Decision

Decision

Updated 8 March 2021

Applies to England, Scotland and Wales

Case Number EWC/32/2020

05 March 2021

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 1999 AS AMENDED

DECISION ON A COMPLAINT UNDER REGULATION 21

The Parties:

Adecco Group European Works Council

and

Adecco Group

1. Introduction

1) On 24 November 2020, Mr. Philip Sack of EWC Legal Advisers submitted a complaint to the CAC on behalf of the Adecco Group European Works Council (“AEWC”), (the Complainant) under Regulation 21 of the Transnational Information and Consultation of Employees Regulations 1999, as amended (TICER) in relation to the actions of Adecco UK (the Employer), which was the representative agent of the Adecco Group at the date of the complaint. The CAC gave both parties notice of receipt of the complaint on 25 November 2020. The Employer submitted a response to the CAC on 1 December 2020 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. Robert Lummis and Mr. Gerry Veart as Members. The Case Manager initially appointed to support the Panel was Nigel Cookson; subsequently this role was fulfilled by Kate Norgate.

2. Background

3) Adecco Group AG (“Adecco CH”) is a Swiss company. It owns subsidiaries through which it conducts its global talent advisory and solutions business. These companies together form a corporate group (the “Adecco Group”). Olsten (UK) Holdings Limited (“Adecco UK”) was the representative agent of Adecco CH for European Works Council purposes on the date of the complaint. On 24 May 2018 the AEWC entered into the Amended and Restated Agreement of the Adecco Group European Works Council (“the Agreement”) with the Employer; this replaced a previous agreement dated 11 December 2013. It was common ground between the parties that the Agreement was governed by TICER at the date of the complaint. Provisions of the Agreement of particular relevance to this case are as follows:

Opening paragraph of the Agreement

The Corporate Management of the Adecco Group, with its representative Agent being Olsten UK Holdings Ltd., a company duly incorporated and existing under the laws of the United Kingdom, with registered offices at Millennium Bridge House, 2 Lambeth Hill, London, EC4V 4BG, UK and the Special Negotiation Body consisting of the Adecco Group Employee Representatives in the European Economic Area (EEA), have agreed on the setting up of the Adecco Group European Works Council (AEWC).

Final sentence of the Preamble

This Agreement shall be completed by the AEWC Rules of Procedure.

Clause II – Scope

The Agreement extends to companies (and future companies) of the Adecco Group in the countries part of the EEA, the United Kingdom and Switzerland in which Adecco or its subsidiaries operate. The information and consultation within the AEWC shall be limited to transnational matters. Matters are considered as transnational where they concerned (sic) or have potential effects at least on two undertakings of the Group situated in two different EEA countries on (sic) the Community-scale group of undertakings as a whole.

Clause II.1 – Local Matters and Issues

Issues which relate to one or more undertakings in one or more participating countries and which relate inter alia to day-to-day management, remuneration, compensation, benefits, rights, terms and conditions of employment, staffing levels of the single country and other issues of similar kind will be excluded from discussion under these procedures as they are to be dealt with specifically through local or national information and consultation arrangements.

Clause III.4.2 – AEWC Steering Group

A Steering Group consisting of 5 Employee Representatives and Substitutes shall be set up (the “Steering Group”). The Steering Group shall serve as the channel to communicate with the Adecco management between the Annual Plenary Meetings and to attend Extraordinary Meetings as defined in Clause V.1.4.

Clause IV.1 – Information

Information in the context of this Agreement is defined as: timely, taking into account reasonable expectations, communication of data on topics covered by this Agreement, and all elements required for the employee representatives to understand the data in order to develop a reasoned opinion.

The AEWC definition of information is linked to the definition of information provided by the EC Directive 2009/38 and its jurisprudential interpretation within the country of the applicable law and the Court of Justice of the European Union.

The content of the information, the time when, and the manner in which it is given, must be such as to reasonably enable the Employee Representatives within the AEWC to:

a) acquaint themselves with and examine its subject matter;

b) undertake a detailed assessment of its possible impact; and

c) where appropriate, prepare for consultation.

Clause IV.3 – Link with local level information and consultation

The AEWC and any local level information/consultation shall run concurrently and shall not delay or impede the other’s progress. Delivery of any Employee Representatives’ opinion at the AEWC level shall not prevent or delay implementation of any decision that is subject to local consultation rights and obligations.

Clause V.1 – The Annual Plenary Meeting

The AEWC shall hold an annual meeting (the “Annual Plenary Meeting”) which shall take place on a site designated by Management and shall be attended in person ….

The Annual Plenary Meeting shall be preceded by the distribution of an agenda (the “Agenda”). The AEWC Co-ordinator shall prepare a draft of the Agenda in consultation with the Spokesperson of the Steering Group 5 weeks before the date of the Annual Plenary Meeting or as soon as possible thereafter and in any case no later than 2 weeks before the date of the Annual Plenary Meeting.

The Agenda will include information and dialogue on transnational matters, relating to the Adecco Group within the geographical scope of this Agreement, in particular concerning the structure, economic and financial situation, the probable development of the business and of service provision, sales, the situation of employment including substantial changes concerning organisation, outsourcing, major collective redundancies and layoffs of the workforce, transnational health and safety issues, introduction of new working methods and technology, training, corporate social responsibility, as well as an update on on-going integration of newly acquired companies….

Clause V.1.3 – The Steering Group Annual Meeting

Other than on occasion of the regular AEWC Annual Plenary Meeting, the Steering Group shall meet once a year (the “Steering Group Annual Meeting”), unless the Steering Group and the AEWC Co-ordinator consider the meeting not necessary. The Steering Group Annual Meeting will include a meeting among the Employee Representatives themselves and another meeting including Management Representatives in order to discuss ongoing issues, and to be informed on new developments on Agenda items.

Clause V.1.4 – Extraordinary Meetings

Extraordinary Meetings will be convened to provide information and engage in Dialogue with the Steering Group on the following transnational matters where exceptional circumstances or decisions arise:

a) in the event of substantial relocations, and

b) in the event of collective redundancies which significantly affect existing Adecco Employees in each of at least two EEA countries in which Adecco has employees:

c) in the event of an acquisition of a substantial business having transnational effect….

An Extraordinary Meeting of the Steering Group will be convened at the same time or as soon as reasonably practicable after (and in any event within five working days after) the relevant circumstances or decision are announced in the affected Countries to local works councils, trade unions, or other Employee Representatives as required by local laws.

The AEWC and local level information shall run concurrently and neither shall prevent or delay the other’s progress. It is expressly understood that an Extraordinary Meeting shall not prevent the Adecco Group taking decisions in a timely manner and shall not affect the prerogatives of Management.

The Employee Representatives summoned and entitled to attend Extraordinary Meetings shall be those designated as members of the Steering Group in accordance with Clause III.1 above.

The Steering Group and Management Representatives will agree on extending the invitation to AEWC members representing the Countries most affected by the exceptional circumstances.

Extraordinary Meetings may take place if time and logistics allow in person, otherwise preferably by telephone or videoconference depending on the transnational issue under consideration, as recommended by the Steering Group and organised by the AEWC Co-ordinator.

Clause VIII – Rules of Procedure

The Steering Group in consensus with the AEWC Co-ordinator shall adopt procedural rules for the AEWC.

Should any inconsistencies or discrepancies arise between those own (sic) procedural rules and the content of this AEWC Agreement, the content and principles as stated out in this AEWC Agreement shall prevail.

Clause IX.1 – Applicable law

This Agreement shall be legally binding and shall have the standing of an Agreement under Directive 97/74/EC and Directive 2009/38/EC, as implemented in UK Statutory Instrument 1999 No. 3323 (The Transnational Information and Consultation of Employees Regulations 1999), as amended by Statutory Instrument 2010 No. 1088 (The Transnational Information and Consultation of Employees (Amendment) Regulations 2010). This Agreement shall be governed by and interpreted in accordance with the laws of the United Kingdom.

Clause IX.3 – Amending the Agreement

The provisions of this Agreement may be amended at any time, without affecting the whole of this Agreement or its validity, by Management together with an absolute majority of the Employee Representatives.

Clause IX.5 – Dispute resolution and UK courts

The Adecco Group and the AEWC shall seek to resolve disputes in good faith and in the spirit of cooperation. Subject to the above-mentioned Clauses, if there is a material dispute about the meaning or operation of this Agreement, the following dispute procedure will apply:

Stage 1: There will be a discussion between the Steering Group and three Members of Management in an attempt to resolve the dispute. This stage shall not take longer than 90 days from the date when one Party notifies the other that it wishes to invoke this procedure (the AEWC Employee Representatives shall act by a majority) and providing a written explanation of the basis of the dispute including reference to the relevant provision of this Agreement which it is alleged has been breached.

Stage 2: If the dispute is not resolved at stage 1, both Parties will consider in good faith seeking to resolve the matter through mediation by a mutually agreed mediator. In the event that the parties cannot agree a mediator within a period of 60 days from the receipt of the written notification from the party invoking stage 2, the mediator will be appointed by the Chairman of the Centre for Effective Dispute Resolution.

Stage 3: If a dispute cannot be solved by mediation within six months, the Parties are free to litigate in court. Any dispute arising out of or in connection with this AEWC Agreement is subject to the exclusive jurisdiction of the UK courts.

3. The Complaint

4) The complaint dated 24 November 2020 submitted to the CAC reads as follows:

This complaint is made pursuant to regulation 21 of the TICE Regulations (Disputes about operation of European Works Council). Specifically, we say that the management of the Adecco Group has not complied with the terms of the EWC Agreement in two respects:

1) by failing to inform and consult the EWC about collective redundancies concerning Adecco Group undertakings in at least two countries within scope of the EWC Agreement. On 26 May 2020 the EWC Steering Group discovered that collective redundancies had already been made or announced in Hungry (13% of the workforce), the Netherlands (43% of the workforce) and Sweden (25% of the workforce), and further redundancies were subsequently announced in Germany in June 2020. Management claimed that these were “national” issues not linked to a decision taken by European or global management and refused to inform and consult the EWC or the Steering Group about them. This occurrence was the latest in a series of similar occurrences including in December 2018 and October/November 2019 when management also refused to inform and consult in relation to collective redundancies taking place in more than one country within scope of the EWC Agreement; and

2) by refusing to inform the EWC Steering Group of the most recent business sales performance data per country within scope of the EWC Agreement. In the last 2 years the EWC Steering Group on behalf of the employee representatives has repeatedly requested this information broken down per country in accordance with the EWC Agreement and with the Rules of Procedure which complete the EWC Agreement, most recently in the context of the annual EWC plenary meeting held on 19 and 20 November 2020. Management has always refused to provide a country-by-country breakdown of the data. In addition, we consider this refusal to be a breach of regulation 18A of the TICE Regulations which requires the central management, or any more appropriate level of management, to give information to members of the EWC with such content as to enable the recipients to undertake a “detailed assessment of its possible impact” and where appropriate prepare for consultation. The EWC considers that a country-by-country breakdown of the data is needed to undertake a detailed assessment as described.

In this decision we refer to the first ground of complaint as the “collective redundancies” complaint and the second ground as the “business sales performance data” complaint.

5) The Complainant said that the AEWC had triggered the Dispute Resolution clause in the Agreement in relation to both elements of this complaint and that the disputes were currently in stage 2, with the parties having agreed to request Acas mediation. The Complainant said that it was concerned that if mediation were to fail, it would be too late to bring a complaint to the CAC at least in relation to the first element of the complaint in view of the six month deadline in regulation 21(1B) of TICER and it was therefore lodging this complaint with the CAC now. The Complainant asked the CAC to suspend its consideration of the complaint while the parties followed the Dispute Resolution procedure in the Agreement. The Complainant said that it hoped that, with the help of Acas, it would be able to reach an acceptable agreement with management over the two disputes and would then be able to withdraw its complaint.

