The Transnational Information and Consultation of Employees Regulations 1999

Made: 12th December 1999

Laid before Parliament: 14th December 1999

Coming into force: 15th January 2000

The Secretary of State, being a Minister designated for the purposes of section 2(2) of the European Communities Act 1972[^f00001] in relation to measures relating to the information and consultation of employees[^f00002], in exercise of the powers conferred on him by that provision, hereby makes the following Regulations:—

PART I — GENERAL

Citation, commencement and extent

1

• (1) These Regulations may be cited as the Transnational Information and Consultation of Employees Regulations 1999 and shall come into force on 15th January 2000.

• (2) These Regulations extend to Northern Ireland.

Interpretation

2

• (1) In these Regulations—

• “the 1996 Act” means the Employment Rights Act 1996[^f00003];

• “the 1996 Order” means the Employment Rights (Northern Ireland) Order 1996[^f00004]

• “ACAS” means the Advisory, Conciliation and Arbitration Service;

• “agency worker” has the meaning provided for in regulation 3 of the Agency Workers Regulations 2010;

• “Appeal Tribunal” means the Employment Appeal Tribunal;

• “CAC” means the Central Arbitration Committee;

• “central management” means—the central management of a Community-scale undertaking, orin the case of a Community-scale group of undertakings, the central management of the controlling undertaking,or, where appropriate, the central management of an undertaking or group of undertakings that could be or is claimed to be a Community-scale undertaking or Community-scale group of undertakings;

• “Community-scale undertaking” means an undertaking with at least 1000 employees within the Relevant States and at least 150 employees in each of at least two Relevant States;

• “Community-scale group of undertakings” means a group of undertakings which has—at least 1000 employees within the Relevant States,at least two group undertakings in different Relevant States, andat least one group undertaking with at least 150 employees in one Relevant State and at least one other group undertaking with at least 150 employees in another Relevant State;

• “consultation” means the exchange of views and establishment of dialogue between members of a European Works Council in the context of a European Works Council, or information and consultation representatives in the context of an information and consultation procedure, and central management or any more appropriate level of management;

• “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing;

• “controlled undertaking” has the meaning assigned to it by regulation 3;

• “controlling undertaking” has the meaning assigned to it by regulation 3;

• “employee” means an individual who has entered into or works under a contract of employment and in Part VII and regulation 41 includes, where the employment has ceased, an individual who worked under a contract of employment;

• “employees' representatives” means—if the employees are of a description in respect of which an independent trade union is recognised by their employer for the purpose of collective bargaining, representatives of the trade union who normally take part as negotiators in the collective bargaining process, andany other employee representatives elected or appointed by employees to positions in which they are expected to receive, on behalf of the employees, information—which is relevant to the terms and conditions of employment of the employees, orabout the activities of the undertaking which may significantly affect the interests of the employees, but excluding representatives who are expected to receive information relevant only to a specific aspect of the terms and conditions or interests of the employees, such as health and safety or collective redundancies;

• “European Works Council” means the council, established—before exit day under and in accordance with regulation 17, or regulation 18 and the provisions of the Schedule, orwhere appropriate, under and in accordance with the provisions of the law or practice of a Relevant State other than the United Kingdom which are designed to give effect to Article 6 of, or Article 7 of and the Annex to, the Transnational Information and Consultation Directive,with the purpose of informing and consulting employees;

• “Extension Directive” means Council Directive 97/74/EC of 15 December l997[^f00005] extending, to the United Kingdom, the Transnational Information and Consultation Directive;

• “group of undertakings” means a controlling undertaking and its controlled undertakings;

• “group undertaking” means an undertaking which is part of a Community-scale group of undertakings;

• “hirer” has the meaning provided for in regulation 2 of the Agency Workers Regulations 2010;

• “independent trade union” has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992[^f00006] or in Northern Ireland the 1996 Order;

• “information and consultation procedure” means one or more information and consultation procedures agreed under—regulation 17 before exit day, orwhere appropriate, the provisions of the law or practice of a Relevant State other than the United Kingdom which are designed to give effect to Article 6(3) of the Transnational Information and Consultation Directive;

• “information and consultation representative” means a person who represents employees in the context of an information and consultation procedure;

• “local management” means the management of one or more establishments in a Community-scale undertaking or of one or more undertakings in a Community-scale group of undertakings which is not the central management;

• ...

