Guidance

Making an application or complaint

Below outlines the CAC’s jurisdiction for The Transnational Information and Consultation of Employees Regulations.

• From: Central Arbitration Committee
• Published: 7 April 2021

Applies to England, Scotland and Wales

European Works Councils

In relation to some complaints and applications (as indicated in the table below), from 1 January 2021 the CAC will only have jurisdiction if the negotiation process for the establishment of an EWC or I&C procedure was commenced, but not concluded, before 1 January 2021.
For this purpose, the negotiation process is commenced where:

• a valid request to negotiate is made; or

• the central management initiates the process in the absence of a valid request. The negotiation process is concluded where:

• the SNB decides not to negotiate with management or to terminate the process;

• central management and the SNB reach a written agreement for an EWC or I&C procedure; or

• An EWC is established in accordance with the default provisions.

Note that any complaint or application presented to the CAC under TICER before 1 January 2021 may continue to be determined on and after that date.

1) Entitlement to information

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Regulation 7	Regulation 8
An employee or an employees’ representative may request information from the management of an establishment, or of an undertaking, in the United Kingdom whether, an undertaking is part of a Community-scale group of undertaking. The management must provide the average number of employees employed in the UK and in each of the other Member States in the last two years. This information to include information relating to agency workers, if any. Management must also obtain and provide information on the structure of the undertaking and its workforce.	An employee or employees’ representative may present a complaint to the CAC that the recipient has either failed to provide or failed to obtain and provide the information or it is false or incomplete. A complainant must wait a month from the date of the request before lodging a complaint with the CAC.	CAC can specify the information to be disclosed. CAC may also declare, if it has received sufficient information in considering the claim, that the establishment is part of a Community-scale undertaking.	The CAC has jurisdiction only if the request for information was made prior to 1 January 2021.

2) Request to establish an EWC or I & C procedure

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Regulation 9	Regulation 10
Central Management should initiate negotiations for the establishment of an EWC or an I&C procedure if a valid request is made. A valid request consists of a single request (or a number of separate requests taken together) made by at least 100 employees, or employees’ representative representing that number in at least two different Member states.	Central management may apply to the CAC if it considers: a) the employer is not a Community-scale undertaking; and or b) a valid request has not been made, including whether sufficient numbers have requested the establishment of an EWC. The CAC can only consider an application: •if it is made before central management take any steps to initiate negotiations. c) That it is under no obligation, for any reason to initiate negotiations. Such a complaint must be lodged within 3 months of the date of the valid request being made.	CAC can issue a declaration as to whether a valid request had been submitted.	The CAC has jurisdiction only if the request to establish an EWC or I&C procedure was made prior to 1 January 2021

3) Special Negotiating Body (SNB)

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Regulations 11-15	Regulations 13(4) and 15(7)
The SNB and central management determines the scope, composition, functions and term of office an EWC or the arrangements for implementing an I&C procedure. The SNB should consist of one member for each 10% (or fraction thereof) which the employees represent of the total number of employees employed in the Member States. The UK members of the SB should be elected by a ballot, arranged by UK management, of the UK employees. The employees’ representatives should be consulted about the proposed arrangements for the ballot. The final arrangements for the ballot must be published in such a manner to bring them to the attention of, so far as is reasonably practicable, the UK employees and UK employees’ representatives. If there is an existing consultative committee, it may nominate its members for the SNB (subject to several conditions).	Employees’ representative may complain to the CAC that the proposed arrangements are defective e.g. the number of seats of the SNB allocated to UK employees is incorrect. UK management or an employee or employees’ representative may make a claim to the CAC that any nominations are invalid.	CAC may issue a declaration stipulating the modifications necessary to ensure the arrangement comply with regulations. CAC must declare whether any nominations from the consultative committee are valid and whether all the UK members of the SNB should be elected by ballot.	The CAC has jurisdiction only if the negotiation process for the establishment of an EWC or I&C procedure was commenced, but not concluded, before 1 January 2021.

4) Negotiating the establishment of the EWC or I & C procedure

TICE Regulation	CAC Involvement	CAC Decision CAC involvement after Brexit (from 1 January 2021)
Regulations 16-18	Regulation 20
Central management and SNB under a duty to negotiate with a view to reaching a written agreement. If no agreement is reached within 3 years of the valid request; or if central management refuses to commence negotiations within 6 months of the valid request; or if the parties so agree then the subsidiary requirements set out in the Schedule apply.	A complaint may be made to the CAC that because of a failure of central management the EWC or I&C procedure has not been established at all or has not been established fully in accordance with the terms of the agreement reached or, as the case may be, in accordance with the provisions of the Schedule.	The CAC may make an order to take any steps necessary to comply with the Regulations. This may include the impositions of the statutory EWC contained in the Schedule.	The CAC continues to have jurisdiction.