4. Summary of the Employer’s response to the Complaint

6) In its response to the Complaint dated 1 December 2020 the Employer stated that it valued open, positive and constructive dialogue within the AEWC and that it shared the Complainant’s hope that it would be better to resolve the dispute between themselves if at all possible. The Employer said that it did not wish to delay matters so as to frustrate the complaint but that it strongly supported the Complainant’s request for the CAC to suspend consideration of the complaint while the parties continued to engage with each other through the Dispute Resolution procedure. The Employer said that, in view of the parties’ mutual hopes that they could resolve the dispute, it was making only limited comments at this stage on why it denied the complaint. The Employer said that it was also limiting its comments to the period since 24 May 2020 as the Complainant had already identified that older events were too old for the CAC to consider.

7) In relation to the collective redundancies complaint, the Employer said that the Agreement defined matters as transnational “where they concerned or have potential effects at least on two undertakings of the Group situated in two different EEA countries on the Community-scale group of undertakings as a whole”. The Employer said that there had only been separate matters each involving collective redundancies in no more than one EEA country and that this meant that the Employer had not needed to inform and consult the Steering Group or employee representatives of the AEWC in addition to undertaking local information and consultation where legally required. The Employer also said that the Agreement specifically indicated that “staffing levels of the single country and other issues of similar kind will be excluded from discussion under these procedures as they are to be dealt with specifically through local or national information and consultation arrangements”.

8) In relation to the business sales performance data complaint the Employer said that neither the Agreement nor regulation 18A of TICER required it to provide such information, which it considered to be used for national information and consultation and not for European-level information and consultation. The Employer acknowledged that its Rules of Procedure indicated that it “shall inform the Steering Group each year by the 1st of April of the most recent business sales performance and workforce data per country covered by the geographical scope of the … Agreement”. The Employer said that the Rules of Procedure were “non-binding working practices that are not intended to amend the content of” that Agreement and that it was now more than six months since 1 April 2020 in any event. The Employer said that, as such, a breach of the Rules of Procedure could not found a complaint. The Employer said that the inclusion of such specific wording in the Rules of Procedure also suggested that the Agreement should have been drafted to include this wording for it to have the meaning for which the Complainant contended.

5. The stay and the lifting of the stay

9) On 2 December 2020 the Case Manager copied the Employer’s response dated 1 December 2020 to the Complainant and informed both parties that the Panel Chair had granted a stay until 8 January 2021 in the first instance in the hope that this would afford sufficient time for the mediation process to be concluded. The letter informed the parties that if they required more time for the mediation process to be concluded they should inform the Case Manager by 5 January 2021 so the Panel Chair could consider whether a further stay should be granted. The letter stated that a further stay would be considered only pursuant to a written request by both parties which specified the length of stay that was requested. On 5 January 2021 both parties asked the CAC to extend the stay until 31 January 2021 and the Panel Chair agreed to this. On 29 January 2021 the Complainant informed the CAC that the parties had been unable to resolve the disputes that were the subject of the complaint and asked the CAC to resume its consideration of the complaint.

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

10) On 1 February 2021 the Case Manager invited the Complainant to respond in as much detail as possible to the Employer’s letter dated 1 December 2020. The Complainant responded with detailed submissions in a letter to the CAC dated 8 February 2021.

7. The Collective Redundancies Complaint

11) The Complainant said that management had failed to inform and consult the AEWC in an Extraordinary Meeting about collective redundancies significantly affecting Adecco employees in at least two countries within the scope of the Agreement. The Complainant said that on 26 May 2020, the AEWC Steering Group had discovered that collective redundancies had already been made or announced in Hungary (13% of the workforce), the Netherlands (43% of the workforce) and Sweden (25% of the workforce), and further redundancies were subsequently announced in Germany in June 2020. The Complainant said that, like many companies at this time, Adecco was making or planning the redundancies in response to a downturn in business caused by the Covid 19 crisis. The Complainant said that the Steering Group had written to Central Management on 26 May 2020 referring to the redundancies in Hungary, the Netherlands and Sweden and requesting an Extraordinary Meeting in accordance with Clause V.1.4 of the Agreement. The Steering Group had requested the attendance at the Meeting of the AEWC members “representing the Countries most affected by the exceptional circumstances”. The Complainant attached a copy of this letter.

12) The Complainant said that on 10 June 2020 there had been a plenary meeting, held by video-conference, at which the Employee Representatives had asked management to open discussion on mass redundancies as a result of the Covid-19 crisis. The Complainant said that management had replied that they had not said from Zurich that a country must make redundancies, but that each country had a budget and was responsible for taking decisions on staffing levels. The Complainant said that on 24 June 2020 the Chief HR Officer for the Adecco Group had replied to the Steering Group’s letter of 26 May 2020 refusing the request for an Extraordinary Meeting on the grounds that decisions to make redundancies were taken locally in all countries and there were therefore “no transnational collective redundancies”. The letter stated that the Adecco Group Headquarters is responsible for developing the Group strategy and for translating, in consultation with the countries, the strategic objective into local operational targets and country budgets for its businesses across the globe. While the overall strategy and objectives are set at the centre, local management must decide how to put the strategy to work and how to best achieve the objectives that have been set. So, within the agreed budget, local management is fully empowered to make decisions on commercial strategy, pricing, client segmentation, business line development, people investment, as well as on managing operating costs. It is clear that in such situations, where operating costs are not or no longer proportionate to sales development, local management is also empowered to make decisions in order to re-balance costs levels. Unfortunately, in some cases, local management may need to consider and implement redundancies. To state it clearly: the Adecco Group Headquarters does not ask countries to cut jobs and it is up to each country to make decisions relating to the composition and volume of its workforce based on a series of parameters.

The letter also stated:

In this context, no decision on individual or collective job losses within the countries covered by the AEWC Agreement is ever taken by European or global management.

The Complainant attached a copy of this letter.

13) The Complainant said that in its response to the complaint, the Employer had made essentially the same argument as to why in its view collective redundancies occurring in two or more countries did not fall within the scope of the Agreement. The Complainant said that the Agreement nowhere states that collective redundancies in two or more countries must be the result of a request by Adecco Group Headquarters to local country management to cut jobs or the result of a “decision … taken by European or global management”. The Complainant referred to the text of Clause V.1.4. The Complainant also referred to the definition of “transnational” issues in Clause II and said that there was no qualification of this definition requiring transnational matters to be the result of a request or decision by Adecco Group Headquarters or by European or global management. The Complainant said that it considered that the obligation to hold an Extraordinary Meeting in the event of collective redundancies which significantly affect employees in each of at least two EEA countries was clear and unambiguous and that management was, in effect, seeking to amend the Agreement unilaterally by inserting an additional condition before collective redundancies fell within its scope.

14) The Complainant said that if the Employer’s argument were correct, then collective redundancies would never fall within the scope of the Agreement. The Complainant said that this could not be right, since Clause V.1.4 explicitly brought collective redundancies within its scope, as did Clause V.1 which lists potential topics for the Annual Plenary Meeting including “major collective redundancies and layoffs of the workforce”. The Complainant said that collective redundancies were one of just three topics on which the AEWC was entitled to be informed and consulted in an Extraordinary Meeting, and it was a topic that understandably was of great concern to the AEWC given that it would directly affect the livelihoods of significant numbers of Adecco employees. The Complainant said that the Agreement explicitly envisaged that information and consultation of the AEWC would take place in addition to local information and consultation, with the two processes running in parallel. The Complainant referred to the third and fourth paragraphs of Clause V.1.4 and to Clause IV.3. The Complainant said that, far from being mutually exclusive, as the Employer was contending, the Agreement envisaged that consultation on collective redundancies would take place at both the local level and at the AEWC level in the event that they occurred in two or more countries. The Complainant said that this was further reinforced by the second paragraph of Clause I of the Agreement which states that the AEWC is “complementary to and distinct from national systems of information, consultation and participation and has its own competences and responsibilities”. The Complainant said that the Employer may be concerned that consultation of the AEWC would simply duplicate consultation of local works councils but that this was not the case; consultation of the AEWC was clearly intended to be distinct from local consultation, and to complement it.

15) The Complainant said that it considered that the wording of the Agreement by itself was sufficient to show that there was an obligation to hold an Exceptional Meeting in the event of collective redundancies in two or more countries and an obligation to inform and consult the AEWC about any “major collective redundancies and layoffs of the workforce” during the Annual Plenary Meeting. The Complainant said that it did not believe that it should have to justify further its request for an Extraordinary Meeting where the conditions for holding a Meeting had been met. The Complainant said that, nevertheless, it believed that there were good reasons why the Agreement required an Extraordinary Meeting in the event of collective redundancies, and why this requirement was included in the Agreement during negotiations. The Complainant said that, firstly, information and consultation with central management on collective redundancies in two or more countries would enable the Steering Group to gain an overview of the process taking place in the different countries. The Complainant said that the Steering Group could engage in dialogue with central management, for example, over any differences in approach taken in different countries to supporting employees under threat of redundancy or to seeking alternatives to redundancy. The Complainant said that, secondly, information and consultation with central management on collective redundancies in two or more countries would enable the AEWC Steering Group to understand the rationale, including the financial rationale, for those redundancies, and to engage in dialogue with central management over that rationale. The Complainant said that the Chief HR Officer’s letter, quoted in paragraph 12 above, had explained that Adecco Group Headquarters developed the Group strategy; translated that into “local operational targets and country budgets”; and that this ultimately drove decisions by local management, including decisions on collective redundancies. The Complainant said that this was consistent with Article II of the Agreement which refers to transnational matters having “potential effects” at least on two Group undertakings in two different EEA countries. The Complainant said that it believed that AEWC members could bring valuable knowledge and experience gained from working for the Adecco Group, in some cases for many years, to the dialogue with central management that is envisaged by the Agreement. The Complainant said that it wished to do this in a constructive way and to contribute to the shared objectives of helping the Adecco Group as a whole to develop its business while adapting to market requirements, so that Adecco Group‘s employees are involved in this process.

16) The Complainant noted that in its response to the complaint the Employer had argued that the Agreement specifically indicates “staffing levels of the single country and other issues of similar kind will be excluded from discussion under these procedures as they are to be dealt with specifically through local or national information and consultation arrangements”. The Complainant said that the phrase “staffing levels” could not refer to collective redundancies in two or more countries because they are clearly and explicitly included within the scope of the Agreement by Clause V.1 (The Annual Plenary Meeting) and Clause V.1.4 (Extraordinary Meetings). The Complainant said that it considered that the term “staffing levels” refers to day-to-day decisions on, for example, recruitment and individual dismissals.

8. The business sales performance data complaint

17) The Complainant said that management had refused to provide to the European Employee Representatives data about sales performance broken down by country. The Complainant said that in the last two years the Steering Group on behalf of the employee representatives had repeatedly requested this information in accordance with the Agreement and the Rules of Procedure which complete the Agreement, most recently following a meeting with management held on 10 June 2020 and in advance of a meeting with management held on 19 November 2020. The Complainant attached copies of these requests. The Complainant said that management had always refused to provide a country-by-country breakdown of the data; it had not responded to the request made following the 10 June 2020 meeting, and refused at the 19 November 2020 meeting to provide it.

18) The Complainant said that the Steering Group believed that central management was required to provide this information by the Agreement, by the Rules of Procedure and by regulation 18A of TICER. The Complainant referred to Clause IV.1 of the Agreement, which sets out the information to be provided to the EWC, emphasising that the definition of information includes “all elements required for the employee representatives to understand the data in order to develop a reasoned opinion” and that the “content of the information, the time when, and the manner in which it is given, must be such as to reasonably enable the Employee Representatives within the AEWC to … undertake a detailed assessment of its possible impact”. The Complainant also referred to the fourth paragraph of Clause V.1 of the Agreement which provides that the Agenda “will include information and dialogue on transnational matters, relating to the Adecco Group within the geographical scope of this Agreement, in particular concerning the … economic and financial situation … [and] sales”. The Complainant said that the Chief HR Officer’s letter quoted in paragraph 12 above had explained that Adecco Group Headquarters developed the Group strategy and translated that into “local operational targets and country budgets” and that this ultimately drove decisions by local management. The Complainant referred to the following sentences in the letter:

It is clear that in such situations, where operating costs are not or no longer proportionate to sales development, local management is also empowered to make decisions in order to re-balance costs levels. Unfortunately, in some cases, local management may need to consider and implement redundancies.

