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The European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009

Type Statutory-Instrument

Publication 2009-09-09

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 9th September 2009

Laid before Parliament - -: 10th September 2009

Coming into force: 1st October 2009

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to the creation, operation, regulation or dissolution of companies and other forms of business organisation and measures relating to employment rights and duties .

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 2(2) of that Act:

PART 1 — INTRODUCTORY PROVISIONS

Citation, commencement and extent

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(1) These Regulations may be cited as the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009.

(2) These Regulations come into force on 1st October 2009.

(3) These Regulations extend to the whole of Great Britain.

EC Directive and EC Regulation

2

(1) In these Regulations—

“the EC Directive” means Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European Company with regard to the involvement of employees ;

“the EC Regulation” means Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company .

(2) References in these Regulations to numbered Articles are, unless otherwise specified, references to Articles in the EC Regulation.

Interpretation

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(1) In these Regulations—

“Appeal Tribunal” means the Employment Appeal Tribunal;

“CAC” means the Central Arbitration Committee;

“dismissed” and “dismissal”, in relation to an employee, have the same meaning as in Part 10 of the Employment Rights Act 1996 ;

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

“employee involvement agreement” means— an agreement reached before IP completion day between the special negotiating body and the competent organs of the participating companies which governs the arrangements for the involvement of employees within the UK Societas,an agreement reached before or after IP completion day between the special negotiating body and the competent organs of the participating companies which governs the arrangements for the involvement of employees within the SE,an agreement reached after IP completion day following a special negotiating body having been reconvened under regulation 17 of these Regulations, which governs the arrangements for the involvement of employees within the UK Societas;

“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 employees of their employer who are elected or appointed as employee representatives 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;

“information and consultation representatives” means representatives elected or appointed to act pursuant to information and consultation procedures established in an employee involvement agreement instead of a representative body;

“Relevant State” means an EEA State or the United Kingdom;

“representative body” means the persons elected or appointed under the employee involvement agreement or under the standard rules on employee involvement;

“SE” means a European Public Limited-Liability Company (or Societas Europaea) within the meaning of the EC Regulation, as it has effect in EU law as amended from time to time;

“standard rules on employee involvement” means— in respect of a UK Societas the rules on employee involvement which apply by virtue of regulation 19, as it had effect immediately before IP completion day,in respect of an SE the rules laid down by the EEA State in which it has its registered office;

“UK employee” means an employee employed to work in the United Kingdom;

“UK Societas” means a European Public Limited-Liability Company (or Societas Europaea) within the meaning of the EC Regulation, as it had effect immediately before IP completion day, which on IP completion day converted to a United Kingdom Societas within the meaning of the EC Regulation.

(2) In these Regulations the following expressions have the meaning given by Article 2 of the EC Directive , subject to the stated modifications—

“participating companies”,

“subsidiary”,

“special negotiating body”,

“involvement of employees”,

“information”, read as if— for “Member State” there were substituted “Relevant State”,after each occurrence of “SE” there were inserted “or the UK Societas”

“consultation , read as if after each occurrence of “SE” there were inserted “or the UK Societas”,

and references to a “concerned subsidiary” or a “concerned establishment” are to be construed in accordance with the definition of “concerned subsidiary or establishment” in the EC Directive.

(2A) Where an employee involvement agreement was reached before IP completion day for a UK Societas, or where the standard rules on employee involvement apply in respect of that UK Societas, on and after IP completion day any reference to an “EEA State” in that agreement or those rules, insofar as they apply to that UK Societas, must, where appropriate, be read as if they were to “an EEA State and the United Kingdom".

(3) Except as otherwise provided, words and expressions used in the EC Regulation or the EC Directive have the same meaning in these Regulations as they have in that Regulation or Directive.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Application of these Regulations

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(1) These Regulations apply in respect of a UK Societas.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Parts 6 to 9 also apply (regardless of where the registered office of the SE is, or is intended to be situated) if any of the following is registered or, as the case may be, situated in Great Britain—

(a) a participating company, its concerned subsidiaries or establishments;

(b) a subsidiary of an SE;

(d) an employee of an SE or a representative of such an employee.

PART 2 — PARTICIPATING COMPANIES AND THE SPECIAL NEGOTIATING BODY

Duty on participating company to provide information

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Complaint of failure to provide information

6

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Function of the special negotiating body

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Composition of the special negotiating body

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Complaint about establishment of special negotiating body

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PART 3 — ELECTION OR APPOINTMENT OF UK MEMBERS OF THE SPECIAL NEGOTIATING BODY

Ballot arrangements

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Conduct of the ballot

11

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Appointment of UK members by a consultative committee

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Representation of employees

13

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PART 4 — NEGOTIATION OF THE EMPLOYEE INVOLVEMENT AGREEMENT

Negotiations to reach an employee involvement agreement

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The employee involvement agreement

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Decisions of the special negotiating body

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Decision not to open, or to terminate, negotiations

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(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Any decision made under paragraph (1) has the following effects—

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

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

(c) a special negotiating body is to be reconvened only if a request that meets the conditions in paragraph (4) is made by employees or employees' representatives.

(4) The conditions are that the request is made—

(a) in writing;

(b) by at least 10% of the employees of the UK Societas and its subsidiaries, or by employees' representatives representing at least that percentage of those employees;

(c) no earlier than two years after the decision made under paragraph (1) was or should have been published in accordance with regulation 16(4) unless—

(i) the special negotiating body, and

(ii) the competent organs of ... the UK Societas,

agree to the special negotiating body being reconvened earlier;

(d) references in this regulation to paragraph (1) and regulation 16(4) are to those provisions in these Regulations, as they had effect at the time of that decision and publication.

