EWC fell away again as conversations turned to other areas of interest.

13) The Employer acknowledged that at the time of the 2017 complaint “there was an obligation to consider establishment of a SNB, which may then lead to a EWC”. The Employer said that there were no arrangements in place between the Employer and the Union as at 31 January 2020 which would be covered by the transitional arrangements. The Employer said that the establishment of an SNB was a necessary precursor to starting discussions over the formation of an EWC but that an SNB could decide not to establish an EWC and that could be the case where a business such as the Employer’s operated a highly decentralized model. The Employer said that, although it was more likely than not that establishing an SNB would ultimately lead to creating an EWC, it was not a foregone conclusion. The Employer said that, that aside, as at exit day there had been no failure by central management to establish an EWC. The Employer said that no SNB had been proposed by the Union and there had been no agreement to create an EWC. The Employer said that it was clear that the Union had not considered there to be an agreement to establish an SNB or EWC as, if there had been such an agreement and then a failure by the Employer to implement that agreement, this would have been top of the Union’s agenda for the last five years. The Employer contended that it had been established in Lean v Manpower Group (CAC) [2019] ICR 832 that a failure to establish an EWC could not be claimed simply after the passage of three years from the date the original request was made if conversations had not been continuous during that time. The Employer submitted that as a result of the UK’s exit from the EU, and because conversations between the Employer and the Union did not continue beyond 2017, there was no longer a legal mechanism under which the Employer could establish an EWC. The Employer concluded by stating that it had always been its position to maintain an effective dialogue with the Union and it remained prepared to consider the benefits of an EWC and, where relevant, to provide or make available such benefits to continue to build a constructive working relationship with the Union.

6. Summary of the Complainant’s response to the Employer’s response

14) In a response to the Employer’s response to the complaint, dated 31 October 2022, The Complainant referred to regulations 5(1) and 9(1) of TICER and said that the Employer’s attempt to thrust the responsibility for progressing matters onto the Union was clearly incorrect. The Complainant also said that regulation 13 was clear that it was the responsibility of UK management to arrange for the holding of a ballot to elect the UK members of the SNB. The Complainant said that the Employer could not claim to be unaware of its obligations to establish an SNB and to arrange a ballot of UK employees to elect UK members because these were set out in the request of 27 July 2015. The Complainant said that where a valid request had been made to establish an EWC it must be set up (either under an agreement or under the subsidiary requirements) irrespective of any “benefits” or “value” to the Employer or to what management considers to be value for Employee Representatives. The Complainant said that there was no evidence that interest in establishing an EWC on the part of employee representatives had fallen away after 2017 and that, in any event, there was no basis in the legislation for the Employer to ignore its legal obligations just because it believed that to be the case. The Complainant said that the SNB was not given the opportunity to consider taking a decision under regulation 16(3) of TICER not to open negotiations with central management or to terminate negotiations because the Employer failed to establish an SNB or to initiate negotiations. The Complainant said that Lean v Manpower Group (CAC) could not be used to disapply the subsidiary requirements in a situation where no SNB was set up, no negotiations were held and no agreement was concluded.

15) The Complainant said that it agreed with the Employer that the transitional provisions in The Employment Rights (Amendment) (EU Exit) Regulations 2019 relating to ongoing SNB negotiations did not apply in this case. However the Complainant said that it did not agree that this relieved the Employer of its obligation to establish an EWC; rather it contended that the provisions of the Schedule applied to the Employer from 27 July 2018 at the latest by virtue of regulation of 18 of TICER. The Employer referred to regulation 18 of amended TICER which states that the provisions of the Schedule continue to apply on or after exit day in any case where they applied before exit day.

7. The hearing

16) Both parties expressed a willingness to attend an informal meeting with the Panel Chair to establish whether there were any ways in which the parties could be assisted in resolving the issues in dispute. This meeting took place on 28 November 2022. As it did not prove possible to reach an agreement the Panel decided to hold a formal hearing. A virtual hearing was held on 12 January 2023 and the names of those who attended the virtual hearing are listed in the appendix to this decision. Both parties provided statements of case which were exchanged, and submitted to the Panel, together with a bundle of documents agreed by the parties, in advance of the hearing. The Panel’s decision on the complaint has been taken after full and careful consideration of the views of both parties as set out in their written submissions and amplified at the hearing and of all the other material adduced in evidence. In answer to a question from the Panel Chair both parties confirmed at the conclusion of the hearing that they had had the opportunity to say everything that they had wished to say.

8. Matters clarified at the start or during the course of the hearing

8.1 The matters at issue between the parties and the structure of this decision

17) The Employer’s statement of case identified three issues which arose for determination by the Panel:

1) Can the Regulation 20 TICER claim be brought post-Brexit?

i) Before exit day, did the Respondent refuse to set up an EWC? (Regulation 18(1)(b)); or

ii) Before exit day, were the parties unable to conclude an agreement? Regulation 18(1)(c) and Lean v Manpower [2019] ICR 832). It is accepted that on exit day, the parties became unable to conclude an agreement. (“The first issue”).

2) Should a time limit to bring such a claim be read into Regulation 20 to give proper effect to Article 11(2) European Works Council Directive 2009/38/EC, read with Article 6 European Convention on Human Rights and Article 16 European Charter of Fundamental Rights? (“The second issue”).

3) In light of the extensive delay, and the lack of meaningful remedy, is it an abuse of process to bring a claim under Regulation 20 after a period of inaction of five years? (“The third issue”?)

The Panel Chair stated that the Panel assumed from this list of issues that the Employer’s submissions contained in its statement of case were comprehensive in that other issues raised by the Employer in correspondence at an earlier stage of the case were no longer being pursued by the Employer. The Employer confirmed that this was the case. The Panel Chair stated that the Complainant should, therefore, confine its oral submissions to the issues identified by the Employer in its statement of case and that submissions contained in the Complainant’s statement of case relating to issues which had been raised by the Employer in previous correspondence which were no longer being pursued by the Employer need not form part of the Complainant’s oral submissions. As the Panel was not required to make any finding on those issues which were no longer being pursued by the Employer, the sections of the Complainant’s statement of case which refer to those matters are not recorded in the Panel’s decision.

