Decision

Decision on whether any orders should be made

Updated 8 March 2021

Applies to England, Scotland and Wales

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Case Number EWC/32/2020

12 April 2021

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 1999 AS AMENDED

DECISION ON WHETHER ANY ORDERS SHOULD BE MADE IN RELATION TO 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. Owing to Mr Veart’s retirement from the CAC on 31 March 2021, Mr Veart was replaced for the purposes of this decision by Ms. Fiona Wilson. 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.

4) The complaint dated 24 November 2020 submitted to the CAC read 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) In a decision dated 5 March 2021 the Panel concluded that:

(1) 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.

(2) 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.

(3) 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.

6) In its decision of 5 March 2021 the Panel noted that the Complainant had not asked 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. Regulation 21 (4) and 21(5), so far as material, read as follows:

(4) Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with the terms of the agreement under regulation 17 ….

(5) An order made under paragraph (4) shall specify –

(a) the steps which the defaulter is required to take;

(b) the date of the failure; and

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

The Employer had 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. The Panel decided that if the Complainant wished 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 the decision and, in doing so, should specify the terms of the order which was being sought. The Panel also decided that, in the event that the CAC received such a request, it would copy that request to the Employer and afford the Employer an opportunity to comment on it before reaching a decision on the request, following which it would issue a supplementary decision dealing with the matter. The Complainant submitted a request dated 19 March 2021 for an order in respect of both the collective redundancies complaint and the business sales performance data complaint. This request was copied to the Employer, which submitted a response dated 31 March 2021. No further comments were sought by the Panel from either party.

3. Summary of the Complainant’s submissions

7) The Complainant requested the CAC to make an order under regulation 21(4) of TICER in respect of both the collective redundancies and the business sales performance data complaints.

8) In relation to the collective redundancies complaint, the Complainant said that it regretted that it was now too late for consultation on those redundancies to take place since it understood that the redundancies themselves had now been implemented. The Complainant said that it therefore sought an order from the CAC requiring central management to:

• hold an extraordinary meeting to discuss the collective redundancies made during 2020 in the countries covered by the Agreement;

• provide to the AEWC a list of individual contract terminations as a result of redundancy in the countries covered by the Agreement during 2020, detailing the age, number of years’ service with Adecco group, gender, place of work and job titles of the individuals affected.

The Complainant said that this information was sought in order for the AEWC to understand the number of redundancies actually made during this period, the establishments in which the redundancies were made, and the positions that were declared redundant in order to assess the possible impact of the redundancies on retained employees at those establishments. The Complainant said that information about the age and gender of the redundant employees would help the AEWC assess whether certain categories of employee (eg men or women, older or younger employees, employees with shorter or longer service) were disproportionately made redundant, and what impact that might have on gender balance within workplaces and on the loss of employees’ experience.

9) In relation to the business sales performance data complaint, the Complainant said that it sought an order from the CAC requiring central management to provide to the AEWC financial data broken down by each country within scope of the Agreement detailing:

For the most recent company financial year ending before 1 April 2020, plus – for the purpose of comparison - the previous financial year and forecasts for the following year:

(1) Sales revenue by segment (as listed in the Adecco 2020 annual report);

(2) A breakdown of costs directly related to sales, including the costs of personnel employed;

(3) Gross profit;

(4) A breakdown of indirect costs (overheads);

(5) EBITA (Operating Profit);

(6) EBITA Margin %;

(7) Net profit of the year;

(8) Retained Earnings/(Loss) from Previous Years;

(9) Cash flow;

(10) Net debt;

(11) Operational targets for the year (as mentioned in paragraph 12 of the CAC’s decision);

(12) Budget for the year (as mentioned in paragraph 12 of the CAC’s decision);

(13) An accompanying explanation of market conditions in each country (see paragraph 67 of the CAC’s decision).

For future years, the above information – updated to the following year - by 1 April.

10) The Complainant said that, in the past, management had claimed that financial information broken down by country was commercially sensitive or subject to stock exchange rules. The Complainant made a number of submissions in the event that the Employer sought to repeat that claim. As these submissions played no part in the Panel’s decision they are not repeated here.