The Complainant said that the Steering Group therefore needed information on business sales performance per country in order to understand the rationale for decisions that may subsequently be taken by local management as a result of central management’s Group strategy, local operational targets and country budgets, about issues that were within scope of the Agreement. As an example, the Complainant said that the Steering Group needed to see information about revenue, costs and profitability by country in order to understand why management in a country may decide to take cost-cutting measures such as collective redundancies or substantial organisational changes. The Complainant said that the complaint regarding financial information was therefore closely linked to the collective redundancies complaint.

19) The Complainant said that it considered that information on business sales performance per country was very much part of the “all elements required for the employee representatives to understand the data in order to develop a reasoned opinion” referred to in Clause IV.1 of the Agreement; unless the Steering Group understood the financial rationale for collective redundancies or other measures taken by management, it simply could not give an informed opinion on them. The Complainant said that it considered that business sales performance per country was also squarely within the definition in Clause IV.1 of the information that must be provided to enable it to undertake a “detailed assessment” of management proposals on issues within scope of the Agreement. The Complainant said that a “detailed assessment” required detailed information, and the AEWC simply could not conduct such an assessment of, for example, collective redundancies or other cost-cutting measures that may significantly affect employees, without business sales performance per country. The Complainant said that it was clear from Clause V.1 of the Agreement that the information that must be provided to the AEWC for the Annual Plenary Meeting includes “economic and financial” information as well as information on “sales”.

20) The Complainant said that the Agreement provided that “This Agreement shall be completed by the AEWC Rules of Procedure” (emphasis added); it also referred to Clause VIII of the Agreement. The Complainant attached a copy of the Rules of Procedure dated 18 September 2018 (“the Rules”) and quoted the following provisions:

Introduction – The purpose of defining Rules of Procedure

This is the outcome of discussions held between Steering Group Members and Management Representatives, as part of the Agreement improvement process (2016-2018) (emphasis added).

The purpose of this document is to complete The Adecco Group European Works Councils Agreement (see page 3 of the preamble) in order to ensure its smooth and effective operations for the benefit of a fluid and transparent information and consultation process (emphasis added).

The Rules of Procedure are non-binding working practices that are not intended to amend the content of Adecco Group European Works Council agreement signed on 24 May 2018.

Information on Business Performance and Workforce Data

The AEWC Co-Ordinator shall inform the Steering Group each year by the 1st of April of the most recent business sales performance and workforce data per country covered by the geographical scope of the AEWC Agreement. (Page 5, emphasis added)

Amending the Rules of Procedure

These Rules of Procedure can be modified by two-thirds majority of the Steering Group members and Management Representatives. (Page 8).

The Complainant said that both the Agreement and the Rules were clear that the Rules were intended to “complete” the Agreement and that, according to the Rules, they constituted an “improvement” of the Agreement. The Complainant said that it considered that this meant that they were intended to help explain and interpret the obligations in the Agreement. The Complainant said that the obligation on the AEWC Co-Ordinator to provide the most recent business sales performance and workforce data per country was intended to explain and interpret the obligations in Clauses IV.1 and V.1 of the Agreement, in particular “information … concerning the … economic and financial situation, the probable development of the business, and of service provision, sales, the situation of employment…” so that the AEWC can undertake “a detailed assessment of its possible impact”.

21) The Complainant said that the Rules stated very clearly that the AEWC Co-Ordinator “shall inform the Steering Group each year” of business sales performance data per country. The Complainant said that the Rules had been signed by the previous Management Chairperson, acting as Chief HR Officer, and by the previous AEWC Co-Ordinator on behalf of the Management Representatives and that the current management was now seeking to renege on that obligation and in effect trying to modify the Rules to delete the provision they apparently did not like although the Rules were clear that they can only be modified “by two thirds majority of the Steering Group members and Management Representatives”. The Complainant said that the Steering Group members had not assented to this modification and considered that the principle of pacta sunt servanda (“agreements must be kept”) meant that management should honour the Rules in good faith. The Complainant said that it was not claiming that the Rules amended the content of the Agreement, but rather, as both they and the Agreement say, “complete[d]” the Agreement. The Complainant said that it would be perverse if wording in the Rules intended to “complete” or “improve” the Agreement were to have the opposite effect of what they actually said, by supporting an assertion that management is not required by the Agreement to provide this information. The Complainant said that in its view provisions in the Rules were not binding if they contradicted the Agreement and referred to Clause VIII in this regard but submitted that the obligation in the Rules to provide financial information by country was entirely consistent with the requirements in the Agreement.

22) The Complainant said that Regulation 18A of TICER requires the central management, or any more appropriate level of management, to give information to members of a European Works Council in accordance with paragraph (3) of that regulation. Paragraph (3) reads as follows:

The content of the information, the time when, and manner in which it is given, must be such as to enable the recipients to—

(a) acquaint themselves with and examine its subject matter;

(b) undertake a detailed assessment of its possible impact; and

(c) where appropriate, prepare for consultation. (emphasis added)

The Complainant submitted that management’s refusal to provide business sales performance data per country was a breach of regulation 18A, for the same reasons as those summarised in paragraphs 18 and 19 above: such information was necessary for the Complainant to carry out a detailed assessment of management proposals on, for example, collective redundancies or other cost-cutting measures that may significantly affect employees.

23) In response to the Employer’s contention that it was now more than six months since 1 April 2020 and that the complaint on this point was out of time the Complainant said that the Steering Group had requested this information on 11 June 2020 and again on 10 November 2020 and that it was management’s failure to accept those requests, and refusal at the meeting on 19 November 2020 to provide the information requested, that was the subject of this element of the complaint. The Complainant also responded to the contention by the Employer that the inclusion of such specific wording in the Rules relating to business sales performance data suggested that the Agreement should have been drafted to include this wording for it to have the meaning for which the AEWC Steering Group contended The Complainant said that this could not be correct because the Rules specifically state that they are not intended to amend the content of the Agreement and that the Agreement could not therefore mean that management was not required to provide financial information by country, because if that were the case the Rules would amend the Agreement giving it the opposite meaning to that claimed by the Employer. The Complainant said that the Rules helped to explain or interpret the Agreement and, by requiring financial information by country, they were entirely consistent with what the Agreement required.

24) The Complainant said that, in the past, management had argued that financial information by country was commercially sensitive or subject to stock exchange rules. The Complainant said that if the Employer made this point in its further submissions the Complainant would welcome the opportunity to respond to anything the Employer may seek to argue on this point, given that the question of confidentiality was specifically addressed in both the Agreement and in TICER

9. Summary of the Employer’s further submissions

25) In a letter dated 10 February 2021 the Case Manager invited the Employer to respond in as much detail as possible to the Complainant’s letter of 8 February 2021. The Employer responded with detailed submissions in a letter to the CAC dated 19 February 2021.

10. The Collective Redundancies Complaint

26) The Employer said that the world had faced an unprecedented emergency in early 2020. As the High Court had noted in Melanie Stanley v London Borough of Tower Hamlets ^{[footnote 1]}.

The coronavirus pandemic is generally recognised to be the greatest peacetime emergency that this country (and indeed the world) has ever faced. It has already caused the biggest shrinkage in the UK’s economy on record, and its effects are likely to be felt for generations to come. That is on top of the deaths of over 42,000 people in the UK from the virus (as of 18 June 2020). The history of this crisis has yet to be written, but its effects have been all too palpable for every woman, child and man in the UK, and in many other countries too.

The Employer said that the Complainant’s allegations on 26 May 2020 that the redundancies that had been announced in the spring of 2020 in Hungary, the Netherlands and Sweden by members of the Adecco Group were a response to the emergency caused by coronavirus was incorrect. The Employer said that there were no collective redundancies in Hungary and that the collective redundancies that were proposed in the Netherlands and Sweden, and those that were later proposed in Germany, were not proposed as a consequence of the Covid 19 crisis.

27) The Employer said that there were no collective redundancies in Hungary. The Employer said that it had noted on 24 June 2020:

Upon analysing the situation, country management concluded together with business managers to revert to government subsidies, which regrettably still could not offset having to let colleagues go, leading to 9 departures in recent weeks. As it was not considered a collective redundancy in Hungarian law, country management did not formally inform the trade union in Hungary… To further underline, with regards to Hungary, we investigated your claim and concluded that the Hungarian Labour Code was not violated. For our Hungarian business, local management has the obligation to inform a trade union in case of a collective redundancy off [sic] at least 30 employees. As said, this threshold was by far not in scope. A letter with this information was sent by the Adecco Group Hungarian Management to the Hungarian Trade Unions detailing this.

The Employer attached a copy of this document together with a witness statement from the individual responsible for Hungary in 2020. The Employer said that this witness statement further evidenced that the dismissals (a) were made because of the loss of a major client in Hungary representing 40% of the Adecco Group’s Hungarian business’s revenue; (b) did not amount to “collective redundancies”; (c) were voluntarily announced to a representative of the relevant Hungarian trade union and the Hungarian member of the AEWC, on 6 May 2020; and (d) had all been made by no later than 11 May 2020.

28) The Employer said that it had noted on 24 June 2020 in relation to the collective redundancies that were proposed in the Netherlands:

On establishing a causal link between the loss of colleagues in the Netherlands and Sweden due to COVID-19 as a transnational, we inform you that in both countries’ (sic) decisions were taken due to country specific developments before the crisis hit in mid-March.

The Employer said that changes in Dutch law took effect on 1 January 2020 that made it more attractive for companies to hire directly than to use temp agencies and that this had led to a drop in business. The Employer attached a witness statement from the Global Head of HR for Professional Recruitment who was HR Director of the Netherlands from June 2019 to January 2021. The Employer said that this witness statement further evidenced that (a) the dismissals were announced to the members of the Dutch national works council, including the Dutch member of the AEWC, as required by local law on 19 February 2020; (b) consultation on the collective dismissals concluded on 24 February 2020; (c) three dismissals were made in early March 2020; and (d) the onset of the pandemic led the Dutch Government to introduce a wage replacement subsidy scheme under which dismissals were prohibited. The Employer said that this scheme meant that, instead of any dismissals being proposed “as a consequence of the Covid 19 crisis” as alleged by the Complainant, the dismissals that had already been agreed with the Dutch national works council were cancelled. This was because the Adecco Group’s Dutch business’s application in March 2020 to participate in the scheme was approved on 24 April 2020 and it was a condition of participating in the scheme at that time that a business may not dismiss any employees.

29) The Employer said that it had noted on 24 June 2020 in relation to the collective redundancies that were proposed in Sweden:

On establishing a causal link between the loss of colleagues in the Netherlands and Sweden due to COVID-19 as a transnational, we inform you that in both countries’ (sic) decisions were taken due to country specific developments before the crisis hit in mid-March.

The Employer said that the Swedish economy had suffered a significant economic downturn in 2019 which led the Adecco Group’s Swedish business to suffer negative earnings before interest, taxes, and amortization (EBITA) in the final quarter of 2019 and that demand had also continued to fall in January and February 2020. The Employer attached a witness statement from the Chief Executive Officer of Adecco Group Sweden. The Employer said that this witness statement further evidenced that (a) the dismissals in Sweden were due to the Swedish national recession; (b) this had led Swedish management to make a final decision on 65 redundancies between 1 January 2020 and 30 June 2020; (c) the largest number of dismissals of more than one employee on which Swedish management consulted its trade unions took place in December 2019 and January 2020; and (d) the final decision on those collective consultation processes for the overwhelming majority of employees had taken place by 1 June 2020.