18) In this decision the parties’ submissions, and the Panel’s findings on those submissions, are dealt with under the headings of the first issue; the second issue; and the third issue.

9. The Employer’s offer of a voluntary mechanism and the Complainant’s response to that offer

19) The Employer stated at the start of the hearing that it was very willing to meet the Union to have a voluntary mechanism to achieve the same purposes as an EWC but that it was unable to constitute an EWC under TICER. The Union stated that it wanted its legal rights upheld.

10. The scope of the Complainant’s request

20) The Employer sought clarification from the Complainant during the course of the hearing whether the request applied only to its poultry business or whether it ranged more widely. Ms Clarkson initially said that it was confined to the poultry business but Mr Hayward subsequently stated that, although the Complainant would have wanted poultry rather than some other elements to be included, what fell within the EWC would have been a matter for negotiation.

11. Summary of the Complainant’s submissions

11.1 The first issue

21) The Complainant submitted that the Employer had failed to deal with its legal obligations. The Complainant said that the Employer had not disputed that a valid request had been made on 27 July 2015. The Complainant said that, once a valid request had been made in accordance with regulation 9 of TICER, central management was under a legal obligation under regulation 9(1) to initiate negotiations for the establishment of an EWC. The Complainant said that central management was also responsible for creating the conditions and means necessary for the setting up of a EWC through the establishment of an SNB (regulation 5(1)) while UK management was responsible for arranging a ballot of UK employees to elect UK SNB members under regulation 13(2). The Complainant said that central and local management had done none of these things and had erroneously attempted to thrust these responsibilities onto the Union and to blame the Union for the Employer’s on-going failure. The Complainant said that there had never been a requirement in either the Directive or under TICER for management to believe that there was “value” or “benefit to the Employer or to the employee representatives before it was required to set up an EWC. The Employer drew attention to the words in the Employer’s response to the complaint of 18 October 2022 where the Employer stated that at the time of the 2017 complaint there was “an obligation to consider establishment of an SNB” (see paragraph 13 above). The Complainant said that there was an outright obligation to consider an SNB, not just an obligation to “consider” doing so.

22) The Complainant said that article 7 of Directive 2009/38/EC (“the Directive) ^{[footnote 6]} and regulation 18 of TICER anticipated a situation where the Employer had failed to deal with its legal obligations by providing that the subsidiary requirements applied by default once a six-month deadline for negotiations to be initiated had expired. Regulation 18 provides that:

The provisions of the Schedule shall apply if –

a) the parties so agree;

b) within the period of six months beginning on the date on which a valid request referred to in regulation 9 was made, the central management refuses to commence negotiations; or

c) after the expiry of a period of three years beginning on the date on which a valid request referred to in regulation 9 was made, the parties have failed to conclude an agreement under regulation 17 and the special negotiating body has not taken the decision under regulation 16(3).

Regulation 17(2) states that:

In this regulation and regulations 18 and 20, the central management and the special negotiating body are referred to as “the parties”.

The Complainant submitted that regulation 18(1)(b) applied in this case because the Employer had refused to commence negotiations within six months of the request and that the subsidiary requirements thereby applied as from 27 January 2016. The Complainant said that the Employer could not rely on the argument that it had never refused to establish an EWC. The Complainant said that it was obvious that regulation 18(1)(b) would be emptied of any force if an Employer could say “we are not refusing” an EWC and thereby claim that the six-month deadline did not apply. The Complainant submitted that the Employer did not want an EWC and had de facto refused to commence negotiations or could be deemed to have refused.

23) The Complainant submitted that even if the six-month deadline did not apply the three-year deadline specified in regulation 18(1)(c) did. The Complainant distinguished Lean v Manpower Group (CAC) (see paragraph 17 above) on the basis that an SNB had been established in that case; the parties had agreed a short extension to the deadline; and agreement had been reached after the deadline. The Complainant acknowledged that regulation 17(2) defined “the parties” for the purposes of regulation 18 as the central management and the special negotiating body and that prima facie regulation 18(1)(c) did not apply in this case. However the Complainant submitted that regulation 18(1)(c) could be read to cover the situation where the parties were unable to conclude an agreement where there were no parties because an SNB did not exist. The Complainant referred to paragraph 48 of Lean (see paragraph 35 below) and said that the Employer was trying to use this against the interests of employees in a situation where the Employer was not negotiating in good faith. The Complainant said that under either regulation 18(1)(b) or regulation 18(1)(c) the subsidiary requirements applied and still did under regulation 18 of amended TICER which provides that:

The provisions of the Schedule continue to apply on and after exit day in any case where they applied before exit day.

The Complainant said that if the Employer’s argument that regulation 18(1)(c) was not available in this case were to be accepted then regulation 18(1)(b) had to be available or the deadlines contained in regulation 18 would be valueless.

24) The Complainant did not accept the Employer’s submission that its duty under regulation 9(1) was subject to the duty to negotiate in a spirit of co-operation under regulation 17(1). Regulation 17(1) provides that

The central management and the special negotiating body are under a duty to negotiate in a spirit of cooperation with a view to reaching a written agreement on the detailed arrangements for the information and consultation of employees in a Community-scale undertaking or Community-scale group of undertakings.

The Complainant submitted that this duty applied to the central management and the special negotiating body and the Complainant had never had the opportunity to negotiate.

25) The Complainant said that the excuses made by the Employer for its failure to establish an EWC were relevant to whether a penalty notice should be imposed by the EAT and not to proceedings before the CAC. ^{[footnote 7]}

11.2 The second issue

26) The Complainant submitted that the absence of a time limit on claims under regulation 20 of amended TICER was a deliberate choice by Parliament, which had imposed time limits in various other parts of the Regulations. The Complainant submitted that the Employer could not use the passage of time to evade its obligations; the contrary view would require the Complainant to start the process again which it could not do post- Brexit. The Complainant said that the Employer had an indefinite obligation to establish an EWC in the same way as, had it established an EWC, it would have had an indefinite obligation to operate it.