• “national employee representation body” means—where the employees are of a description in respect of which an independent trade union is recognised by their employer for the purpose of collective bargaining, that trade union, anda body which has not been established with information and consultation on transnational matters as its main purpose, to which any employee representatives are elected or appointed by employees, as a result of which they hold positions in which they are expected to receive, on behalf of the employees, information—which is relevant to the terms and conditions of employment of the employees, orabout the activities of the undertaking which may significantly affect the interests of the employees,(including information relevant only to a specific aspect of the terms and conditions or interests of the employees, such as health and safety or collective redundancies);

• “relevant date” has the meaning given to it in regulation 6(4);

• “Relevant State” means―a state which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993; andthe United Kingdom;

• “special negotiating body” means the body established before exit day for the purposes of negotiating with central management an agreement for a European Works Council or an information and consultation procedure;

• “suitable information relating to the use of agency workers” means—the number of agency workers working temporarily for and under the supervision and direction of the undertaking;the parts of the undertaking in which those agency workers are working; andthe type of work those agency workers are carrying out;

• “temporary work agency” has the meaning provided for in regulation 4 of the Agency Workers Regulations 2010;

• “Transnational Information and Consultation Directive” means Council Directive 94/45/EC of 22 September 1994[^f00008] on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees;

• “UK management” means the management which before exit day was, or would have been, subject to the obligation in regulation 13(2) or paragraph 4(1) of the Schedule, being either the central management in the United Kingdom or the local management in the United Kingdom;

• ...

• (2) To the extent that the Transnational Information and Consultation Directive and the Extension Directive permit the establishment of more than one European Works Council in a Community-scale undertaking or Community-scale group of undertakings, these Regulations shall be construed accordingly.

• (3) In paragraphs (1) and (4) of this regulation and in regulation 6 and paragraphs 3 to 5 of the Schedule, references to “UK employees” are references to employees who are employed in the United Kingdom by a Community-scale undertaking or Community-scale group of undertakings.

• (4) In ... paragraphs 3 and 4 of the Schedule, references to “UK employees' representatives” are references to employees' representatives who represent UK employees.

• (4A) In paragraph (1) in the definition of “national employee representation body” and in regulation 18A, matters are transnational where they concern—

• (a) the Community-scale undertaking or Community-scale group of undertakings as a whole, or

• (b) at least two undertakings or establishments of the Community-scale undertaking or Community-scale group of undertakings situated in two different Relevant States.

• (4B) The arrangements to link information and consultation of a European Works Council with information and consultation of the national employee representation bodies—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) in regulation 19E are subject to the limitation in regulation 18A(7); and

• (c) in regulation 19E shall not affect the main purpose for which a national employee representation body was established.

• (4C) An agency worker who has a contract within regulation 3(1)(b) of the Agency Workers Regulations 2010 (contract with the temporary work agency) with a temporary work agency which is a Community-scale undertaking or Community-scale group of undertakings at the relevant date, which is not a contract of employment, shall be treated as being employed by that agency for the duration of their assignment with a hirer for the purposes of—

• (a) calculating the number of employees within the definitions of “Community-scale undertaking” and “Community-scale group of undertakings” in this regulation; and

• (b) the means of calculating the number of employees in regulation 6.

• (5) In the absence of a definition in these Regulations, words and expressions used in particular regulations and particular paragraphs of the Schedule to these Regulations which are also used in the provisions of the Transnational Information and Consultation Directive or the Extension Directive to which they were designed to give effect have the same meaning as they have in those provisions.

Controlled and Controlling Undertaking

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• (1) In these Regulations “controlling undertaking” means an undertaking which can exercise a dominant influence over another undertaking by virtue, for example, of ownership, financial participation or the rules which govern it and “controlled undertaking” means an undertaking over which such a dominant influence can be exercised.

• (2) The ability of an undertaking to exercise a dominant influence over another undertaking shall be presumed, unless the contrary is proved, when in relation to another undertaking it directly or indirectly—

• (a) can appoint more than half of the members of that undertaking’s administrative, management or supervisory body;

• (b) controls a majority of the votes attached to that undertaking’s issued share capital; or

• (c) holds a majority of that undertaking’s subscribed capital.

• (3) In applying the criteria in paragraph (2), a controlling undertaking’s rights as regards voting and appointment shall include—

• (a) the rights of its other controlled undertakings; and

• (b) the rights of any person or body acting in his or its own name but on behalf of the controlling undertaking or of any other of the controlling undertaking’s controlled undertakings.