30) The Employer said that the AEWC had raised an additional issue concerning redundancies in Germany on 29 June 2020. The Employer said that it accepted that the Adecco Group’s German business commenced a collective redundancy consultation on 3 June 2020 with the works council of Adecco Personaldienstleistungen GmbH. but said that the collective redundancies were not proposed “as a consequence of the Covid19 crisis”. The Employer said that on 1 April 2017, the Arbeitnehmerüberlassungsgesetz, known in English as the Temporary Employment Act, had come into force and that this had changed Germany’s legal framework on the hiring of temporary workers by agencies for their business clients, in particular by limiting the time for which a business may use a temporary worker. The Employer said that in late 2019 and early 2020, the German automotive and aviation sectors, which were key to the Adecco Group’s German business, suffered economic declines and faced increasingly poor economic prospects. The Employer attached a witness statement from the former Chief HR Officer of the Adecco Group Germany. This witness statement said that on 29 May 2020 national management had decided that it needed to formulate proposals for redundancies and on 3 June 2020 national management announced a collective redundancy consultation process in accordance with local law. The Employer pointed to the fact that (a) the potential dismissals announced on 3 June 2020 formed part of ongoing restructurings of the German business that commenced in 2018 and would conclude in 2022; and (b) the reasons for these restructurings included the Adecco Group’s German business’s cost structure changing as a result of the Temporary Employment Act; the increasing crises in the automotive and aviation sectors; and the Adecco Group’s German business’s longstanding problem of an inefficient and cost intensive supply structure.

31) The Employer contended that the CAC had no jurisdiction to consider events in Hungary and the Netherlands when determining this complaint as they were out of time and, in any event, the dismissals in Hungary were not “collective redundancies”. The Employer referred to regulation 21 of TICER as it stood on 24 November 2020 (the date of the complaint). It provided as follows on that date insofar as is material:

(1) Where –

(a) a European Works Council … has been established under regulation 17 …

a complaint may be presented to the CAC by a relevant applicant where paragraph (1A) applies.

(1A) This paragraph applies where a relevant applicant considers that, because of the failure of a defaulter,

(a) the terms of the agreement under regulation 17 …have not been complied with …

(1B) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure or non-compliance (emphasis added).

The Employer said that Parliament had accordingly limited the jurisdiction of the CAC to the Employer’s alleged failures or non-compliance with the Agreement’s terms on or after 24 May 2020 and that the CAC accordingly had no jurisdiction to consider events in Hungary as part of this complaint. The Employer said that the dismissals were not “collective redundancies” and were not announced “as required by local laws” and so fell outside Clause V.1.4 of the Agreement; the Adecco Group’s Hungarian business’s voluntary announcement to a representative of the relevant Hungarian trade union took place on 6 May 2020 and 13 May 2020 (the date five working days after 6 May 2020) predated 24 May 2020; and the dismissals had all been made by 11 May 2020. The Employer said that, as such and with effect from that date, the dismissals ceased to be a potential matter for consultation or in respect of which any order could have been made by the CAC requiring consultation having regard to:

(a) the Court of Justice of the European Union indicating in Irmtraud Junk v Wolfgang Kühnel and in the context of collective redundancies that:

The case in which the employer ‘is contemplating’ collective redundancies and has drawn up a ‘project’ to that end corresponds to a situation in which no decision has yet been taken. By contrast, the notification to a worker that his or her contract of employment has been terminated is the expression of a decision to sever the employment relationship, and the actual cessation of that relationship on the expiry of the period of notice is no more than the effect of that decision; ^{[footnote 2]}

and

(b) regulation 21(9) of TICER providing on 24 November 2020 that:

No order of the CAC under this regulation shall have the effect of suspending or altering the effect of any act done or of any agreement made by the central management or the local management .

32) The Employer also submitted that the CAC had no jurisdiction to consider events in the Netherlands as part of this complaint. The Employer said that the Adecco Group’s Dutch business’s announcement to the Dutch national works council as required by local law took place on 19 February 2020 and that 26 February 2020 predated 24 May 2020; the three dismissals that were ultimately made had all been made by mid-March 2020; and from 24 April 2020, and therefore from a date predating 24 May 2020, the Adecco Group’s Dutch business had been participating in and abiding by the conditions of a Dutch Government scheme that prohibited dismissals at the time that the Complainant alleged that they were being proposed.

33) The Employer contended that the circumstances that had existed in Hungary or the Netherlands before 24 May 2020 could not properly be said to have been ongoing or formed part of any kind of “continuing act” with events on or after 24 May 2020. The Employer said that no limitation period began to run on 26 May 2020 when the Complainant made its request or on 24 June 2020 when the Employer refused to consent to it because, unlike paragraph 8 of the Schedule to TICER, the Agreement provides no right for the AEWC ever to request an Extraordinary Meeting. ^{[footnote 3]} The Employer said that Clause V.1.4 of the Agreement confirmed that the parties to the Agreement had chosen not to adopt the default concept under TICER of the obligation on management to convene a meeting arising upon the making of a request by the AEWC. The Employer said that Clause V.1.4 of the Agreement (a) prescribes a precise and tailored timeframe for the convening of an Extraordinary Meeting by reference to the occurrence of a particular event, namely announcements required by local law; and (b) does not refer to a concept of the AEWC making a request, in contrast to Clauses V.1.1 and VI.3 of the Agreement, which refer to the AEWC being entitled to make requests to the Employer in respect of translations and access to Adecco Group sites. The Employer said that the Complainant’s letter of 26 May 2020 did not give rise to a legal obligation on the Employer but could only properly be categorised as a letter before action in respect of the Employer’s earlier alleged failure to convene an Extraordinary Meeting. The Employer emphasised that it was proper for the CAC to respect limitation periods however unattractive it might be for the Employer to rely on them ^{[footnote 4]} and that it had no discretion to extend the time limit under regulation 21. The Employer also said that the consequences for the AEWC of not being entitled to pursue this complaint did not amount to an injustice. The Employer said that the AEWC:

(a) as a body was on actual notice of the announcements on 19 February 2020 in the Netherlands and on 6 May 2020 in Hungary because those announcements were made to its members, as evidenced in the attached witness statements;

(b) was aware of its alleged cause of action as early as 26 May 2020 and initiated dispute resolution proceedings under the Agreement in respect of it as early as 29 June 2020;

(c) was receiving expert assistance from its chosen expert, Fabio Ghelfi, before the limitation period would have expired even if time to bring a complaint had started running five working days after the announcement in either the Netherlands or Hungary;

(d) began to receive paid expert assistance from its current chosen advisor, Philip Sack, on 2 November 2020 but waited a further 22 days before filing its complaint. In particular, and although ultimately immaterial as there were no collective redundancies announced in Hungary, this allowed the date of 13 November 2020 to pass before the AEWC made its complaint despite the AEWC having been on notice that that was the date six months after the fifth working day after Hungarian management had voluntarily notified a representative of the local trade union of non-collective redundancies on 6 May 2020;

(e) had demonstrated when filing its Complaint that it appreciated the significance of regulation 21(1B) of TICER;

(f) has demonstrated when making both the Complaint and its later unsuccessful complaint in Adecco Group EWC & Adecco Group (2) ^{[footnote 5]} that it was willing to complain to the CAC in breach of the Agreement by not first exhausting its dispute resolution process when it considered that course of action to be in its interests; and

(g) even if the AEWC was ever negligently advised on the effect of regulation 21(1B) of TICER, that was irrelevant to this complaint as the CAC enjoys no discretion to extend time but the AEWC would have causes of action in the law of tort for negligence.

34) The Employer said that insofar as the CAC had jurisdiction to consider the collective redundancies complaint, the Agreement indicated that it was the parties’ intention that an obligation on the Employer only arose if a “transnational issue” in the singular existed that satisfied one of three criteria in Clause V.1.4. The Employer said that this was because the only other reference to the concept was at the end of clause V.1.4 of the Agreement as follows:

Extraordinary Meetings may take place if time and logistics allow in person, otherwise preferably by telephone or videoconference depending on the transnational issue under consideration, as recommended by the Steering Group and organised by the AEWC Co-ordinator (emphasis added).

The Employer said that the rationale for collective redundancies in Sweden was the poor state of the Swedish economy and in Germany included the coming into force of the Temporary Employment Act, an increasing crisis in certain sectors of the German economy and the Adecco Group’s German business’s inefficient and cost-intensive supply structure. The Employer said that the witnesses statements referred to in paragraphs 29 and 30 above evidenced that the decision to propose collective redundancies in Sweden was made by the Adecco Group’s Swedish business’s management team in Sweden; and that the decision to propose collective redundancies in Germany was made by the Adecco Group’s German business’s management team in Germany.

35) The Employer said that the Adecco Group’s template job description for a country manager evidenced that individuals holding that role were competent to decide on the making of collective redundancies within their country. In particular, it states that the role’s responsibilities include to:

• Take the overall responsibility of the Group in the Country maximising the coordination and collaboration across businesses and functions…

• Build, lead and retain talent by driving high performance teams, supporting employees professional development and managing succession pipeline for key positions…

• Ensure an engaged and performing workforce…

• Implement globally defined operating models and practices, which may include organizational structure, sales protocols, projects, legal & compliance, financial, HR, digital and technology initiatives that are developed by Adecco Group…

• Ensure resource planning to achieve budgets, implementation of the optimum operating model and to realize investment opportunities.

The Employer said that the assignment brief for the Swedish country manager who was hired on 1 January 2020 was an example in the English language of the responsibilities set out in the template being adopted in practice by the Adecco Group for such a role. The Employer also referred to a witness statement from the Global Head of Finance, Adecco. The Employer said that this witness statement further evidenced how financial matters were managed within the Adecco Group. The Employer said that this witness statement confirmed that:

(a) the ambitions for each country in which the Adecco Group operates are set by reference to the current and expected conditions for each individual country, such as the state of its economy, GDP growth, inflation rate, unemployment levels and regulatory developments;

(b) the budgets for each country are set on a country-by-country basis;

(c) country management teams enjoy freedom to determine their own actions, measures and means to meet their budget; and

(d) Adecco CH does not require country management teams to cut jobs as it is up to each local country management team to make decisions relating to the composition and volume of its workforce.

The Employer said that as such, the entirely separate collective redundancies announced in Sweden and Germany, and which were driven by particular national circumstances, could not properly be held to have constituted a single “transnational issue”. The Employer said that it would adopt these arguments in relation to Hungary and the Netherlands were the CAC to determine that it may properly examine events in those countries.

36) The Employer submitted that the Agreement additionally expressly confirmed that the formulation of proposals in and for different countries did not give rise to an obligation under clause V.1.4 of the Agreement. The Employer referred to the definition of “transnational” in Clause II and emphasised that Clause II.1 states that:

Issues which relate to one or more undertakings in one or more participating countries and which relate inter alia to day-to-day management, remuneration, compensation, benefits, rights, terms and conditions of employment, staffing levels of the single country and other issues of similar kind will be excluded from discussion under these procedures as they are to be dealt with specifically through local or national information and consultation arrangements (emphasis added).

37) The Employer requested, having regard to regulation 21(6) of TICER, that if the CAC were to determine this complaint to be well-founded, the CAC should record as findings of fact in its decision that the Employer (a) as a matter of good labour relations, responded to the AEWC’s letter of 26 May 2020 in significant detail on 24 June 2020 to explain its position; and (b) met with the AEWC, including representatives of Germany, Hungary, the Netherlands and Sweden, and its chosen expert, Fabio Ghelfi, on 29 June 2020 to discuss its letter of 26 May 2020 and the German collective redundancies announced in June 2020. The Employer did not suggest that this meeting fully discharged its obligations under clause V.1.4 of the Agreement if such a meeting had been required but said that the meeting was recognised by the Complainant as having taken place; and said that a witness statement by the HR Communications and Project Lead and Co-ordinator for Management in the AEWC which the Employer attached evidenced the content of that meeting and the events leading up to and following it.