5) Disputes about operation of the EWC or I & C procedure

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Regulations 17-18	Regulation 21
An EWC or I&C procedure is established under regulation 17 or an EWC is established by virtue of regulation 18.	A complaint may be made to the CAC that the terms of the agreement under regulation 17 or the provisions of the Schedule have not been complied with or information has not been provided in accordance with regulation 18a or information has been provided but is false or incomplete.	The CAC may issue orders requiring the defaulter to comply with the terms of the agreement or the provisions of the Schedule. If the defaulter is the central management and application can be made to the EAT within 3 months of the date of the CAC decision for a penalty notice to be issued.	The CAC continues to have jurisdiction.

6) Disputes about failures of management

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Regulations 16 &-19	Regulation 21A
Central management must convene a meeting with the SNB with a view to concluding an agreement. Before and after any meeting with central management the members of the SNB are entitled to meet without central management or its representatives being present (Regulation 16(1A)). Central management shall provide members of the EWC with the means required to fulfil their duty to represent collectively the interests of the employees (Regulation 19A). Central management shall provide an employee who is either a member of the SNB or a member of the EWC with the means required to undertake training in order to discharge their duty (Regulation 19B). No arrangements have been made to link information and consultation of an EWC with information and consultation of national employee representation bodies and there are circumstances likely to lead substantial changes in work organisation or contractual relations. (Regulation 19E)	A complaint may be made to the CAC that the SNB has been unable to meet in accordance with regulation 16(1A). A complaint may be made to the CAC that members of the EWC have not been provided with the means required. A complaint may be made to the CAC that the training has not been provided. A complaint may be made to the CAC that the EWC and national employee representation bodies have not been informed and consulted.	The CAC may issue orders requiring the defaulter to comply with the relevant regulation. A complaint must be brought to the CAC within 6 months of the date of the alleged failure. If the CAC finds the complaint well-founded an application can be made to the EAT within 3 months of the date of the CAC decision for a penalty notice to be issued.	Regarding complaints relating to the SNB or a member of the SNB, the CAC has jurisdiction only if the negotiation process for the establishment of an EWC or I&C procedure was commenced, but not concluded, before 1 January 2021. Regarding the other complaints, the CAC continues to have jurisdiction.

7) Complaints of failure to inform

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Regulation 19D - complaints of failure to inform	Regulation 19D
An employee or employee’s representative may present a complaint that the EWC has failed to inform them of the content or outcome of the information and consultation procedure or the information provided by the EWC is false or incomplete in a material particular.	A complaint may be made to the CAC.	The CAC may issue orders requiring the EWC to disclose the relevant information. However, the CAC shall not find a complaint well-founded if the failure to inform or the provision of false or incomplete information resulted from a failure by central management. A complaint under this regulation must be brought to the CAC with 6 months of the date of the alleged failure. There is no provision for an application to the EAT for a penalty notice should the CAC find the complaint well-founded.	The CAC continues to have jurisdiction.

8) Disclosure of Information

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Regulations 23-24	Regulations 23(6)-(8) Regulations 24(2)-(4)
Disclosure of information	The CAC can hear claims from central management that information they provided should be held in confidence by members of the EWC. The CAC can hear claims from central management or EWC members that the information should or should not be disclosed to the EWC as it would be prejudicial to the undertaking(s).	CAC issues declaration. CAC issues declaration.	The CAC continues to have jurisdiction.

9) Election of EWC members when the Subsidiary Requirements apply

TICE Regulation	CAC Involvement	CAC Decision	CAC involvement after Brexit (from 1 January 2021)
Paragraph 4 of the Subsidiary Requirements	Paragraph 4(3) of the Subsidiary Requirements
When the Subsidiary Requirements apply and the UK members of the EWC are to be elected by a ballot of the UK employees’ representatives on the proposed arrangements for the ballot. The final arrangements for the ballot must be published in such a manner to bring them to the attention of, so far as is reasonably practicable, the UK employees and the UK employees’ representatives.	Any UK employee or UK employees’ representative may complain to the CAC that the proposed arrangements are defective. Such complaint is to be lodged within 21 days of the arrangements being published.	CAC must issue a declaration stipulating the modifications necessary to ensure the arrangement comply with the regulations.	The CAC continues to have jurisdiction.

Published 7 April 2021