• (4) Notwithstanding paragraphs (1) and (2) above an undertaking shall not be a controlling undertaking of another undertaking in which it has holdings where the first undertaking is a company described in Article 3(5)(a) or (c) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (whether or not the Regulation applies to that company).

• (5) A dominant influence shall not be presumed to be exercised solely by virtue of the fact that an office holder is exercising functions, according to the law of a Relevant State, relating to liquidation, winding-up, insolvency, cessation of payments, compositions of creditors or analogous proceedings.

• (6) Where the law governing an undertaking is the law of a Relevant State, the law applicable in order to determine whether an undertaking is a controlling undertaking shall be the law of that Relevant State.

• (7) Where the law governing an undertaking is not that of a Relevant State the law applicable shall be the law of the Relevant State within whose territory—

• (a) the representative of the undertaking is situated; or

• (b) in the absence of such a representative, the management of the group undertaking which employs the greatest number of employees is situated.

• (8) If two or more undertakings (whether situated in the same or in different Relevant States) meet one or more of the criteria in paragraph (2) in relation to another undertaking, the criteria shall be applied in the order listed in relation to each of the first-mentioned undertakings and that which meets the criterion that is highest in the order listed shall be presumed, unless the contrary is proved, to exercise a dominant influence over the undertaking in question.

Circumstances in which provisions of these Regulations apply

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• (1) Subject to paragraph (2) the provisions of regulations 17 to 41 and of regulation 46 shall apply in relation to a Community-scale undertaking or Community-scale group of undertakings only where, in accordance with regulation 5, the central management is situated in the United Kingdom.

• (2) The following regulations shall apply in relation to a Community-scale undertaking or Community-scale group of undertakings whether or not the central management is situated in the United Kingdom—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) regulation 18 to the extent it applies paragraphs 3 to 5 of the Schedule (UK members of the European Works Council);

• (d) regulations 23(1) to (5) (breach of statutory duty);

• (e) regulations 25 to 33 (protections for members of a European Works Council, etc.);

• (f) regulations 34 to 39 (enforcement bodies) to the extent they relate to applications made or complaints presented under any of the other regulations referred to in this paragraph;

• (g) regulations 40 and 41 (restrictions on contracting out).

The central management

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• (1) This regulation applies where—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) the central management is not situated in a Relevant State and the representative agent of the central management (to be designated if necessary) is situated in the United Kingdom; or

• (c) neither the central management nor the representative agent (whether or not as a result of being designated) is situated in a Relevant State and—

• (i) in the case of a Community-scale undertaking, there are employed in an establishment, which is situated in the United Kingdom, more employees than are employed in any other establishment which is situated in a Relevant State, or

• (ii) in the case of a Community-scale group of undertakings, there are employed in a group undertaking, which is situated in the United Kingdom, more employees than are employed in any other group undertaking which is situated in a Relevant State,

....

• (2) Where this regulation applies, the central management shall be treated, for the purposes of these Regulations, as being situated in the United Kingdom and—

• (a) the representative agent referred to in paragraph (1)(b); or

• (b) the management of the establishment referred to in paragraph (1)(c)(i) or of the group undertaking, referred to in paragraph (1)(c)(ii),

shall be treated, respectively, as being the central management.

PART II — EMPLOYEE NUMBERS ...

Calculation of numbers of employees

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• (1) For the purposes of determining whether an undertaking is a Community-scale undertaking or a group of undertakings is a Community-scale group of undertakings, the number of employees employed by the undertaking, or group of undertakings, shall be determined—

• (a) in the case of UK employees, by ascertaining the average number of employees employed during a two year period, calculated in accordance with paragraph (2) below;

• (b) in the case of employees in another Relevant State, by ascertaining the average number of employees employed during a two year period, calculated in accordance with the provisions of the law or practice of that Relevant State which is designed to give effect to the Transnational Information and Consultation Directive.

• (2) Subject to paragraph (3), the average number of UK employees is to be ascertained by—

• (a) determining the number of UK employees in each month in the two year period preceding the relevant date (whether they were employed throughout the month or not);

• (b) adding together all of the monthly numbers, and

dividing the number so determined by 24.

• (3) For the purposes of the calculation in paragraph 2(a) if for the whole of a month within the two year period an employee works under a contract by virtue of which he would have worked for 75 hours or less in that month—

• (a) were the month to have contained 21 working days;

• (b) were the employee to have had no absences from work; and