38) The Employer said that it accepted that the Agreement does not prescribe that collective redundancies in two or more countries must be the result of a request by Adecco Group Headquarters. The Employer said that its position was that the CAC should determine this complaint by reference to clause V.1.4 of the Agreement and the Agreement as a whole in accordance with usual rules of contractual interpretation. The Employer said that the Complainant had overlooked the fact that the three criteria specified in clause V.1.4 are only relevant if there is a single transnational issue. The Employer said that, insofar as the Complainant might suggest that coronavirus is such an issue:

(a) the coronavirus pandemic, as a global health emergency, was not a proposal of the Adecco Group any more than Brexit, as a geopolitical event, was a proposal of Verizon when that issue was examined in Verizon EWC & The Central Management of Verizon Group (2) ^{[footnote 6]}. The Employer said that a nexus must exist between general global events and the Adecco Group before the Employer could be under an obligation to convene an Extraordinary Meeting;

(b) the evidence before the CAC confirmed that the rationale for the redundancies in respect of which the Complainant had complained was not coronavirus and, as such, that no such nexus existed; and

(c) the decisions in light of its economic implications were not made in a coordinated manner across countries but separately by the local management of each member of the Adecco Group.

39) The Employer said that Adecco Ireland Limited (“Adecco Ire), the representative agent of Adecco CH since 11pm (UK time) on 31 December 2020, had recently indicated that it would ask all country management teams to share additional information with the Complainant. The Employer said that Adecco Ire had done this as it was keen to resolve the Complainant’s fundamental misunderstanding of how the Adecco Group operates and any concerns that it has about events in particular countries.

40) The Employer said that the Complainant’s suggestion that, if the Employer’s argument were correct, collective redundancies would never fall within the scope of the Agreement was “hyperbolic”. The Employer exhibited proposals affecting employees in two in more countries in June 2020 formulated by BP’s and Chevron’s global headquarters and submitted that if Adecco CH had formulated proposals similar to those then the Employer would have been obliged to convene an Extraordinary Meeting. The Employer said that it did not breach the Agreement “as the proposals for collective redundancies were separately formulated in different countries in light of unrelated national circumstances”. The Employer said that it was not merely a theoretical possibility that the Employer would ever have been required to convene an Extraordinary Meeting in the light of how the Adecco Group operates. For example, if a major client of the Adecco Group were to terminate a single contract for the Adecco Group’s services across a number of countries then that could very well lead to circumstances triggering an Extraordinary Meeting in light of collective redundancies being announced by local managements in two countries directly as a result of one single “transnational issue”, namely the termination of the contract.

41) The Employer said that the reasons for an Extraordinary Meeting set out by the Complainant, summarised in paragraph 15 above demonstrated the Complainant’s fundamental misunderstanding of the rationale for the collective redundancies in Sweden and Germany. For example, the Complainant had referred to wanting to “understand the rationale, including the financial rationale, for those redundancies” (emphasis of the singular added) but the Employer said that there was no such single rationale for these unrelated proposals as the evidence before the CAC confirmed. The Employer said that the Complainant may have much to offer to help achieve shared objectives and wish to act in a constructive way but that it would be more constructive for the Complainant to seek an expanded remit by proposing that amendments to the Agreement be made in accordance with clause IX.3 rather than asking the CAC to, in effect, rewrite clause V.1.4. The Employer also reiterated that Adecco CH’s involvement in the setting of each country’s budget takes place on a country-by-country basis in light of current and expected conditions in each country; it was not involved with country management teams making decisions on collective redundancies in any single country, never mind it being responsible for a single “transnational issue” having the potential effect of collective redundancies being implemented by two country management teams. The Employer said that the Adecco Group did not operate in the same way as many other corporate groups, such as BP and Chevron.

42) The Employer said that the Complainant had suggested that staffing levels in Clause II.1 of the Agreement could not refer to collective redundancies in two or more countries. The Employer said that staffing levels in Sweden were an entirely separate matter from staffing levels in Germany and accordingly, neither led to the formulation of proposed “collective redundancies in two or more countries”.

11. The business sales performance complaint

43) The Employer submitted that the Complainant could not properly complain to the CAC in respect of any alleged breach (a) of the Rules; (b) in respect of a failure to provide information by 1 April 2020; or (c) in respect of a failure to provide information in advance of the virtual meeting on 10 June 2020.

44) The Employer said that the Complainant had alleged that the Employer had breached the Rules notwithstanding that, as the Complainant had recognised, the Rules state that they are “ non-binding working practices that are not intended to amend the content of” the Agreement signed on 24 May 2018. The Employer said that judges of the Supreme Court had ruled unanimously in RTS Flexible Systems Limited v Molkerei Alois Müller Gmbh & Company KG (UK Production)

The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations ^{[footnote 7]}.

The Employer said that a breach of the Rules, accordingly, could not found a complaint against the Employer. The Employer said that it did not follow from this that the Rules were unimportant as a matter of labour relations but they must nevertheless be given no legal weight in the same way as the CAC gave none to a Code of Practice in Mr Haines & The British Council. ^{[footnote 8]} The Employer said that the Complainant had suggested that references in the Agreement and the Rules to the Rules serving to “complete” the Agreement meant that the Rules create legally binding relations notwithstanding its unambiguous wording to the contrary. The Employer said that:

(a) the Agreement was entered into on 24 May 2018 and so could not rebut later expressly indicated intentions;

(b) the Rules were indicated as being signed “on behalf of the Steering Group of the Employees Representatives”. If the Agreement had not been legally effective without the Rules then individuals could not lawfully have held office as such a Steering Group on 18 September 2018 to the effect that their signing of the Rules could not have had legal effects as contended for by the Complainant; and

(c) the unambiguous and detailed wording in the Rules that they were “non-binding” is the most particular wording in them on their status. Accordingly, it should prevail over any other wording in accordance with the passage in the Court of Appeal’s decision in Golden Fleece Maritime Inc, Pontian Shipping SA v St Shipping and Transport Inc. that

the “particular should prevail over the general” if that is an acceptable translation of well known legal principle, “Generalia non specialibus derogant”. ^{[footnote 9]}

The Employer said that it accepted that an obligation on it under the Rules to provide business sales performance data by country would be consistent with the Agreement but that the Rules were not legally binding and they demonstrated that, if the parties had wanted to create a legal obligation on the Employer to provide such information, the parties were capable of drafting such wording. The Employer said that, as such, the CAC should respect the parties’ choice not to include it in a document that was legally binding and only to include it in a document that was not.

45) The Employer said that regulation 21(1A)(a) of TICER provided that the Complainant could complain to the CAC only if, because of a failure by the Employer, “the terms of the agreement under regulation 17 or, as the case may be, the provisions of the Schedule, have not been complied with”. The Employer said that the Complainant had recognised that the Rules did not amend the Agreement and had also recognised that the Rules were a distinct document from the Agreement as they otherwise could never have conflicted with each other. The Employer said that, accordingly, even if the Rules were legally binding, they were still not an “agreement under regulation 17” and the CAC would have no jurisdiction to hear a complaint about an alleged breach of them. The Employer said that the Complainant would instead need to complain to the civil courts in the same way as certain breaches of contracts of employment can only be heard by civil courts and not by an Employment Tribunal that also has limits imposed on its jurisdiction by Parliament.

46) In relation to limitation periods the Employer said that, given that the complaint to the CAC was made on 24 November 2020, regulation 21(1B) of TICER meant that the CAC’s jurisdiction was limited to the Employer’s alleged failures or non-compliance on or after 24 May 2020 and its alleged failure to provide information by 1 April 2020 was therefore not one over which the CAC had jurisdiction. The Employer said that this meant that the CAC may only consider the underlying substance of the business performance sales complaint in respect of the Annual Plenary Meeting that took place in November 2020. The Employer denied that it had breached its obligations by failing to provide business sales performance data by country in advance of the virtual meeting between the Complainant and the Employer on 10 June 2020.

The Employer said that the Complainant had recognised on 11 June 2020 that the virtual meeting that had taken place on the 10 June 2020 was not the Annual Plenary Meeting for 2020 when it wrote:

Next Plenary Meeting: according to the agreement, we must organize the “Annual Plenary Meeting” before the end of the year. It would be good to have in September before a potential second wave of Covid could arrive, the suggested venue is a country/area in the south of Europe where there is currently less incidents/cases of the illness per population

The Employer said that the virtual meeting between the Complainant and the Employer on 10 June 2020 was therefore not an Annual Plenary Meeting under clause V.1 of the Agreement, nor was it a Steering Group Annual Meeting under clause V.1.3 or an Extraordinary Meeting under clause V.1.4. It was instead one that the Employer had held voluntarily as a matter of good labour relations against the backdrop of an unprecedented global emergency. The Employer said that, as a matter of law, the CAC could not hold a complaint against the Employer to be well-founded when the Employer was under no legal obligation to provide any information.

47) The Employer said that the CAC could properly consider the Employer’s compliance with regulation 18A of TICER (set out in paragraph 22 above) in connection with the Annual Plenary Meeting held in November 2020. The Employer said that Clause IV.1 of the Agreement almost exactly replicated regulation 18A of TICER and that, as such, the Employer’s compliance with the Agreement for the reasons set out below meant that it also complied with its obligations under regulation 18A of TICER. The Employer said that it accepted that, if the CAC were to hold that the Employer had breached the Agreement, it would be proper for the CAC also to hold that it breached regulation 18A of TICER.

48) The Employer said that it consistently engaged with the Complainant above and beyond its obligations under the Agreement. For example, in 2020, it voluntarily met with members of the Complainant on 9 March, 20 March, 30 March, 14 April, 10 June, 29 June, 17 July, 17 September and 2 to 4 December 2020. The Employer acknowledged that its voluntary engagement with the Complainant on other occasions did not discharge its obligations in connection with the Annual Plenary Meeting in November 2020 but submitted that it did provide material context for the Complainant’s existing state of knowledge before it was provided with information before the Annual Plenary Meeting. The Employer said that in particular it had provided the Complainant with detailed (a) economic and financial information on 29 May 2020 as part of providing extensive information in advance of the virtual meeting on 10 June 2020 and (b) sales and organic sales growth information by country on 18 September 2020. The Employer said that it had provided extensive information to the Complainant in advance of the Annual Plenary Meeting in November 2020; in particular, it had provided detailed economic and financial information on 5 November 2020. The Employer said that this information had facilitated meaningful consultation between the Complainant and the Chief Financial Officer of the Adecco Group during a session entitled “Financial and Business Results”. The Employer said that, although the Secretary of the AEWC Employee Representatives had raised a request for a further breakdown of information by country further to the Complainant’s email of 10 November 2020, the agreed minutes of this session did not suggest that the Complainant had been prejudiced by not having received such information. The Employer said that, in all the circumstances, the information that the Employer had provided to the Complainant on 29 May 2020, 18 September 2020 and 5 November 2020 was therefore sufficient.

49) The Employer submitted that neither the Agreement nor regulation 18A of TICER expressly required Adecco (UK) to provide business sales performance data by country. The Employer submitted that:

(a) if the parties to the Agreement had intended that the Employer should have to provide such information under the Agreement then they could have included, but did not in fact include, wording to that effect in the Agreement such as “The AEWC Co-Ordinator shall inform the Steering Group each year by the 1st of April of the most recent business sales performance and workforce data per country covered by the geographical scope of the AEWC Agreement”;

(b) the later inclusion of this exact wording in the Rules would have been otiose if such an obligation existed under the Agreement or regulation 18A of TICER; and

(c) if the Agreement were to have the meaning for which the Complainant contended, it would need to make clear and have been drafted more precisely to provide that the Employer has to provide the most recent business sales performance and workforce data per country. ^{[footnote 10]}

The Employer further submitted that information by country did not necessarily show trends in any event because two countries can show similar changes, such as decreasing revenue, for unrelated reasons, such as happened in the Netherlands and Sweden as detailed in paragraphs 27 and 29 above. The Employer also said that it had broken down information in a “regional way” by providing separate information on France; Iberia; Italy; Germany, Austria and Switzerland; and the Nordics and Benelux. The Employer said that this breakdown had not been arbitrary but reflected how the Adecco Group reported both internally and externally. As such, it was tailored to enable the Complainant to undertake their detailed assessment of it in a meaningful way having regard to how the Adecco Group operates in practice.