4. Summary of the Employer’s submissions

11) The Employer opposed the CAC making any orders on three main grounds:

(a) the passage of time meant that no orders could remedy the failures that the CAC had determined to have occurred in 2020;

(b) the orders that the Complainant had requested would require the Employer to act in ways that the CAC had not determined that it had failed to act; and

(c) the Employer was no longer party to the Agreement and could no longer compel members of the Adecco Group to act in ways that would be necessary for it to comply with any orders.

12) The Employer emphasised that regulation 21(4) of TICER made clear that the CAC was not required to make any orders and that regulation 21(4) and (5) provided that an order must have a nexus to the well-founded complaint. The Employer recognised that previous CAC decisions were not binding on other panels but referred to IWGB and CIS Security Ltd [footnote 1] where the Panel stated that:

While CAC decisions are not binding on other panels they do set out the thinking of panels chosen for their industrial knowledge and experience. While many CAC decisions turn on their own facts some involve determinations of general principle. Where CAC panels have consistently determined a point of principle in one way that is of significance, particularly because it involves the consideration of the issue by a number of panels all selected for their industrial knowledge including panel members who have many years of experience in the workplace.

The Employer said that the CAC had on three occasions been required to consider making orders under TICER in respect of well-founded complaints concerning information and consultation processes and on one occasion had been required to consider making orders under TICER in respect of the conduct of future information and consultation processes. The Employer submitted that the CAC should apply the same principles on this occasion as in those previous cases and contended that the CAC’s refusal on two occasions to make orders in respect of historic events was particularly relevant. [footnote 2] The Employer also referred to WBA, [footnote 3] where the CAC had held that:

The complaint relates to past events and the CAC does not have jurisdiction to make orders governing the future conduct of the parties. The Panel has therefore made no order in relation to this complaint.

13) In relation to the collective redundancies complaint, the Employer noted that the Complainant had requested the CAC to order the Employer to hold an extraordinary meeting “to discuss the collective redundancies made during 2020 in the countries covered by the … Agreement”. The Employer said that the CAC had not determined that the Employer had failed to hold such a meeting on all collective redundancies in 2020; instead it had determined that the Employer should have held an extraordinary meeting on certain collective redundancies in Sweden and Germany. The Employer said that any order should be limited to requiring the Employer to “take such steps as are necessary to comply with the terms of the agreement” (TICER, regulation 21(4)) and should, therefore, only require the Employer to hold an extraordinary meeting on the collective redundancies being proposed in Germany and Sweden on or after 24 May 2020. However the Employer said that the CAC should refrain from making such an order when the Complainant had correctly recognised that “it is now too late for consultation on those redundancies to take place”. The Employer said that such a decision would also be in accordance with Vesuvius (1), [footnote 4] which referred to the importance of the “passage of time” as a reason for the CAC refraining from making any order and HP (2), [footnote 5] which referred to it being an important factor that “the proposals to which the complaint relates no longer exist” when the CAC refused to make an order.

14) The Employer noted that the Complainant had requested the CAC to order the Employer to provide the following information:

a list of individual contract terminations as a result of redundancy in the countries covered by the EWC Agreement during 2020, detailing the age, number of years’ service with Adecco group, gender, place of work and job titles of the individuals affected.

The Employer said that the CAC had not determined that the Employer had failed to provide such information; instead, it had determined that the Employer should have provided information on certain of the collective redundancies in Sweden and Germany. The Employer submitted that the CAC should accordingly not order the Employer to provide information as requested on all individuals made redundant by the Adecco Group in 2020 when it was never required to provide such information under the Agreement and certain redundancies that would fall within the scope of such an order, such as those in Hungary and the Netherlands, were ones in respect of which the CAC did not have jurisdiction to determine whether any failure occurred. The Employer said that any order should be limited to requiring the Employer to provide information on the collective redundancies being proposed in Germany and Sweden on or after 24 May 2020 but that the CAC should refrain from making such an order for the reasons detailed in paragraph 13 above. The Employer also said that it was additionally relevant that the CAC had rejected the HP European Works Council’s request in HP (2) despite the EWC’s expert suggesting, in a similar way to on this occasion, that “it would “still be useful” for the EWC to have the information… but modified for the passage of time”. [footnote 6]