27) The Complainant addressed the provisions cited by the Employer in support of its contention that a time limit should be read into regulation 20 set out in paragraphs 37 and 38 below. The Complainant said that the Employer had said that Article 11 of the Directive required appropriate measures “in the event of failure to comply” with the Directive and the Complainant submitted that this reinforced the Complainant’s case as there was a failure to comply by central management with its obligations which needed to be remedied. The Complainant said that no caselaw had been cited by the Employer in relation to Article 6 of the European Convention on Human Rights (“ECHR”). In relation to Article 16 of the European Charter of Fundamental Rights the Complainant said that it was not seeking to prevent the Employer conducting its business; rather it wanted the Employer to conduct its business in accordance with national laws. The Complainant rejected the basis of the Employer’s submission that the Employer would be unable to comply both with the Directive and with UK law and that on that ground a time limit should be implied into regulation 20. The Complainant said that the request had been made by employee representatives in Poland and the UK in 2015; that no subsequent request had been made; and that there was no obligation, therefore, on the Employer to establish an EWC under Polish law or under the law of any other EU Member State. The Complainant said that the Employer would not, therefore, be required to operate two EWCs at the same time.

11.3 The third issue

28) The Complainant rejected the Employer’s contention that there was no meaningful remedy open to the Complainant and that the complaint was therefore an abuse of process. The Employer said that regulation 20(4) of amended TICER allowed the CAC to make an order requiring the Employer to establish an EWC in accordance with the provisions of the Schedule and that this was in no way dependent on regulations 9 and 10 as the Employer had contended. The Complainant said that the EAT decision in easyJet Plc v easyJet European Works Council and Secretary of State for Business Energy and Industrial Strategy ^{[footnote 8]} was binding on the CAC and that regulation 18 of amended TICER therefore applied. The Complainant said that the Employer could not now move an EWC out to Poland because of easyJet.

29) The Complainant said that, under easyJet, amended TICER continued to apply in parallel with the Directive and that the Directive was irrelevant to the interpretation of amended TICER. The Complainant said that the Employer was not relieved of its obligations under UK law because of the existence of the Directive and that the Employer was required to operate an EWC under TICER. The Complainant reiterated the point it had made in relation to the second issue that the Employer would not be required to operate two EWCs at the same time (see paragraph 27 above).

30) Regulation 20(4) of amended TICER states that:

Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the central management to take such steps as are necessary to establish the European Works Council or information and consultation procedure in accordance with the terms of the agreement made before exit day under regulation 17 or, as the case may be, to establish a European Works Council in accordance with the provisions of the Schedule.

Regulation 20(6) states that:

An order under paragraph (4) shall specify –

(a) the steps which the central management is required to take;

(b) the date of the failure of the central management; and

(c) the period within which the order must be complied with.

In its statement of case the Complainant had said that if the Panel were minded to uphold the complaint it would welcome the opportunity to comment on what any such order should say. The Employer had submitted, under the third issue, that the complaint was an abuse of process because of the combination of the extensive delay in bringing it and the lack of a meaningful remedy which the Employer contended meant that the CAC process was being used “in a way significantly different from its ordinary and proper use” (see further paragraph 39 below). In view of that submission the Panel Chair asked the Complainant to specify what remedy it was seeking. The Complainant asked the Panel to make an order in the following terms:

1) To provide details on employee numbers at each location within the Relevant States so as to enable employees to ascertain the number of representatives for each country that will form an EWC under the TICER subsidiary requirements;

2) To liaise with ^{[footnote 9]} local management in each Relevant State to facilitate the election or appointment of EWC members in accordance with national law or practice;

3) Once established, to commit in writing to provide the EWC representatives with the means required to undertake training in accordance with regulation 19B and to permit them to take paid time off to undertake that training in accordance with regulations 25 and 26;

4) To hold a first meeting of the EWC in accordance with paragraph 7 of the subsidiary requirements.

The Complainant proposed that the CAC should require parts 1-3 of the order to be complied with within two calendar months and part 4 to be complied with within six calendar months.

31) The Complainant said that, were the complaint to be upheld, even if the CAC declined to make an order the Employer would still be required to set up an EWC under the subsidiary requirements.

12. Summary of the Employer’s submissions

12.1 The first issue

32) The Employer said that whether a claim could be brought under amended TICER depended on whether regulation 18(1)(b) or regulation 18(1)(c) applied before exit day. The Employer submitted that the obligation to negotiate in a spirit of co-operation contained in regulation 17(1) of TICER applied to all individuals engaged in the process at every stage including regulation 18.

33) The Employer submitted that regulation 18(1)(b) did not apply because there had been no refusal to commence negotiations; the matter had simply fallen off the radar of both parties. The Employer submitted that the relevant question was whether there had been a refusal to commence negotiations since the withdrawal of the 2017 complaint and that letters written in 2016 were not relevant because they had been dealt with in the 2017 complaint which was then withdrawn. The Employer said that nothing had been heard from the Union on the subject of an EWC for five years since 2017 and there was no evidence that anyone from the Union side had been engaging in the process. The Employer submitted when nothing happened for five years there had been no spirit of cooperation from either side. The Employer drew attention to paragraph 48 of Lean v Manpower ^{[footnote 10]}, set out in paragraph 34 below, in support of its submission that there was a duty to negotiate in a spirit of cooperation. The Employer denied there had been any prevarication and said that the parties had been in discussion about other matters over this period. The Employer exhibited a witness statement from John Allen, the HR Director for the UK Poultry Group since June 2017, detailing some of these discussions. Mr Allen said that at no point since his appointment as HR Director had there been any mention by the Union about the establishment of an EWC until he was contacted by Bev Clarkson in March 2022. Mr Allen said that Mr Perry, the People and Compliance Director who had liaised with the Union and the CAC regarding the establishment of an EWC and dealt with the Employer’s response to the 2017 complaint, had left the Employer in November/December 2018. Mr Allen said that after Mr Perry’s departure he was the main contact point for the Union and would have been aware if the question of progressing an EWC had been raised formally or informally as an agenda item.