50) In relation to the points made by the Complainant which are summarised in paragraphs 18 and 19 above, the Employer said that local management decisions fell outside the remit of the Complainant as was clear from clauses II and II.1 of the Agreement. The Employer referred to the following passage in Mr Haines and The British Council in respect of similar wording in regulation 18A(7) of TICER:

These statutory provisions pose a basic challenge to Mr Haines’s claim that the issue of the PRP pilot is a transnational matter. The only EU Member State where a pilot was planned to be introduced was Romania, that is, a single Member State. But the statutory provisions require a minimum of two Member States.^{[footnote 11]}

The Employer also referred to other CAC decisions in support of this submission. ^{[footnote 12]}

51) The Employer also referred to the following CAC decisions which it said more broadly demonstrated limits on European Works Councils’ rights to information: Mr Haines and The British Council (a case in which the European Works Council in question had no contractual right to request information); ^{[footnote 13]} Verizon EWC & The Central Management of Verizon Group (2) (a case in which the European Works Council in question did have a contractual right to request information); ^{[footnote 14]} and HP Inc EWC & HP Inc (2) (a case in which the European Works Council in question had no contractual right to request information). ^{[footnote 15]}

52) The Employer noted that the Complainant had said that it simply could not conduct an assessment of, for example, collective redundancies or other cost-cutting measures that may significantly affect employees, without business sales performance per country. The Employer said that, as the CAC had repeatedly held, there was no “bright line” test whether information is sufficient in any particular case; rather it was always a question of fact. The Employer said that, whilst the Complainant appeared to seek a general declaration from the CAC that it is always entitled to business sales performance data by country, the Employer’s position was that the CAC must assess whether, as a matter of fact in November 2020, the information that the Employer had provided to the Complainant on 18 September 2020 and 5 November 2020 was sufficient for the purposes of the particular Annual Plenary Meeting held in November 2020 having regard to the broad general matters covered during it, as opposed to a particular transnational issue in respect of which an Extraordinary Meeting would be held.

53) Referring to the Complainant’s point about confidentiality set out in paragraph 24 above, the Employer said that as it was under no obligation to provide business sales performance data by country its position was that the issue of whether it would have been entitled to withhold it did not arise. The Employer said that it also respected that the CAC had held Verizon EWC & The Central Management of Verizon Group (3) that circumstances entitling information to be withheld are “rare”. ^{[footnote 16]}

54) The Employer noted that even if the CAC were to determine that one or both of the complaints were well-founded, the Complainant had not requested the CAC to make any orders in accordance with regulations 21(4) and 21(5) of TICER. The Employer said that, in such circumstances, it would be in accordance with the overriding objective in civil litigation for the CAC to refrain from making any order without first affording the Employer an opportunity to comment on any order that the Complainant might request. The Employer said that this was particularly important as the Employer was no longer Adecco CH’s representative agent and the UK had withdrawn from the legal framework provided by Article 11.1 of Directive 2009/38/EC that used to allow the Employer to compel other members of the Adecco Group to assist it in its performance of its obligations under the Agreement.

12. Considerations

55) The Panel is grateful to the parties for their detailed written submissions and accompanying documents which the Panel has considered carefully. The Panel has set out below the considerations relating to each ground of the complaint and its decision relating to that ground followed by a summary of the decisions; the position on orders; and its concluding observation.

13. The Collective Redundancies Complaint

56) The Complainant said that the Employer had failed to comply with the Agreement by failing to inform and consult the EWC about collective redundancies concerning Adecco Group undertakings in at least two countries within the scope of the Agreement. The Complainant said that on 26 May 2020 it had discovered that collective redundancies had already been made or announced in Hungry (13% of the workforce), the Netherlands (43% of the workforce) and Sweden (25% of the workforce), and further redundancies were subsequently announced in Germany in June 2020. The Complainant said that management had claimed that these were “national” issues not linked to a decision taken by European or global management and refused to inform and consult the AEWC or the Steering Group about them.

57) The Employer submitted that the CAC had no jurisdiction to consider events in Hungary and the Netherlands when determining this complaint because they were out of time. On the date of this complaint, 24 November 2020, Regulation 21 of TICER provided so far as material as follows:

(1) Where –

(a) a European Works Council … has been established under regulation 17 …

a complaint may be presented to the CAC by a relevant applicant where paragraph (1A) applies.

(1A) This paragraph applies where a relevant applicant considers that, because of the failure of a defaulter,

(a) the terms of the agreement under regulation 17 …have not been complied with …

(1B) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure or non-compliance.

The Panel agrees with the Employer’s submission that the consequence of regulation 21 of TICER is that the CAC cannot consider acts or omissions which are alleged to constitute failures or non-compliance with the Agreement which occurred prior to 24 May 2020.

Clause V.1.4 of the Agreement provides that:

Extraordinary Meetings will be convened to provide information and engage in Dialogue with the Steering Group on the following transnational matters where exceptional circumstances or decisions arise:

a) in the event of substantial relocations, and

b) in the event of collective redundancies which significantly affect Adecco Employees in each of at least two EEA countries in which Adecco has employees:

c) in the event of an acquisition of a substantial business having transnational effect….

An Extraordinary Meeting of the Steering Group will be convened at the same time or as soon as reasonably practicable after (and in any event within five working days after) the relevant circumstances or decision are announced in the affected Countries to local works councils, trade unions, or other Employee Representatives as required by local laws.

The Employer provided evidence that the dismissals had been announced to a representative of the relevant Hungarian trade union on 6 May 2020; that 13 May 2020, the date five working days afterwards, preceded 24 May 2020; and that the dismissals had all been made by 11 May 2020. The Panel accepts that it has no jurisdiction to consider the events in Hungary. ^{[footnote 17]} The Panel also accepts it has no jurisdiction to consider the events in the Netherlands where dismissals were announced to members of the Dutch national works council on 19 February 2020. For the avoidance of doubt, the Panel accepts the Employer’s submissions in paragraph 33 above that the circumstances that had existed in Hungary and the Netherlands before 24 May 2020 could not properly be said to have been ongoing or form part of any kind of “continuing act” with events on or after 24 May 2020.

58) The Employer did not seek to argue that the collective dismissals in Sweden and Germany were time-barred and the Panel is satisfied that they are not. The Employer provided evidence that the Swedish national recession had led the Swedish management to decide that there should be 65 redundancies between 1 January 2020 and 30 June 2020. The Employer emphasised that the largest number of dismissals of more than one employee on which Swedish management consulted its trade unions took place in December 2019 and January 2020 and the final decision for the “overwhelming majority” of employees had taken place by 1 June 2020. The Panel has examined carefully the dates and figures set out in the witness statement of the Chief Executive Officer of Adecco Group Sweden. These show that Swedish management undertook five rounds of collective redundancies consultation in line with local law: two in December 2019, when a total of 33 dismissals were the subject of consultation; the consultation process in respect of the remainder commenced on 25 May 2020 (16 dismissals); 26 May 2020 (11 dismissals); and 28 May 2020 (five dismissals). In Germany on 29 May 2020 national management had decided that it needed to formulate proposals for redundancies and on 3 June 2020 national management announced a collective redundancy consultation process in accordance with local law. The Panel is satisfied that it has jurisdiction to consider whether the collective redundancies announced in Sweden and in Germany should have been the subject of an Extraordinary Meeting under Clause V.1.4 of the Agreement.

59) The Employer submitted that the Panel should determine the collective redundancies complaint by reference to Clause V.1.4 of the Agreement as a whole in accordance with usual rules of contractual interpretation. The Employer acknowledged that the Agreement did not prescribe that collective redundancies in two or more countries must be the result of a request by Adecco Group Headquarters. However it submitted that the Agreement indicated that it was the parties’ intention that an obligation on the Employer arose only if there was a “transnational issue” in the singular that satisfied one of the three criteria specified in the opening paragraph of Clause V.1.4. The Employer said that this was because the only other reference to the concept is at the end of Clause V.1.4 of the Agreement as follows:

Extraordinary Meetings may take place if time and logistics allow in person, otherwise preferably by telephone or videoconference depending on the transnational issue under consideration, as recommended by the Steering Group and organised by the AEWC Co-ordinator (emphasis added)

The Employer said that, contrary to the Complainant’s submission, the redundancies in Sweden and Germany were not due to the Covid-19 crisis, and did not share a common rationale. The Employer said that, as evidenced in witness statements, the rationale for the collective redundancies in Sweden was the poor state of the Swedish economy; in Germany the rationale included the coming into force of the Temporary Employment Act, an increasing crisis in certain sectors of the German economy, and the Adecco Group’s German business’s inefficient and cost-intensive supply structure.

60) The Panel does not accept the Employer’s submission that Clause V.1.4 is confined to situations where collective redundancies in two EEA countries share a common rationale. The opening paragraph of Clause V.1.4 lists three “transnational issues” which trigger the obligation to convene an Extraordinary Meeting . The Panel considers that, insofar as any weight is to be placed on the reference to the singular “transnational issue” in the concluding paragraph of Clause V.1.4, it is more likely to refer to whether the issue under consideration falls within the first, second or third of the transnational issues listed, but this is not a matter on which the Panel is required to give a concluded view. The Panel is satisfied that the reference to the singular “transnational issue” in the concluding paragraph of Clause V.1.4 does not have the consequence for which the Employer contends. The Panel is satisfied that where there are “collective redundancies which significantly affect Adecco Employees in each of at least two EEA countries in which Adecco has employees” it is irrelevant whether, to use the words of the Employer’s submission, they are “separately formulated in different countries in light of unrelated national circumstances” ^{[footnote 18]} or otherwise for country-specific reasons. The Panel does not consider it a barrier to compliance with Clause V.1.4 that each country may be acting autonomously when proposing collective redundancies; there is no requirement that the collective redundancies referred to in Clause V.1.4 should be proposed, approved or co-ordinated at central level or at any level beyond that of the individual country. It is the responsibility of the Employer to establish any necessary reporting mechanisms to ensure that its obligation to convene an Extraordinary Meeting to provide information and engage in Dialogue with the Steering Group can be met.

61) The Employer submitted that the formulation of proposals in and for different countries did not give rise to an obligation under Clause V.1.4 of the Agreement because of the provisions of Clause II and Clause II.1, which read as follows:.

Clause II – Scope

The Agreement extends to companies (and future companies) of the Adecco Group in the countries part of the EEA, the United Kingdom and Switzerland in which Adecco or its subsidiaries operate. The information and consultation within the AEWC shall be limited to transnational matters. Matters are considered as transnational where they concerned (sic) or have potential effects at least on two undertakings of the Group situated in two different EEA countries on (sic) the Community-scale group of undertakings as a whole.

Clause II.1 – Local Matters and Issues

Issues which relate to one or more undertakings in one or more participating countries and which relate inter alia to day-to-day management, remuneration, compensation, benefits, rights, terms and conditions of employment, staffing levels of the single country and other issues of similar kind will be excluded from discussion under these procedures as they are to be dealt with specifically through local or national information and consultation arrangements (emphasis added by the Employer).

The Complainant submitted that “staffing levels of the single country” could not refer to collective redundancies in two or more countries because such redundancies are clearly and explicitly included within the scope of the Agreement by Clause V.1.4. The Panel agrees with this submission and is satisfied that Clause II.1 does not exclude the formulation of proposals in and for different countries as the Employer contends.