15) The Employer made five further submissions in relation to the request for the CAC to order the Employer to provide information. First, that if the CAC refrained from ordering an extraordinary meeting then the AEWC would have no need for the information. Second, that the AEWC had now received detailed information on the relevant collective redundancies in Germany and Sweden as the Employer had provided detailed evidence about them to the CAC in its Bundle of Evidence for the Complaint and the witness statements of members of the Adecco Group’s German and Swedish management, all of which were cross-copied to the AEWC. Third, that the Complainant had requested information that the Employer was not required to provide at the time of the failure determined by the CAC. The Employer said that, in particular, it was not required to provide:

(a) information to the AEWC at a granular level of “individual contract terminations” as such information would not have been necessary in the light of the AEWC’s transnational remit; or

(b) sensitive personal information, such as particular individuals’ ages or information linking the personal characteristics of individuals, such as their age and gender, with their job title.

Fourth, the individuals on whom the Complainant requested information were no longer employees of the Adecco Group and the AEWC could therefore no longer represent their interests. The Employer said that disclosure of information about these individuals also gave rise to significant data protection issues as the employment relationships that formed the basis for members of the Adecco Group to process their data no longer existed. Fifth the Employer contended that the Complainant had not made its request for the statutory purpose of the CAC requiring the Employer “to take such steps as are necessary to comply with the terms of the agreement”. The Employer said that, in addition to recognising that “it is now too late for consultation on those redundancies to take place”, the Complainant had admitted that it was in fact motivated by ancillary purposes of being able:

(a) “to assess the possible impact of the redundancies on retained employees at those establishments” (emphasis added). The Employer said that the historic nature of the redundancies meant that there was no “possible impact” to assess and that the Complainant had no contractual right to audit any impact of historic redundancies; and

(b) to assess “what impact that might have on gender balance within workplaces and on the loss of employees’ experience” (emphasis added). The Employer again said that the historic nature of the redundancies meant that there was no potential future impact to assess and that the Complainant had no contractual right to audit any impact of historic redundancies.

16) In relation to the business sales performance data complaint, the Employer noted that the Complainant had requested the CAC to order the Employer to provide information on thirteen separate metrics for “the most recent company financial year ending before 1 April 2020, plus – for the purpose of comparison - the previous financial year and forecasts for the following year”. The Employer said that the Complainant had never previously suggested that the Employer had been required but failed to provide information on these thirteen metrics: on 10 November 2020 and in advance of the Annual Plenary Meeting, and again on 19 November 2020 and during that meeting, it had merely requested “business sales performance data country by country”. The Employer said that during stage 1 of the dispute resolution process under the Agreement, and at the time of explaining its complaint, the Complainant had been more specific only insofar as asking the Employer to share information on EBITA and gross profit on a country-by-country basis; and that when requested by the CAC to “respond in as much detail as possible” to the Employer’s comments on 1 February 2021, it had still not suggested that the Employer should have but had failed to provide information on all thirteen metrics. The Employer said that as such, the Complainant’s request could be characterised as a “wish list” for the future as opposed to reflecting the failure that it complained had taken place.

17) The Employer said that the CAC had made no decision that the Employer had failed to provide information on each of the thirteen metrics in the light of the Complainant not having complained that they had not been provided. The Employer said that, entirely understandably given how the Complainant had chosen to pursue its complaint, the CAC had merely 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.

The Employer said that, of the thirteen separate metrics, only one was prescribed in the CAC’s considerations: - “an accompanying explanation of market conditions in that country if appropriate” - and two others - “local operational targets and country budgets” - were referred to but not prescribed by the CAC.

18) The Employer said that, in addition to the CAC refraining from making an order in the excessively broad terms requested, the CAC should refrain from making any order for three reasons. First it was now too late for the requested information to be meaningful in accordance with the Agreement as:

(a) the meeting in connection with which the CAC had determined that the Employer should have provided more detailed information took place in November 2020;

(b) the data requested did not relate to the current state of the Adecco Group as it had recently entered a new financial year. The two years’ information requested by the Complainant were accordingly historic in nature and unrepresentative of the Adecco Group in its current state given the supervening onset of the coronavirus pandemic; and

(c) forecasts for the most recent full financial year that recently ended would be of mere historic interest given that they predated the onset of the coronavirus pandemic and actual data for the year now existed.