34) The Employer submitted that regulation 18(1)(b) required an actual refusal of something specific and did not allow for an implied refusal. The Employer said that the Employer had never said it would not establish an EWC and there had been no actual refusal nor could an actual refusal be read into what had occurred. The Employer said that in any event there had been no implied refusal. The Employer said that regard needed to be had to the whole factual matrix and neither party was addressing the issue. The Employer pointed to the change of personnel in both itself and the Union and said that neither side had been aware of the EWC issue; it had simply not been addressed.

35) The Employer submitted that regulation 18(1)(c) did not apply to this case. The Employer referred to Lean where the EAT interpreted the phrase “failed to conclude an agreement” as the parties being “unable to conclude an agreement”. The Employer cited the following paragraphs:

43- Secondly, on its proper construction regulation 18(1)(c) is not to be read as if its conditions for application of the Schedule are merely the expiry of three years without agreement being reached. In my judgment the natural meaning of the words the parties have failed to conclude is something more than the parties have not concluded. That something more is made clear by the language of article 7 of Directive 2009/38, which identities the circumstance that the parties are unable to conclude an agreement. I recognise that recital 32 of the Directive requires further provision to be made in the absence of agreement, but the relevant provision in article 7 adopts the distinct language of inability to conclude an agreement. In my judgment this interpretation of failed to conclude as meaning are unable to conclude is a permissible interpretation of regulation 18(1)(c) which does not go against the grain of the Regulations. On the contrary it accords with the principle of the autonomy of the parties and the aim of consensus. If the parties consider that continued negotiation may result in agreement, there is no reason why the mere passage of time should prevent them continuing on that course.

48- Fifthly, I do not accept that the consequence is that negotiations may be continued interminably and against the interests of employees such as the claimant. The construction of these statutory provisions must be on the basis that each party is negotiating in good faith and in accordance with its duty under regulation 17(1). There is nothing to suggest that either party failed to do so.

The Employer stated that this authority was binding on the CAC. The Employer submitted that on the facts of this case there was no evidence that, until exit day, the parties were unable to conclude an agreement; the parties were perfectly able to come to conclude an agreement. The Employer also submitted that there could be no suggestion that the Employer had failed to act in good faith and in accordance with its duty under Regulation 17 in circumstances where the Union did not pursue the establishment of an EWC. The Employer said that the Union had pursued a raft of matters with the Employer but on no occasion had it mentioned an EWC; there was simply no communication whatsoever about the request from the Union, despite numerous meetings discussing other issues. The Employer said that plainly on exit day the parties were then unable to conclude an agreement because the relevant parts of TICER fell away. However, for Regulation 20 to bite, the inability to conclude an agreement must have arisen before exit day; on the facts of this case, that did not occur and consequently no claim could be brought under Regulation 20.

36) The Employer rejected the Complainant’s submission that regulation 18(1)(c) could be read to cover the situation where the parties were unable to conclude an agreement where there were no parties because an SNB did not exist. The Employer said that regulation 18(1)(c) required parties as defined in regulation 17(2) and those parties either existed or they did not. The Employer said there could have been an SNB but it needed a ballot and none had been held.

12.2 The second issue

37) The Employer contended that a time limit should be implied into regulation 20 of amended TICER and that the absence of a time limit was an obvious lacuna and a parliamentary oversight. The Employer referred to the following three provisions in support of its submission.

1) Article 11 of the Directive:

(2) Member States shall provide for appropriate measures in the event of failure to comply with this Directive; in particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Directive to be enforced.

2) Article 6 European Convention on Human Rights:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….

3) Article 16 of the European Charter of Fundamental Rights, which recognises the freedom to conduct a business in accordance with Union law and national laws and practices.

The Employer submitted that the CAC determination of whether there had been a breach of Regulation 20 of amended TICER would amount to a determination of the Employer’s civil obligations, particularly in light of their Article 16 Charter freedom to conduct their business. The Employer submitted that Article 6 of the ECHR “bites” and the Employer had the right to that determination taking place within a reasonable time. The Employer submitted that on the Complainant’s case a claim could be brought at any time if there had been a historic request for the establishment of an EWC. The Employer said that, although in this case the delay was five years, there was no reason on the Complainant’s case why a claim could not be brought about a request that was made when TICER was first introduced, and nothing had been done about it since then, or in 30, 40 or 50 years’ time, and that this could not be right. The Employer submitted that in those circumstances, and in order to give effect to Article 11 Directive 2009/38 read together with Article 6 ECHR and Article 16 of the Charter, it was necessary to imply a time limit into Regulation 20. The Employer stated that it would not go against the grain of the legislation to imply a time limit of six months particularly given a similar time limit in regulation 21 of amended TICER. ^{[footnote 11]}

38) The Employer submitted that Article 16 of the European Charter of Fundamental Rights was of particular relevance since Brexit because of the disjunct between the position under the Directive and in UK law. The Employer said that under the Directive there would need to be a representative agent in an EU Member State so that the Employer could be required to have either two EWCs, one based in the UK and one in Poland or The Netherlands, or a single EWC in Poland or The Netherlands. The Employer said that its inability to comply with both UK law and the Directive would place the Employer in an impossible position and that this was a further reason that the Panel should imply a time limit into regulation 20.

12.3 The third issue

39) The Employer submitted that the Complainant’s claim was an abuse of process and should not be permitted to proceed. The Employer said that an abuse of process had been defined as “using that process for a purpose or in a way significantly different from its ordinary and proper use”. ^{[footnote 12]} The Employer said that, while delay alone would not amount to an abuse of process, in this case before the CAC there was the additional matter that, post-Brexit, there was no meaningful remedy open to the Complainant: no EWC could now be established because Regulations 9 and 10 were no longer operational and UK staff could play no part in any future EWC established in Poland (the only operations for the Employer outside the UK being in Poland and The Netherlands).^{[footnote 13]} The Employer said that consequently the application that had been brought by the Complainant could not be in order to require the Employer to establish an EWC, which was the purpose of Regulation 20. The Employer said that the CAC process was thus being used “in a way significantly different from its ordinary and proper use” and that in the light of the extensive delay, and the lack of meaningful remedy, it was an abuse of process now to bring this claim.