62) For the reasons set out in paragraphs 58-61 above the Panel’s decision is that the complaint that the Employer failed to convene an Extraordinary Meeting to provide information and engage in Dialogue with the Steering Group about collective redundancies which significantly affected existing Adecco Employees in each of at least two countries in which Adecco has employees in accordance with the Amended and Restated Agreement of the Adecco Group European Works Council is well-founded

14. The business sales performance complaint

63) The Complainant submitted that the Employer’s refusal to inform the AEWC Steering Group of the most recent business sales performance data broken down by country constituted a breach of the Agreement. The Complainant said that the Steering Group had repeatedly requested this information in the last two years, most recently following a meeting with management held on 10 June 2020 and in advance of a meeting on 19 November 2020. The Employer submitted that the CAC did not have jurisdiction to consider a complaint in respect of “the last two years” and the Panel agrees that, as stated in paragraph 57 above, it cannot consider alleged beaches of the Agreement occurring prior to 24 May 2020. The Employer also submitted that the CAC could not uphold a complaint against the Employer in respect of the June meeting because it did not constitute an Annual Plenary Meeting under Clause V.1 of the Agreement, nor was it a Steering Group Annual Meeting under Clause V.1.3 or an Extraordinary Meeting under Clause V.1.4; rather it was one which the Employer had held voluntarily as a matter of good labour relations against the background of an unprecedented global emergency. The Employer submitted that the CAC could not uphold a complaint against the Employer to be well-founded when it was under no legal obligation to provide any information. The Panel is prepared to assume for the purposes of this decision, without deciding the point, that this proposition is correct. The Panel has therefore confined its consideration as regards this complaint to whether the Employer’s failure to provide business sales performance data in connection with the November 2020 meeting constituted a breach of the Agreement.

64) The Complainant said that the Employer was required to provide the information by the Agreement; by the Rules of Procedure and by regulation 18A of TICER. The Complainant referred to Articles IV.1 and Article V.1 of the Agreement. Article IV.1 reads as follows:

Clause IV.1 – Information

Information in the context of this Agreement is defined as: timely, taking into account reasonable expectations, communication of data on topics covered by this Agreement, and all elements required for the employee representatives to understand the data in order to develop a reasoned opinion.

The AEWC definition of information is linked to the definition of information provided by the EC Directive 2009/38 and its jurisprudential interpretation within the country of the applicable law and the Court of Justice of the European Union.

The content of the information, the time when, and the manner in which it is given, must be such as to reasonably enable the Employee Representatives within the AEWC to:

a) acquaint themselves with and examine its subject matter;

b) undertake a detailed assessment of its possible impact; and

c) where appropriate, prepare for consultation.

Article V.1 of the Agreement deals with the Annual Plenary Meeting. The fourth paragraph of Article V.1 reads as follows:

The Agenda will include information and dialogue on transnational matters, relating to the Adecco Group within the geographical scope of this Agreement, in particular concerning the structure, economic and financial situation, the probable development of the business and of service provision, sales, the situation of employment including substantial changes concerning organisation, outsourcing, major collective redundancies and layoffs of the workforce, transnational health and safety issues, introduction of new working methods and technology, training, corporate social responsibility, as well as an update on on-going integration of newly acquired companies….

The Complainant also referred to the Chief HR’s letter of 24 June 2020 which explained that Group strategy was developed at Headquarters level and translated into “local operational targets and country budgets” and submitted that this emphasised the need for the AEWC to have information on business sales performance per country in order to understand the rationale for decisions that may subsequently be taken by local management about issues that were covered by the Agreement. The Complainant submitted that it was part of “all elements required for the employee representatives to understand the data in order to develop a reasoned opinion” and that business sales performance per country was squarely within the definition in Article IV.1 of the information that must be provided in order for it to undertake a “detailed assessment” of management proposals on issues within the scope of the Agreement.

65) The Employer submitted that it had provided extensive information to the Complainant, including detailed economic and financial information, in advance of the meeting in November 2020; that the AEWC had not been prejudiced by not having received a breakdown of information by country; and that in all the circumstances the information provided to the Complainant was sufficient. The Employer cited earlier CAC decisions (see paragraphs 50 and 51 above) and said that the CAC had repeatedly held that there was no “bright line” test to determine whether information was sufficient in any particular case; this would always be a question of fact. The Employer said that, whilst the Complainant appeared to seek a general declaration that it was always entitled to business sales performance data by country, the Employer’s position was that the CAC must assess whether, as a matter of fact in November 2020, the information that the Employer had provided to the Complainant on 18 September 2020 and 5 November 2020 was sufficient for the purposes of the Annual Plenary Meeting held in November 2020 having regard to the broad general matters covered during it, as opposed to a particular transnational issue in respect of which an Extraordinary Meeting would be held.

66) The Employer submitted that, had the parties to the Agreement intended that the Employer should have to provide business sales performance data by country then they could have included specific wording to that effect in the Agreement and they had not done so. The Employer also said that the later inclusion in the Rules would have been otiose had the obligation existed under the Agreement and that if the Agreement were to have the meaning for which the Complainant contended the Agreement would have needed to make that clear. The Employer further submitted that information by country did not necessarily show trends because two countries could show similar changes, such as decreasing revenue, for unrelated reasons as had happened in the Netherlands and Sweden and the Employer had in fact broken down information in a regional way which reflected how the Group operated both internally and externally. The Employer emphasised that local management decisions lay outside the remit of the AEWC.

67) The Panel has considered the submissions of both parties carefully. The first matter for the Panel to consider is whether business sales performance data broken down by country should be provided to the Complainant as a matter of course, as the Complainant has submitted, or whether it is a question of fact in each case, dependent on the matters to be discussed in an individual meeting, as the Employer has contended. The Panel appreciates that the information to be provided by an employer to a European Works Council as a matter of course can depend on a range of factors, including the nature of the industry or service and the organisational and management structure of the employer and that there is no ‘one size fits all’ approach to this question. The Employer in this case is a global talent and advisory solutions business. The fundamental significance to the business of the economic and financial situation and sales is reflected in the fourth paragraph of Clause V.1 which identifies these as being among the particular matters on which information and dialogue on transnational matters should be on the agenda for the Annual Plenary Meeting. The Employer said that it had provided information to the Complainant in a “regional way” which reflected how the Group operated in practice both internally and externally and that this was tailored to enable the Complainant to undertake its detailed assessment of it in a “meaningful way”. However the Employer did not explain how this breakdown of information by region was relevant in the light of the witness statements and other documentary evidence which emphasised the very extensive scope of management autonomy within each individual country to achieve local operational targets, working within country-level budgets and a variety of different market conditions, and which made no mention of the regional groupings which the Employer had used to provide information. ^{[footnote 19]} The Employer submitted that the provision of information by country would not necessarily show trends because two countries, such as the Netherlands and Sweden, could show similar changes for unrelated reasons. In the Panel’s view this reinforces the case for information broken down by country, with an accompanying explanation of market conditions in that country if appropriate. The Panel appreciates that it is not the role of the Complainant to discuss local matters and issues as Clause II.1 makes clear. However this does not mean that business sales performance data broken down by country is not required for the Complainant “to understand the data in order to develop a reasoned opinion” and to make a detailed assessment of the possible impact of this information at a transnational level; indeed, the evidence before the Panel shows that the provision of information at a more macro level is unlikely to be adequate for that purpose. The Panel has therefore concluded that in this case business sales performance data broken down by country is required in order for the Complainant to fulfil its role under Clause IV.1 of the Agreement and that the Employer breached the Agreement by failing to provide such data in connection with the November 2020 meeting. As explained in paragraph 70 below the Panel does not accept, as the Employer contended, that this conclusion means that the Rules of Procedure would be necessarily be otiose.

68) Both parties placed considerable emphasis on the implications of the Rules of Procedure in support of their respective submissions. The Preamble to the Agreement states that “This Agreement shall be completed by Rules of Procedure”. Specific provision for the Rules is made in Clause VIII of the Agreement which states that:

The Steering Group in consensus with the AEWC Co-ordinator shall adopt procedural rules for the AEWC.

Should any inconsistencies or discrepancies arise between those own (sic) procedural rules and the content of this AEWC Agreement, the content and principles as stated out in this AEWC Agreement shall prevail.

The Rules themselves provide, so far as material, as follows:

Introduction – The purpose of defining Rules of Procedure

This is the outcome of discussions held between Steering Group Members and Management Representatives, as part of the Agreement improvement process (2016-2018).

The purpose of this document is to complete The Adecco Group European Works Councils Agreement (see page 3 of the preamble) in order to ensure its smooth and effective operations for the benefit of a fluid and transparent information and consultation process.

The Rules of Procedure are non-binding working practices that are not intended to amend the content of Adecco Group European Works Council agreement signed on 24 May 2018.

Information on Business Performance and Workforce Data

The AEWC Co-Ordinator shall inform the Steering Group each year by the 1st of April of the most recent business sales performance and workforce data per country covered by the geographical scope of the AEWC Agreement.

Amending the Rules of Procedure

These Rules of Procedure can be modified by two-thirds majority of the Steering Group members and Management Representatives. (Page 8).

69) The Complainant said that both the Agreement and the Rules state that the Rules are intended to “complete” the Agreement and that the Rules themselves state that they constitute an “improvement” of the Agreement. The Complainant submitted that this meant that they were intended to help interpret and explain the obligations in the Agreement. The Complainant pointed to the statement requiring the AEWC Co-ordinator to inform the Steering Group of the most recent business sales performance and workforce data per country and submitted that this obligation should be honoured in good faith. The Complainant said that this obligation was entirely consistent with the requirements in the Agreement and that it would be perverse if wording in the Rules intended to “complete” the Agreement were to support an assertion that management was not required by the Agreement to provide this information as the Employer had contended. The Employer emphasised the non-binding nature of the Rules and submitted that a breach of the Rules could not, therefore, found a complaint against the Employer.

70) The Panel agrees with the Employer’s submission that the Rules are clearly stated to be non-binding and cannot, as such, found a complaint against the Employer. For the reasons given in paragraph 67 above the Panel has concluded that the Employer breached the Agreement by failing to provide business sales performance data broken down by country. This conclusion is not dependent on the Rules. The Panel has considered whether there is anything in or related to the Rules which casts doubt on that conclusion and has decided that there is not. The Employer submitted that the implication of the reference to the provision of business sales performance data in the Rules meant that it could not have been intended to be an obligation under the Agreement, otherwise such a reference would be otiose. The Panel does not accept this submission. In view of its conclusion that the Agreement itself imports an obligation to provide this data the Panel is not required to express a view on the Complainant’s submission that the Rules help to interpret and explain the Agreement. However the Panel does accept the Complainant’s submission that it would perverse to conclude that because reference is made to a matter in the Rules that of itself means that it cannot be required under the Agreement. This finding is sufficient to dispose of the Employer’s submission. The Panel also notes, however, that the Rule itself can be interpreted, in stipulating the 1 April deadline, as merely laying down, on a non-binding basis, the procedure to be followed in relation to an existing obligation which is required by the Agreement.

71) The Employer said that the Complainant had suggested that the Employer had breached the Rules by failing to provide business sales performance data by country by 1 April 2020 and that, even if a breach of the Rules could properly found a complaint to the CAC, it would be time-barred as the jurisdiction of the CAC was limited to alleged failures or non-compliance occurring on or after 24 May 2020. As stated earlier in this decision, the Panel agrees that its jurisdiction is limited to failures or non-compliance on or after 24 May 2020. The Employer properly acknowledged that the limitation period issue did not deny the CAC jurisdiction to consider the underlying substance of the business sales performance complaint but merely meant that it could consider it only in connection with the November 2020 Annual Plenary Meeting. As stated in paragraph 63 above the Panel has confined its deliberations to that issue.

72) For the reasons given in paragraphs 67-70 above the Panel has decided that the complaint that the Employer failed to comply with the terms of the Amended and Restated Agreement of the Adecco Group European Works Council by refusing to supply business sales performance data broken down by country in connection with the November 2020 Annual Plenary Meeting is well-founded.