Second, the Employer could confirm to the CAC that the Complainant would “shortly” be provided with a country-by-country breakdown of the 2020 full year sales and organic sales growth year-on-year information. The Employer suggested that this was a relevant consideration for the CAC in the light of Emerson as it would:

(a) ensure that the commitment made by the Employer during stage 1 of the parties’ dispute resolution process to provide this information was met;

(b) enable the AEWC to see year-on-year-on-year country trends when considered alongside the 2019 full year information that the Employer had already provided to the AEWC; and

(c) mean that, notwithstanding them not being legally binding, the Employer would have provided the AEWC with the information specified in the Rules of Procedure. The Employer said that this was a relevant consideration given that the decision suggested that compliance with the Rules would constitute a procedure by which compliance with the Agreement could take place. [footnote 7]

Third, disclosure of the above additional information would not be insufficient merely because the Complainant might have requested even more information. The Employer said that the AEWC’s remit was “transnational matters” and the granular metrics that made up the national level “business sales performance data” that would shortly be provided could not all be said to be necessary for it to perform its transnational remit. The Employer also noted that the Complainant had suggested that its request was for an ancillary purpose of enabling it to understand “ the rationale for company decisions on which central management and the EWC are currently in dialogue” and what has “caused the various businesses to trade at a loss and resulted in the company deciding to reorganise those businesses”. The Employer said that the current engagement with the AEWC on these reorganisations was an irrelevant consideration because the CAC had not determined that the Employer had failed to provide information about them. The Employer also said that the current dialogue was one that:

(a) was being undertaken by Adecco (Ireland) and not by the Employer;

(b) was being undertaken on an expressly voluntary basis because these reorganisations were not ones on which Adecco (Ireland) was required to engage with the AEWC in the form of an extraordinary meeting outside the context of an Annual Plenary Meeting and such a meeting was not currently due. The Employer said that the CAC should not exercise its discretion to require the Employer to provide the AEWC with more information for a process in which it is not entitled to any information at this time; and

(c) significantly post-dated the Annual Plenary Meeting held in November 2020 in respect of which the CAC had found a failure to have occurred.

19) The Employer noted that the Complainant had further requested the CAC to order the Employer to provide the same financial data as for its other request for “future years … updated to the following year – by 1 April”. The Employer said that the CAC should refrain from ordering the Employer to provide further information in future on the basis that the CAC had not determined any failure to have occurred in respect of the Employer’s future provision of information; Adecco (2) [footnote 8] confirmed that the CAC did not have jurisdiction over future matters; and WBA confirmed that “the CAC does not have jurisdiction to make orders governing the future conduct of the parties”. [footnote 9] The Employer also said that the Agreement imposed no obligation to provide information by 1 April and that the CAC had determined that the Rules of Procedure, the document that refers to that date, were not legally-binding. The Employer said that the Agreement did not prescribe that the list of information requested by the Complainant must always be provided. The Employer said that the CAC should refrain from ordering the Employer to provide specified information in perpetuity irrespective of the possibility of material changes to the Adecco Group’s future organisational and management structure. [footnote 10] Finally the Employer said that any order that the Employer must provide specific information in perpetuity would override the parties’ choice not to prescribe the thirteen metrics as ones that must always be provided in the Agreement. Such a judicial rewriting of the AEWC Agreement would fundamentally interfere with the principle of the autonomy of the parties, noted in recital 19 of Directive 2009/38/EC [footnote 11] and referred to as an “underlying” principle by the EAT in Manpower. [footnote 12]

20) The Employer concluded its submissions on both complaints by stating that, as determined in Adecco (2), [footnote 13] the Employer was no longer party to the Agreement or the representative agent of Adecco Group AG. The Employer submitted that the CAC should therefore refrain from making any order against it for the following reasons.

(a) the CAC cannot properly exercise its discretion to order the Employer “to take such steps as are necessary to comply with the terms of the agreement” when it is no longer party to the agreement;

(b) the United Kingdom has withdrawn itself from the framework of European Union (“EU”) law since the failures determined by the CAC occurred. That framework used to require members of the Adecco Group in member states of the EU, such as Germany and Sweden, to assist the Employer with its performance of its EWC obligations, such as by providing it with relevant information. In particular, that framework had been held by the Court of Justice of the EU in ADS Anker [footnote 14] to mean that, albeit in a different but analogous information context under Directive 2009/38/EC:

… the other undertakings belonging to the group and located in the Member States are under an obligation to assist the deemed central management in fulfilling the main obligation referred to in Article 4(1) of the Directive. The corollary of the deemed central management’s right to receive essential information is an obligation on the part of the management of each of the other undertakings belonging to the group to supply the deemed central management with the information concerned where it is in possession of the information or is in a position to obtain it (Kühne & Nagel, paragraph 59).