40) The Employer submitted that the EAT decision in easyJet was confined to the question of whether the CAC had jurisdiction to hear the matter. The Employer said that as soon as EWC members were elected in Poland under the subsidiary requirements Article 4(2) of the Directive would bite and there would be no obligation to have UK representatives on the EWC. ^{[footnote 14]}

41) The Employer referred to the Complainant’s submission that in the event that the Panel found the complaint to be well-founded it should make an order under regulation 20(4) of amended TICER (see paragraph 30, above). The Employer emphasised that regulation 20(4) of amended TICER states that the CAC may make an order; it was not required to do so and the Employer submitted that it would not be appropriate to do so in this case.

42) The Employer addressed specific parts of the order proposed by the Complainant. The Employer said that it had no problem complying with part 1 of the proposed order and that no order was therefore required to cover those actions. The Employer said that the second part of the order was unworkable and asked what was meant by national law or “practice”; the Employer questioned whose practice was being referred to and what that meant. The Employer questioned how the third part of the order would be enforced and said that the fourth part was unworkable. The Employer also contended that if were required to implement parts 3 and 4 of the order proposed by the Complainant it would be in breach of its obligations under the Directive; there would in effect be two laws which could conflict.

43) The Employer said that an EWC has being sought for the whole of the Employer’s group and asked the Panel to note that this was a very broad group of companies and that it would involve a substantial amount of time and resources to establish an EWC across the entire business. The Employer said that the Panel should not find that the complaint was well-founded and that no order should be made as any order would be unworkable; impractical; and would risk the Employer being in breach of the laws of EU Member States. The Employer said that an order would be the antitheses of the ethos of TICER which was about employers and unions working together and would present significant practical challenges. The Employer submitted that the Union could have a voluntary agreement with the Employer which would achieve the same purposes as an EWC and that the Panel should not make an order which would raise vast complexities when the Employer was willing to have voluntary arrangements.

13. Considerations

13.1 The first issue

44) The first issue that the Panel is required to consider is whether a claim could be brought under regulation 20 of amended TICER after the UK’s departure from the EU. Regulation 20 of amended TICER so far as material reads as follows:

1) A complaint may be presented to the CAC by a relevant applicant who considers –

a) that the parties have reached agreement before exit day on the establishment of a European Works Council or an information and consultation procedure, or that regulation 18 applies before exit day; and

b) that, because of a failure of the central management, the European Works Council or information and consultation procedure has not been established at all, or has not been established fully in accordance with the terms of the agreement made before exit day under regulation 17 or, as the case may be, in accordance with the provisions of the Schedule.

2)In this regulation “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management.

3) In this regulation “relevant applicant” means –

a) in a case where a special negotiating body exists, the special negotiating body; or

b) in a case where a special negotiating body does not exist, an employee, employees’ representative, or person who was a member of the special negotiating body (if that body existed previously). ^{[footnote 15]}

4) Where the CAC finds the complaint well- founded it shall make a decision to that effect and may make an order requiring the central management to take such steps as are necessary to establish the European Works Council or information and consultation procedure in accordance with the terms of the agreement made before exit day under regulation 17 or, as the case may be, to establish a European Works Council in accordance with the provisions of the Schedule.

(6) An order under paragraph (4) shall specify –

(a) the steps which the central management is required to take;

(b) the date of the failure of the central management; and

(c) the period within which the order must be complied with.

Regulation 18 of amended TICER states:

The provisions of the Schedule continue to apply on and after exit day in any case where they applied before exit day.

Regulation 18(1) of TICER provides that

The provisions of the Schedule shall apply if –

(a) the parties so agree;

(b) within the period of six months beginning on the date on which a valid request referred to in regulation 9 was made, the central management refuses to commence negotiations; or

(c) after the expiry of a period of three years beginning on the date on which a valid request referred to in regulation 9 was made, the parties have failed to conclude an agreement under regulation 17 and the special negotiating body has not taken the decision under regulation 16(3).

Regulation 17(2) states that:

In this regulation and regulations 18 and 20, the central management and the special negotiating body are referred to as “the parties”.

Neither the Complainant nor the Employer sought to argue that regulation 18(1)(a) applied to this case. The Panel has therefore considered carefully whether either 18(1)(b) or 18(1)(c) applies.

45) The Employer submitted that, in considering whether the central management had refused to commence negotiations for the purpose of regulation 18(1)(b), the Panel should consider only events occurring after the withdrawal of the 2017 complaint on 22 May 2017. The Panel does not accept that submission. The 2017 Complaint was withdrawn by the Complainant on the understanding that the Employer would now make progress in implementing its statutory obligations and before the CAC had made any determination of the issues raised. The Panel has concluded that it is entitled to examine all the evidence following the Employer’s receipt of the request dated 27 July 2015.

46) The Employer submitted that the duty of co-operation laid down in regulation 17(1) applied to the actions of all individuals involved in all processes laid down in TICER including regulation 18. Regulation 17(1) reads as follows:

The central management and the special negotiating body are under a duty to negotiate in a spirit of cooperation with a view to reaching a written agreement on the detailed arrangements for the information and consultation of employees in a Community-scale undertaking or Community-scale group of undertakings.

The Panel notes that regulation 17(1) applies specifically to the central management and the SNB and the Panel considers that its application is confined to the activities of those parties. ^{[footnote 16]} The Panel notes that Lean, referred to by the Employer in this context, refers to the duty of cooperation in relation to regulation 18(1)(c). The Panel does not, therefore, accept the Employer’s submission that the obligations on the Employer which arise prior to the establishment of an SNB are subject to or modified by the application of regulation 17(1).