73) The Complainant submitted that the Employer’s failure to provide business sales performance data broken down by country breached regulation 18A of TICER for the same reasons as it breached the Agreement. Regulation 18A, so far as material, reads as follows:

(2) The central management, or any more appropriate level of management, shall give information to –

(a) members of a European Works Council … … in accordance with paragraph (3).

(3) The content of the information, the time when, and manner in which it is given, must be such as to enable the recipients to—

(a) acquaint themselves with and examine its subject matter;

(b) undertake a detailed assessment of its possible impact; and

(c) where appropriate, prepare for consultation.

The Employer noted that Clause IV.1 of the Agreement almost exactly replicated regulation 18A of TICER. The Employer contended that it had complied with regulation 18A for the same reasons it gave for having complied with the Agreement but accepted that, if the CAC were to hold that it had breached the Agreement it would be proper for it also to hold that the Employer had breached regulation 18A of TICER. The Panel agrees and finds accordingly that the Employer breached regulation 18A of TICER.

74) For the reasons given in paragraphs 67-70 and 73 above the Panel has decided that the complaint that the Employer breached regulation 18A of TICER by refusing to supply business sales performance data broken down by country in connection with the November 2020 Annual Plenary Meeting is well-founded.

15. Decision

75) The complaint that the Employer failed to convene an Extraordinary Meeting to provide information and engage in Dialogue with the Steering Group about collective redundancies which significantly affected existing Adecco Employees in each of at least two countries in which Adecco has employees in accordance with the Amended and Restated Agreement of the Adecco Group European Works Council is well-founded.

The complaint that the Employer failed to comply with the terms of the Amended and Restated Agreement of the Adecco Group European Works Council by refusing to supply business sales performance data broken down by country in connection with the November 2020 Annual Plenary Meeting is well-founded.

The complaint that the Employer breached regulation 18A of TICER by refusing to supply business sales performance data broken down by country in connection with the November 2020 Annual Plenary Meeting is well-founded.

16. Orders

76) The Panel notes that the Complainant did not ask the CAC to make any orders under regulation 21(4) and (21(5) of TICER in the event that the Panel found the complaint to be well-founded. The Employer submitted that in such circumstances it would be in accordance with the overriding objective in civil litigation for the CAC to refrain from making any order without first affording the Employer an opportunity to comment on any order that the Complainant might request.

77) The Panel has decided that if the Complainant wishes to ask the CAC to consider making an order under regulation 21(4) or (5) of TICER it should make such a request within 21 days of the date of this decision. The request should specify the terms of the order which is sought. In the event that the CAC receives such a request it will copy that request to the Employer and afford the Employer an opportunity to comment on it before reaching a decision on the request. The CAC will then issue a supplementary decision dealing with this matter.

17. Concluding observation

78) The Employer requested the CAC, in the event that it found the collective redundancies complaint to be well-founded and having regard to regulation 21(6) of TICER, to record as findings of fact in its decision that the Employer , as a matter of good labour relations, responded to the Complainant’s letter of 26 May 2020 in significant detail on 24 June 2020 to explain its position and met with the AEWC, including representatives of Germany, Hungary, the Netherlands and Sweden and its chosen expert to discuss its letter of 26 May 2020 and the German collective redundancies announced in June 2020. The Panel did not consider it necessary or appropriate to record these matters, as set out by the Employer, as findings of fact and it makes no comment on them.

Professor Gillian Morris, Panel Chair

Mr Robert Lummis

Mr Gerry Veart

05 March 2021

1. [2020] EWHC 1622 (QB) ↩

2. Case C-188/03, paragraph 36. ↩

3. The Employer contrasted this with the position in a number of other cases: HP Inc UK Limited EWC and HP Inc UK Limited EWC/24/ 2019, paragraph 122; Oracle EWC and Oracle Corporation UK Ltd EWC/17/2017, paragraph 69; Hans-Peter Hinrichs and Others and Oracle Corporation UK Ltd UKEAT/0194/18/RN at [42] and [47]. ↩

4. The Employer referred to the opinion of Lord Nicholls in Haward and others v Fawcetts (a firm) and others [2006] UKHL 9 at [3]:

   …The starting date for the six year limitation period is when a cause of action accrues. In claims based on negligence a cause of action accrues when real damage, as distinct from minimal damage, is suffered. This principle has been applied in limitation cases even where, at the date of accrual of the cause of action, the claimant did not know he had suffered damage. The injustices to which this harsh approach gave rise are well known… They were highlighted in decisions of your Lordships’ House in appeals such as the pneumoconiosis case of Cartledge v E Jopling & Sons Ltd [1963] AC 758 and the defective chimney case of Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1. There claimants were held to be statute-barred before they knew or could be expected to know they had suffered damage.

   The Employer also referred to Lord Nicholls at [2], stating why limitation periods are necessary:

   Statutes of limitation seek to hold a balance between two competing interests: the interests of claimants in having maximum opportunity to pursue their legal claims, and the interests of defendants in not having to defend stale proceedings. ↩

5. EWC /34/2020. ↩

6. EWC/23.2019. ↩

7. [2010 UKSC 14 at [45] ↩

8. EWC/7/2012, paragraph 82:

   The Panel will first resolve a preliminary question. Mr Haines asked the CAC to consider his complaints not only in the context of the Employer’s statutory duties under the Regulations but also in the light of the expectations described in the EWC Code of Practice (“the Code”), which was an agreement developed by the parties. The Employer objected to such weight being given to the Code as it was not intended to be legally binding, and was not the source of the statutory duties found in Regulation 18A and the Schedule’s Subsidiary Requirements, over which the CAC had jurisdiction. The Panel accepts that the Code was negotiated by the parties in good faith in order to clarify how they thought the Subsidiary Requirements could operate in the particular circumstances of their EWC. Seen in that light, the Code is clearly a useful document and reference point for the parties. However, in terms of the law, the Panel accepts the Employer’s position in relation to the Code not being legally enforceable. A breach of the Code as such cannot in itself found a complaint under the Regulations. The Employer’s legally enforceable statutory duties to inform and consult are those set out in the Regulations and not those in the parties’ Code. ↩

9. [2008] EWCA Civ 584 at [23]. ↩

10. The Employer referred to Verizon EWC & The Central Management of Verizon Group (3) EWC/26/2020, paragraph 31 to support this proposition. ↩

11. EWC /7/2012, paragraphs 92 and 93. ↩

12. Vesuvius plc EWC & Vesuvius plc (1) EWC/20/2019, paragraph 83, in respect of the Vesuvius European Works Council agreement:

    Had the EWC’s request sought information on likely redundancy costs split between the different countries affected then we accept that it would have been a request for information of a national rather than transnational nature falling outside the scope of the EWC agreement and

    HP Inc EWC & HP Inc EWC/29/2020, paragraph 30: “This case reminds the panel that information and consultation must fall within the EWC’s transnational remit”. ↩

13. Above, note 11, paragraphs 87-89:

    …. The report to which Mr Haines’s complaint primarily related was presented at the Paris meeting on 28 March 2012. It dealt with matters around the issue of restructuring. The Panel accepts that Mr Haines on behalf of the EWC felt that more time was needed for the purposes of producing an opinion and engaging in consultation. On the other hand, the Employer adduced evidence that this issue was in effect the subject of a continual process of discussion before and during the Paris meeting and was an on-going discussion after it.

    88) The second element of the complaint was that the Employer allegedly failed to provide sufficiently detailed information, which was said to be contrary to the same provisions. Once again the Employer adduced evidence that its consultative process involved on-going communications with the Steering Committee as well as the EWC, and that further consultation took place between the scheduled meetings of both the full EWC and the Steering Committee. The Employer showed a willingness to communicate and meet with both bodies, and to do so more frequently than required by the letter of the Regulations. Further, as an important part of this process, the EWC was able to ask for additional information by way of clarification, and if such information was available at the time, the Employer was normally willing to provide it.

    89) In respect of the first two complaints the Panel is satisfied that the Employer has not sought to withhold information, but rather it saw evidence that there was a regular flow of information and adequate consultation. The Panel concludes that overall the content of the information, and the time when and the manner in which it was provided enabled the recipients to acquaint themselves with and examine the subject matter, undertake a detailed assessment of impact, and to prepare for consultation. The Panel also concludes that the content of the consultation, and the time when and the manner in which it took place, was such as to enable the EWC to express an opinion. The Employer thus complied with Regulation 18A(3) and (5)” (emphasis added); ↩

14. EWC/23/2019, paragraph 50 and 52:

    50) The Complainant chose four areas to exemplify its contention that the information provided by the Employer was insufficient to enable it to carry out its role. These were set out in paragraph 37 above. The Panel has therefore commented specifically on these areas in this decision although it also considered carefully the information provided in all the remaining contexts. The first was that there was no proof that the current teams were inefficient or ineffective. The Panel concurs with the view of the Employer that it is not the role of the Complainant to make an independent assessment of whether a business decision is sound nor, therefore, is there an obligation on the Employer to provide proof to persuade the Complainant of the viability of any such decision to the Complainant’s satisfaction. The second was that information provided about the benefits of the company, customers and employees was inadequate. Again the Panel is satisfied that the information provided by the Employer was sufficient to enable the Complainant to understand why the Employer had come to the view that it had. The third was financial information. The Panel notes that the slide on which the information was given expressly stated that the Project was “not a cost reduction driven project but a strategic investment for our organization”. That being so the Panel does not consider that the Employer was required to give a greater breakdown of the costs than appeared on the slide in question…

    52) The Panel agrees with the Complainant that there is no “bright line” test to determine whether the information provided by an Employer is sufficient in any given context. The Panel also agrees with the Complainant that in order to fulfil its role it must understand a decision and the rationale for that decision. However this does not mean that the Complainant should feel unable to fulfil its role without having access to the full range of information it considers it would need were it in the shoes of the Employer as decisionmaker. The Complainant said that ultimately the question for the Panel was whether the Complainant had acted reasonably in compliance with its obligations in asking for information and whether the information given was sufficient or insufficient. The Panel does not consider it necessary to examine whether each and every question asked by the Complainant was “reasonable” because the evidence showed that in any event the Employer had genuinely sought to address the questions raised prior and up to 10 April 2019. The Panel appreciates that the Complainant felt that some of the questions it had raised on 16 January 2019 had not been answered but the Complainant did not specify what these questions were so the Panel was unable to consider that contention further. In relation to the sufficiency of information, having reviewed the totality of the evidence before it the Panel has concluded that the information provided by the Employer was sufficient in the circumstances to enable the Complainant to carry out its role in the information and consultation process. The Panel has therefore decided that the Complainant’s first complaint is not well-founded” (emphasis added). ↩

15. EWC/29/2020:

    i. in paragraph 125(d), “the panel agrees with Mr Hopper that the employer is not required to answer each of the EWC’s questions”; and

    ii. in paragraph 132, “The principles applied in Verizon, with which this panel agrees, are that (a) the EWC is not entitled to the same information available to the employer as decisionmaker; (b) the extent of the information required will depend on the rationale for the proposals. In Verizon, the extent of the financial information required related to the justification of the exercise as strategic investment, not cost reduction; (c) it is not the role of the EWC to assess whether the employer’s business reasons are sound; (d) it may be unnecessary to examine each and every detailed request for information made by the EWC; and (e) there is no definitive, “bright line” test whether information is sufficient in any particular case; it is a question of fact”. ↩

16. EWC/26/2020, paragraph 33. ↩

17. The Employer also submitted that the dismissals in Hungary, which it said were limited to nine, did not constitute “collective redundancies” under the Hungarian Labour Code. In view of the Panel’s decision that events in Hungary are time-barred it has not investigated this matter further. ↩

18. See paragraph 40 above. ↩

19. The Panel notes that the Nordics and Benelux were grouped together for this purpose: see paragraph 49 above. ↩