The Employer said that it no longer enjoyed any “right to receive” information from members of the Adecco Group in member states of the EU and it would therefore be inequitable for the CAC to order the Employer to provide information that it did not hold and which it could not compel foreign legal entities to provide to it. The Employer said that, in addition, it enjoyed no legal basis to compel other members of the Adecco Group to release members of the AEWC from their usual duties to attend any extraordinary meeting with it when it had no standing under EU law, or Swedish and German management members to attend such a meeting, having regard to them being the appropriate members of management to discuss the separate and unrelated matters in their respective countries. The Employer said that its position was based on the maxim “equity does not act in vain”, a maxim which remained relevant in the light of the Supreme Court’s confirmation in Futter and another v Commissioners for Her Majesty’s Revenue and Customs that it continued to exist and reflected a summary statement of the “broad theme which underlies equitable concepts and principles” to which the CAC should have regard before making a discretionary order.

The Employer requested that any orders allow it to impose confidentiality restrictions in order to protect the collective interests of the Adecco Group’s members.

5. Considerations

21) The Panel is grateful to the parties for their detailed written submissions which the Panel has considered carefully.

22) Regulations 22(4) and (5) of TICER read as follows:

(4) Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with the terms of the agreement under regulation 17 ….

(5) An order made under paragraph (4) shall specify –

(a) the steps which the defaulter is required to take;

(b) the date of the failure; and

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

The Panel has decided that, for the reasons set out in paragraph 23 below, no order should be made in relation to the collective redundancies complaint. The Panel has also decided that, for the reason set out in paragraph 26 below, no order should be made in relation to the business sales performance data at this stage. However, the Panel will reconsider the Complainant’s request to make such an order in the circumstances described in paragraph 26.

23) In relation to the collective redundancies complaint, the Panel accepts the Employer’s submission that the CAC’s decision that the complaint was well-founded was confined to the redundancies in Sweden and Germany. The Panel also accepts that it is now too late for consultation on those redundancies to take place. The Panel does not consider that the fact that redundancies have been implemented will necessarily mean that an order under regulation 21(4) of TICER should never be imposed where an EWC Agreement has been breached. The Panel’s decision that no order should be imposed in this case is based on the combination of the following factors: (a) the fact that several months have passed since the redundancies took place; (b) the statement in the Agreement that “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”; and (c) the fact that detailed information about the collective redundancies in Sweden and Germany was provided to the Complainant in the Employer’s evidence in response to the complaint.

24) The Panel accepts the Employer’s submission that the CAC did not determine that the Employer had failed to provide the specific information referred to by the Complainant in its request for an order (see paragraph 8 above for the terms of that request). The Panel makes no finding on whether, had an Extraordinary Meeting been held in accordance with the terms of the Agreement, the Complainant would or would not have been entitled to that information and nothing in this decision should be seen as expressing a view on that matter.

25) In relation to the business performance data complaint, the Panel accepts the Employer’s submission that it has no jurisdiction to make an order in respect of future conduct by the Employer. The Panel’s deliberations are confined to the question whether it should make an order in respect of the business sales performance data broken down by country which the Employer failed to supply in connection with the November 2020 Annual Plenary Meeting. The Panel accepts, as the Employer submitted, that the CAC’s decision that the complaint was well-founded did not specify the thirteen metrics set out by the Complainant in paragraph 9 above. That being so, the Panel does not consider that it is empowered to specify these metrics in an order under regulation 21(4) of TICER. The Panel has not, therefore, considered the appropriateness or otherwise of these metrics and nothing in this decision should be taken as expressing a view on their appropriateness or otherwise.