47) The Employer submitted that regulation 18(1)(b) was confined to situations where there was an actual refusal to negotiate and that the Employer had never said that it would not establish an EWC. The Employer contended that there was no scope for an implied refusal and that in any event there was no refusal of any kind in this case; the factual matrix showed that neither party was addressing the issue. The Complainant submitted that an Employer could not claim that it was not explicitly refusing to negotiate and then evade the six-month deadline in regulation 18(1)(b): it was clear that the Employer did not want an EWC and had de facto refused to commence negotiations or could be deemed to have refused. The Complainant submitted that any other interpretation would leave the six- month deadline valueless.

48) The Panel accepts that “refuses” in the context of regulation 18(1)(b) cannot be equated with mere “failure” to commence negotiations. The Panel also notes that there is no evidence of any communications between the parties relating to negotiations for the establishment of an EWC in the six- month period following the request of 27 July 2015, although the request itself set out the nature of the Employer’s obligations which followed from the request (see paragraph 4 above) and the Employer did not take the opportunity afforded under regulation 10 of TICER to challenge, within three months of the request, the validity of the request or to dispute the application of regulation 9(1).^{[footnote 17]} There is evidence before the Panel of a discussion between the Union and the Employer relating to an EWC at the Poultry Consultation Forum in November 2016. The Complainant and the Employer have very different recollections of these discussions. The Employer’s account, set out its response to the 2017 complaint dated 29 March 2017, reads as follows:

Our key question to Unite Representatives was that given the decentralized nature of our businesses, and we have no transnational issues which bind us together, what will we talk about in an EWC meeting, and what will the agenda be? The Representatives of Unite said they would reflect on the conversation and come to us with their views on what we had said, and the intention was to continue the discussion outside the Poultry Consultation Forum. In view of this, we are somewhat surprised that the first we hear back from Unite is that they have made a complaint to the CAC.

Our position on the formation of a 2SFG EWC is clear in that we understand that we, as a Group, fall within the scope of the legislation. We do not dispute that under current legislation, therefore, we can proceed to set up a EWC. However, we have always been keen to ensure that the role and purpose of the EWC is understood by all parties and that if we set one up it needs to deliver some value both to the Company and to the Employee Representatives. Our concern is that it will not deliver value to either, but to be clear, at no point have we said that we refuse to commence discussions to set up an EWC.

In its comments on the Employer’s account set out in its response the Union stated that it was Union representatives who had raised the issue of the EWC at the Poultry Consultation Forum and that Mr Perry had categorically stated at that meeting that the Employer had no intention whatsoever of establishing an EWC. The Panel has no evidence which enables it to assess which of these competing accounts is accurate.^{[footnote 18]} However the Panel notes that, on the basis of its own account of the meeting, the Employer was sceptical about what the parties would talk about in an EWC and stated that “if we set one up it needs to deliver some value both to the Company and to the Employee Representatives.” The Employer seemed, therefore, to regard an answer to its concerns about the value that an EWC would deliver as a question to be addressed prior to complying with its legal obligation to initiate negotiations for the establishment of an EWC under regulation 9(1) of TICER.

49) It is undisputed that the Employer did not take any steps to establish an SNB during the six months following the request of 27 July 2015. The Panel accepts the Complainant’s submission that once a valid request had been made the Employer’s duty to initiate negotiations for the establishment of an EWC under regulation 9(1) of TICER was an outright obligation and not subject to the Employer’s concerns about the value that establishing an EWC would have to the Employer or to employee representatives. In the absence of any evidence to the contrary the Panel considers it highly likely that the Employer’s concerns about the value of an EWC articulated in November 2016 – some 15 months after the request - informed its approach to the implementation of its obligation to initiate negotiations for the establishment of an EWC in the six months immediately following the request and led to no action being taken to comply with those obligations before the six month deadline expired.

50) The Panel notes that Mr Perry stated in his response to the 2017 complaint

Our concern is that it will not deliver value to either, but to be clear, at no point have we said that we refuse to commence discussions to set up an EWC.

The Panel accepts the Complainant’s submission that it would render the six-month deadline valueless if it was open to an Employer to refrain from implementing its obligation to initiate negotiations on the grounds that it was concerned about the value that an EWC would deliver whilst maintaining that it was not “refusing” to commence negotiations to set one up. Having considered carefully the factual background to this case and the documentary material available to it the Panel has concluded that the Employer’s inaction during the six- month period following the request was tantamount to a “refusal” to commence negotiations and that the provisions of the Schedule applied as from 27 January 2016. ^{[footnote 19]}

51) The Complainant submitted that, if the Panel did not accept that the subsidiary requirements applied under regulation 18(1)(b) as from 27 January 2016, they applied on the later date of 27 July 2018 under regulation 18(1)(c) on the ground that the parties had failed to conclude an agreement under regulation 17. The Complainant acknowledged that under regulation 17(2) “the parties” in regulation 18 were defined as the central management and the special negotiating body but submitted that regulation 18(1)(c) should be read as covering the situation where the parties were unable to agree because there was no SNB in existence. The Employer contended that regulation 18(1)(c) required “the parties” as defined in regulation 17(2) to exist and they were either there or they were not, regardless of the reasons for their non-existence. The Panel accepts the Employer’s submission and does not consider that regulation 18(1)(c) applies in this case.

13.2 The second issue

52) It is common ground between the parties that there is no time limit on claims under regulation 20 of amended TICER on the face of the regulation. The Employer contended that this was an oversight by Parliament and that the Panel should imply a time limit into regulation 20 which it suggested should be six months. The Employer relied on three provisions in support of its submission:

1) Article 11 of Directive 2009/38/ECs:

(2) Member States shall provide for appropriate measures in the event of failure to comply with this Directive; in particular, they shall ensure that adequate administrative or judicial procedures are available to enable the obligations deriving from this Directive to be enforced.

2) Article 6 European Convention on Human Rights:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….

3) Article 16 of the European Charter of Fundamental Rights recognises the freedom to conduct a business in accordance with Union law and national laws and practices.