Complaint about decisions of special negotiating body

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PART 5 — STANDARD RULES ON EMPLOYEE INVOLVEMENT

Standard rules on employee involvement

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PART 6 — COMPLIANCE AND ENFORCEMENT

Disputes about the operation of an employee involvement agreement or the standard rules on employee involvement

20

(1) Where—

(a) an employee involvement agreement has been agreed, or

(b) the standard rules on employee involvement apply,

a complaint may be presented to the CAC by a relevant applicant who considers that the competent organ of a participating company , the SE or the UK Societas has failed to comply with the terms of the employee involvement agreement or, as the case may be, one or more of the standard information and consultation provisions.

(2) A complaint brought under paragraph (1) must be brought within the period of 3 months commencing with—

(a) the date of the alleged failure, or

(b) where the failure takes place over a period, the last day of that period.

(3) In this regulation—

“failure” means an act or omission;

“relevant applicant” means—in a case where a representative body has been appointed or elected, a member of that body;in a case where no representative body has been elected or appointed, an information and consultation representative or an employee of the SE or the UK Societas.

(4) Where it finds the complaint well-founded, the CAC—

(a) must make a declaration to that effect, and

(b) may make an order requiring the SE or the UK Societas to take such steps as are necessary to comply with the terms of the employee involvement agreement or, as the case may be, the standard rules on employee involvement.

(5) An order made under paragraph (4) must specify—

(a) the steps which the SE or the UK Societas is required to take;

(b) the date of the failure;

(6) If the CAC makes a declaration under paragraph (4), the relevant applicant may, within the period of three months beginning with the day on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.

(7) Where such an application is made, the Appeal Tribunal must issue a written penalty notice to the SE or the UK Societas requiring it to pay a penalty to the Secretary of State in respect of the failure, unless the Appeal Tribunal is satisfied, on hearing representations from the SE or the UK Societas,—

(a) that the failure resulted from a reason beyond its control, or

(b) that it has some other reasonable excuse for its failure.

(8) Regulation 21 applies in respect of a penalty notice issued under this regulation.

(9) No order of the CAC under this regulation has the effect of suspending or altering the effect of any act done or of any agreement made by the participating company , the SE or the UK Societas.

Penalties

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(1) A penalty notice issued under regulation 20 must specify—

(a) the amount of the penalty which is payable;

(b) the date before which the penalty must be paid;

(2) No penalty set by the Appeal Tribunal under this regulation may exceed £75,000.

(3) When setting the amount of the penalty, the Appeal Tribunal must take into account—

(a) the gravity of the failure;

(b) the period of time over which the failure occurred;

(d) the number of employees affected by the failure;

(e) the number of employees employed by the undertaking.

(4) The date specified under paragraph (1)(b) must not be earlier than the end of the period within which an appeal against a decision or order made by the CAC under regulation 20 may be made.

(5) If the specified date in a penalty notice has passed and —

(a) the period during which an appeal may be made has expired without an appeal having been made, or

(b) such an appeal has been made and determined,

the Secretary of State may recover from the SE or the UK Societas, as a civil debt due to the Secretary of State, any amount payable under the penalty notice which remains outstanding.

(6) The making of an appeal suspends the effect of the penalty notice.

(7) Any sums received by the Secretary of State under regulation 20 or this regulation must be paid into the Consolidated Fund.

Misuse of procedures

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(1) If an employees' representative, or an employee for whom there is no such representative, believes that a participating company , an SE or a UK Societas is misusing or intending to misuse the SE or the UK Societas or the powers in these Regulations for the purpose of—

(a) depriving the employees of that participating company or of any of its concerned subsidiaries or, as the case may be, of the SE or the UK Societas or of any of their subsidiaries of their rights to employee involvement, or

(b) withholding rights from any of the employees referred to in sub-paragraph (a),

the representative or, as the case may be, the employee may make a complaint to the CAC.

(2) Where a complaint is made to the CAC under paragraph (1)—

(a) before registration of the SE, or

(b) within the period of 12 months following the date of its registration as an SE (including registration as an SE which subsequently converted to a UK Societas on IP completion day),

the CAC must uphold the complaint unless the respondent proves that it did not misuse or intend to misuse the SE or the powers in these Regulations for a purpose specified in sub-paragraph (a) or (b) of paragraph (1).

(3) If it finds the complaint to be well founded, the CAC—

(a) must make a declaration to that effect, and

(b) may make an order requiring the participating company or the SE or the UK Societas, as the case may be, to take such action as is specified in the order to ensure that the employees referred to in paragraph (1)(a) are not deprived of their rights to employee involvement or that such rights are not withheld from them,

and the provisions of regulations 20(6) to (9) and 21 apply where the CAC makes a declaration or order under this paragraph as they apply where it makes a declaration or order under regulation 20(4).

Exclusivity of remedy

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The remedy for infringement of the rights conferred by these Regulations is by way of complaint to the CAC in accordance with these Regulations and not otherwise.

PART 7 — CONFIDENTIAL INFORMATION

Breach of statutory duty

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(1) Where a body which is—

(a) an SE,

(aa) a UK Societas,

(b) a subsidiary of an SE or a UK Societas,

(d) a concerned subsidiary,

entrusts a person, pursuant to the provisions of these Regulations, with any information or document on terms requiring it to be held in confidence, the person must not disclose that information or document except in accordance with the terms on which it was disclosed to the person.

(2) In this regulation a person referred to in paragraph (1) to whom information or a document is entrusted is referred to as a “recipient”.

(3) Where paragraph (1) applies—

(a) the obligation to comply with that paragraph is a duty owed to the body that disclosed the information or document to the recipient, and

(b) a breach of the duty is actionable accordingly (subject to the defences and other incidents applying to actions for breach of statutory duty).

(4) Paragraph (3) does not affect—

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