26) The Panel notes the Employer’s statement that “the AEWC will shortly be provided with a country-by-country breakdown of the 2020 full year sales and organic sales growth year-on-year information”. The Panel considers that, if this information is provided to the AEWC by the Employer, it will not be necessary for the Panel to make an order in relation to the business sales performance data complaint. However the Panel also notes that the Employer has merely stated that the information will be provided “shortly” without defining what this means or setting any deadline for the provision of this information. The Panel has decided that, if the CAC is informed that the Employer has failed to provide the Complainant with “a country-by-country breakdown of the 2020 full year sales and organic sales growth year-on-year information” within 21 days of the date of this decision, the Panel will reconsider its decision not to impose an order in relation to the business sales performance data complaint. Once the 21 day period has passed, the Complainant will have a further 14 days in which to inform the CAC that the specified information has not been provided. If that 14-day period expires without the CAC being informed that the specified information has not been provided the case will be closed by the CAC.

6. Decision

27) In the exercise of its discretion under regulation 21(4) of TICER the CAC has decided that:

(1) No order should be made in relation to the collective redundancies complaint;

(2) No order should be made in relation to the business sales performance data complaint at this stage.

28) The Panel has further decided that, if the CAC is informed that the Employer has failed to provide the Complainant with “a country-by-country breakdown of the 2020 full year sales and organic sales growth year-on-year information” within 21 days of the date of this decision, the Panel will reconsider its decision not to impose an order in relation to the business sales performance data complaint. Once the 21 day period has passed, the Complainant will have a further 14 days in which to inform the CAC that the specified information has not been provided. If that 14-day period expires without the CAC being informed that the specified information has not been provided the case will be closed by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Robert Lummis

Ms Fiona Wilson

12 April 2021

  1. TURI/1091 (2019), paragraph 37. ↩

  2. The Employer referred to the following cases:

    Emerson, EWC/13 (2015), paragraph 41: “The Panel notes the remedy sought by the Complainants, set out in paragraph 27 above. The Panel also notes the Employer’s response, set out in paragraph 32 above, that it intended in any event to hold a meeting of the EEEWC in the immediate future subject to resources such as interpreters being available. In view of the Employer’s response the Panel has decided not to make an order under regulation 21(4) of TICER.”

    Vesuvius (1) EWC/20 (2019), paragraph 103: “… We were not requested by the Complainants to make any orders for specific action to be taken (as opposed to decisions) in relation to the complaint. In any event in our view it would not in any event be appropriate for us to make any orders to be given for specific action to be taken in light of (a) the passage of time, (b) the stipulation in TICER that “no order of the CAC shall have the effect of suspending or altering the effect of any act done….by the central management or the local management” and (c) the fact that the Complainants solely seek a declaration.”

    HP (2) EWC/29(2020), paragraphs 150 to 154, quoting the following:

    151) The default in this case relates to the exceptional information and consultation meeting under paragraph 8 of the schedule. The meeting was about proposals for up to 350 job cuts in the employer’s Financial Year 2020.

    152) There is no dispute that the financial year had ended on 31 October 2020. Ms Ellerker told the panel that that meant there were no longer any proposals which had been the subject of the May 2020 meeting. Mr Sack acknowledged that but contended that it would “still be useful” for the EWC to have the information it had requested in April and May 2020, but modified for the passage of time. Mr Hopper contended that as there were no longer any proposals, there was no longer anything to which an order could relate.

    153) The panel has concluded that no formal order should be made, when the proposals to which the complaint relates no longer exist. However, the panel informally recommends that the employer provide to the EWC at the annual paragraph 7 information and consultation meeting a report about the job cuts giving the information about them set out at paragraph 146 above. ↩

  3. EWC/20 (2020), paragraph 75. ↩

  4. See note 2 above. ↩

  5. As above. ↩

  6. See note 2 above. ↩

  7. The Employer referred to the following words in paragraph 70 of the Panel’s decision of 5 March 2021:

    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. ↩

  8. EWC/34 (2020). ↩

  9. Above note 3. ↩

  10. The Employer referred to paragraph 67 of the CAC’s decision of 5 March 2021 which stated that the precise information to be provided to a European Works Council “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”. ↩

  11. In accordance with the principle of autonomy of the parties, it is for the representatives of employees and the management of the undertaking or the group’s controlling undertaking to determine by agreement the nature, composition, the function, mode of operation, procedures and financial resources of European Works Councils or other information and consultation procedures so as to suit their own particular circumstances. ↩

  12. UKEAT/0096/18/DA at [42]. ↩

  13. See note 8 above. ↩

  14. Case C-349/01. ↩

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