The Employer submitted that the CAC determination of whether there had been a breach of Regulation 20 of amended TICER would amount to a determination of the Employer’s civil obligations, particularly in light of their Article 16 Charter freedom to conduct their business, and that the Employer had the right to that determination taking place within a reasonable time. The Employer submitted that on the Complainant’s case a claim could be brought at any time if there had been a historic request for the establishment of an EWC, however far back that had been, and that in those circumstances, and in order to give effect to Article 11 Directive 2009/38 read together with Article 6 ECHR and Article 16 of the Charter, it was necessary to imply a time limit into Regulation 20. The Employer further submitted that Article 16 of the European Charter of Fundamental Rights was of particular relevance since Brexit because of the disjunct between the position under the Directive (which required a representative agent in an EU Member State) and in UK law and that this would place the Employer in an impossible position and that this was a further reason that the Panel should imply a time limit into regulation 20.

53) The Complainant submitted that the absence of a time limit on claims under regulation 20 of amended TICER was a deliberate choice by Parliament and that the Employer could not use the passage of time to evade its obligations. The Complainant said that the Employer had an indefinite obligation to establish an EWC in the same way as, had it established an EWC, it would have had an indefinite obligation to operate it. The Complainant said that the terms of Article 11 of the Directive reinforced the Complainant’s case as there was a failure to comply by central management with its obligations which needed to be remedied and that no caselaw had been cited by the Employer in relation to Article 6 of the ECHR. In relation to Article 16 of the European Charter of Fundamental Rights the Complainant said that it was not seeking to prevent the Employer conducting its business; rather it wanted the Employer to conduct its business in accordance with national laws. The Complainant denied that there was any requirement on the Employer to establish an EWC under Polish law or under the law of any other EU Member State.

54) The Panel has considered carefully the Employer’s submissions that it should imply a time limit into regulation 20 of amended TICER. The Employer did not provide any caselaw in support of any of its submissions that the Panel should imply a time limit where none was present on the face of regulation 20 and the Panel does not consider it necessary or appropriate that it should do so on the basis of those submissions. The Panel does not consider the complaint to be time-barred under regulation 20 of amended TICER.

13.3 The third issue

55) The Employer submitted that the Complainant’s claim was an abuse of process and should not be permitted to proceed. The Employer said that an abuse of process had been defined as “using that process for a purpose or in a way significantly different from its ordinary and proper use”. ^{[footnote 20]} The Employer said that, while delay alone would not amount to an abuse of process, in this case before the CAC there was the additional matter that, post-Brexit, there was no meaningful remedy open to the Complainant: no EWC could now be established because Regulations 9 and 10 were no longer operational and UK staff could play no part in any future EWC established in Poland (the only operations for the Employer outside the UK being in Poland and The Netherlands).^{[footnote 21]} The Employer said that consequently the application that had been brought by the Complainant could not be in order to require the Employer to establish an EWC, which was the purpose of Regulation 20. The Employer said that the CAC process was thus being used “in a way significantly different from its ordinary and proper use” and that in the light of the extensive delay, and the lack of meaningful remedy, it was an abuse of process now to bring this claim.

56) The Panel does not accept that the complaint constitutes an abuse of process; in particular it does not agree that no meaningful remedy is now open to the Complainant. The Employer contended that no EWC could now be established because Regulations 9 and 10 are no longer operational and UK staff could play no part in any future EWC established in Poland. However this submission overlooks the fact that the obligation to establish an EWC under the subsidiary requirements of TICER has been in place since 27 January 2016 and that it is irrelevant that regulations 9 and 10 no longer apply. The Panel is also satisfied that regulation 18 of amended TICER, which states that the provisions of the Schedule continue to apply on or after exit day in any case where they applied before exit day, applies in this case and that the Complainant is able, therefore, to seek a meaningful remedy under regulation 20 of amended TICER.

57) The Complainant asked the Panel to make an order in the terms set out in paragraph 30 above. The Employer was strongly opposed to any order being made and emphasised that there was no compulsion on the Panel to do this in the event that it found the complaint to be well-founded; it was purely a matter for the Panel’s discretion.

58) For the reasons set out in paragraph 56 above, the Panel has no doubt that it has the capacity to make a meaningful order and has considered carefully whether it should exercise its discretion to do so at this stage. The Panel considers that the conduct of the Employer in relation to this complaint gives good grounds for thinking that an order should be made to avoid any further delay in establishing an EWC. Against that, the Panel is mindful that the interests of good industrial relations may be better served by giving the Employer the opportunity to comply with its legal obligations in relation to the provisions of the Schedule to TICER (the subsidiary requirements) in the absence of an order. In this connection the Panel notes the Employer’s offer in its letter to the Case Manager of 18 October 2022 to consider the benefits of an EWC outside the legal framework (see paragraph 13 above). This letter was clearly based on the assumption that since the UK had left the EU there was no basis on which an EWC could be established under TICER. The Panel hopes that as a result of this decision the Employer will be assured that there is a basis on which an EWC can, and indeed should, be established under TICER

59) The Panel has concluded that in the interests of good industrial relations it should not make an order at this stage and hopes that the Employer will now act expeditiously to comply with its legal obligations. However, if the CAC is informed that the central management has failed to take such steps as are necessary to establish an EWC in accordance with the provisions of the Schedule by 30 June 2023 the CAC will give fresh consideration to the question of whether an order should be made in relation to the complaint. The Complainant will have until 31 July 2023 to inform the CAC that the central management has failed to take such steps as are necessary to establish an EWC in accordance with the provisions of the Schedule. If the CAC is so informed, it will invite submissions from the parties as to whether an order should be made. These submissions may, but need not be, based on or confined to those which have already been made by the parties as to the merits of making an order or the specific details of any order that the CAC may make. If the CAC is not informed that the central management has failed to take such steps as are necessary to establish an EWC in accordance with the provisions of the Schedule by 31 July 2023 the case will be closed by the CAC.

60) The Employer contended that the terms of the order proposed by the Complainant at the hearing was unworkable; impractical; and risked the Employer being in breach of the laws of EU Member States. In the light of the Panel’s decision not to impose an order at this stage it has made no findings on the merits of the parties’ submissions relating to the terms of the order that the Complainant proposed.

14. Decision

61) The complaint under regulation 20 of amended TICER that, because of a failure of the central management, a European Works Council has not been established at all in accordance with the provisions of the Schedule to the Regulations as required by regulation 18 of TICER is well-founded.

62) In the exercise of its discretion under regulation 20(4) of amended TICER the CAC has decided that no order should be made in relation to the complaint at this stage.

63) The Panel has further decided that, if the CAC is informed that the central management has failed to take such steps as are necessary to establish an EWC in accordance with the provisions of the Schedule by 30 June 2023, the CAC will give fresh consideration to the question of whether an order should be made in relation to the complaint. The Complainant will have until 31 July 2023 to inform the CAC that the central management has failed to take such steps as are necessary to establish an EWC in accordance with the provisions of the Schedule. If the CAC is so informed, it will invite submissions from the parties as to whether an order should be made. These submissions may, but need not be, based on or confined to those which have already been made by the parties as to the merits of making an order or the specific details of any order that the CAC may make. If the CAC is not informed that the central management has failed to take such steps as are necessary to establish an EWC in accordance with the provisions of the Schedule by 31 July 2023 the case will be closed by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr David Coats

Mr Robert Lummis

25 January 2023.

15. Appendix

Names of those who attended the hearing on 12 January 2023.

For the Complainant

Iulian Firea - Unite regional convenor, West Midlands, 2Sisters

Bev Clarkson - National Officer Food, Drink & Agriculture, Unite

Jonathan Hayward - International Officer, Unite

Philip Sack - Director, EWC Legal Advisers

For the Employer

Sarah Fraser Butlin - Counsel

Lee Greenbury - Group Director of People & Compliance, 2 Sisters Food Group

John Allan - HR Director UK Poultry division of 2 Sisters Food Group

Matthew Hill - General Counsel, 2 Sisters Food Group

Rupert Parker - Legal Counsel, 2 Sisters Food Group

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1. In this decision we refer to The Transnational Information and Consultation of Employees Regulations 1999 prior to their amendment by The Employment Rights (Amendment) (EU Exit) Regulations 2019 as “TICER” and The Transnational Information and Consultation of Employees Regulations 1999 following their amendment by The Employment Rights (Amendment) (EU Exit) Regulations 2019 as “amended TICER”. ↩

2. This quotation, and the other contents of this paragraph, are taken from Principle 1 of the Governance Report included in the Annual Report and Financial Statements of Boparan Holdings Limited (the parent company which owns, directly or indirectly, companies constituting the 2 Sisters Food Group of companies) for the 52 weeks ending 31 July 2021 which was included in the agreed bundle for the hearing of this case. ↩

3. In this decision the complaint at issue was brought by Mr Firea, an employee of the Employer and an employees’ representative. The correspondence on behalf of the Complainant was dealt with by Unite the Union (“the Union”) and much of that correspondence, and the parties’ submissions and statements of case, refer to the acts and omissions of the Union rather the individual Complainant. In this decision we have therefore used the terms Complainant and Union interchangeably, depending on the context. ↩

4. These minutes were not included in the evidence submitted for the purposes of this decision. ↩

5. See paragraphs 9 and 10 above. ↩

6. Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009. ↩

7. Amended TICER regulation 20(7), (7A), (8). ↩

8. [2022] EAT 162 ↩

9. The Complainant originally asked that the Employer should be required to “instruct” local management. This was amended to “liaise” after the Employer said that it had no means of instructing local management. ↩

10. Above, paragraph 17. ↩

11. The Employer also noted that a one-month time limit exists in relation to the establishment of a Special Negotiating Body under the European Public Limited-Liability Company Regulations 2004. ↩

12. Attorney General v Barker [2000] EWHC 453 Admin ↩

13. Cf paragraph 3 above where reference is made in addition to the Republic of Ireland. This discrepancy is not material to the Panel’s decision. ↩

14. Article 4(2) states that where the central management is not situated in a Member State, the central management’s representative agent shall take on the responsibility referred to in paragraph 1. Article 4(1) states that the central management shall be responsible for creating the conditions and means necessary for the setting-up of an EWC or an information and consultation procedure. ↩

15. There was no suggestion by the Employer that Mr Firea, as an employee of the Employer and an employees’ representative, was not a “relevant applicant”. ↩

16. The Panel notes, in parentheses, that the Employer submitted in relation to regulation 18(1)(c) that the definition of “the parties” in regulation 17(2) should be strictly construed and that regulation 18(1)(c) should be confined to the situation where an SNB had been created : see paragraph 36 below. The Panel has reached its decision that regulation 17(1) should be confined to the parties specified independently of that submission. ↩

17. The Union’s response to the Employer’s response to the 2017 complaint, dated 6 April 2017, refers to the Union having “on numerous occasions” attempted to engage central management in dialogue on the establishment of an SNB and election of UK representatives but the document exhibited in support of this is dated 11 March 2016 and therefore falls outside the six-month period immediately following the request: see further paragraphs 6 and 7 above. ↩

18. In his response on behalf of the Employer dated 29 March 2017 Mr Perry stated that he had attached a copy of the minutes of that meeting on this topic. As stated in note 5 above, these minutes were not provided in evidence for the purposes of this decision. ↩

19. In earlier correspondence relating to this case the Employer had stated that, under regulation 16(3) of TICER, it would have been open to the SNB to decide, by at least two thirds of the votes cast by its members, not to open negotiations with central management or to terminate negotiations with the result that SNB negotiations would cease and there would be no obligation to establish an EWC. The Complainant responded that an SNB had never had the opportunity to consider taking such a decision because the Employer failed to establish an SNB. For the sake of completeness, the Panel does not consider that regulation 16(3) modified or otherwise affected the duties on the Employer to establish an SNB. ↩

20. Attorney General v Barker [2000] EWHC 453 Admin ↩

21. See note 13 above ↩