except where the special negotiating body has taken the decision referred to in regulation 17 of the European Public Limited-Liability Company (Employee Involvement) (Great Britain) Regulations 2009 (decision not to open, or to terminate, negotiations) (S.I. 2009/2401) or, as the case may be, regulation 17 of the European Public Limited-Liability Company (Employee Involvement) (Northern Ireland) Regulations 2009 (S.I. 2009/2402).

(2) In this regulation “UK Societas” means a United Kingdom Societas within the meaning of Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company.

46B

(1) These regulations do not apply to an SCE that is—

(a) a Community-scale undertaking, or

(b) a controlling undertaking of a Community-scale group of undertakings,

except where the special negotiating body has taken the decision referred to in regulation 19 of, or paragraph 13 of Schedule 1 to, the European Cooperative Society (Involvement of Employees) Regulations 2006 (decision not to open, or to terminate, negotiations).

(2) In this regulation an “SCE” means a European Cooperative Society established in accordance with the European Cooperative Society Regulations 2006.

Information and consultation

18A

(1) This regulation applies where—

(a) a European Works Council or information and consultation procedure has been established before exit day under regulation 17; or

(b) a European Works Council has been established before exit day by virtue of regulation 18.

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

(a) members of a European Works Council; or

(b) information and consultation representatives,

as the case may be, 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

(4) The central management, or any more appropriate level of management, shall consult with—

(a) members of a European Works Council; or

(b) information and consultation representatives,

as the case may be, in accordance with paragraph (5).

(5) The content of the consultation, the time when, and manner in which it takes place, must be such as to enable a European Works Council or information and consultation representatives to express an opinion on the basis of the information provided to them.

(6) The opinion referred to in paragraph (5) shall be provided within a reasonable time after the information is provided to the European Works Council or the information and consultation representatives and, having regard to the responsibilities of management to take decisions effectively, may be taken into account by the central management or any more appropriate level of management.

(7) The information provided to the members of a European Works Council or information and consultation representatives, and the consultation of the members of a European Works Council or information and consultation representatives shall be limited to transnational matters.

(8) Where information as to the employment situation in the Community-scale undertaking or, as the case may be, the Community-scale group of undertakings, is disclosed by the central management or any more appropriate level of management, this shall include suitable information relating to the use of agency workers (if any).

Cooperation

Means required

19A

(1) Subject to paragraph (2), the central management shall provide the members of a European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings under these Regulations.

(2) The obligation on central management in paragraph (1) does not include an obligation to provide a member of a European Works Council with—

(a) time off during working hours to perform functions as such a member, or remuneration for such time off (as required by regulations 25 and 26);

(b) the means required to undertake training (as required by regulation 19B); or

(c) time off during working hours to undertake training, or remuneration for such time off (as required by regulations 25 and 26).

Right to training for members of a European Works Council, etc

19B

(1) Subject to paragraph (2), the central management shall provide an employee who is—

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

(b) a member of a European Works Council,

with the means required to undertaking training to the extent necessary for the exercise of the employee’s representative duties.

(2) The obligation on central management referred to in paragraph (1) does not include an obligation to provide time off during working hours to undertaking training, or remuneration for such time off (as required by regulations 25 and 26).

European Works Council to inform, etc

19C

Subject to regulation 23, a European Works Council shall inform—

(a) the employees’ representatives in the establishments of a Community-scale undertaking or in the undertakings of a Community-scale group of undertakings; or

(b) to the extent that any employees are not represented by employees’ representatives, the employees themselves,

of the content and outcome of the information and consultation procedure carried out in accordance with these Regulations.

Complaint of failure to inform

19D

(1) An employee or employees’ representative may present a complaint to the CAC that—

(a) the European Works Council has failed to inform them under regulation 19C of the content or outcome of the information and consultation procedure; or

(b) the information which has been provided by the European Works Council is false or incomplete in a material particular.

(2) Where the CAC finds the complaint well-founded it shall make an order requiring the European Works Council to disclose information to the complainant which order shall specify—

(a) the information in respect of which the CAC finds that the complaint is well-founded and which is to be disclosed to the complainant;

(b) the date (or if more than one, the earliest date) on which the European Works Council refused or failed to disclose information, or disclosed false or incomplete information; and

(c) a date (not less than one week from the date of the order) by which the European Works Council must disclose the information specified in the order.

(3) The CAC shall not find a complaint under this regulation well-founded where it considers that the failure to inform, or the provision of false or incomplete information, resulted from a failure by the central management to provide the members of the European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings (as required by regulation 19A).

(4) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure to inform, or the provision of false or incomplete information.

Links between information and consultation of European Works Council and national employee representation bodies

19E

(1) Paragraph (2) applies where—

(a) no arrangements to link information and consultation of a European Works Council with information and consultation of national employee representation bodies were made before exit day under regulation 17(4)(c), and

(b) there are circumstances likely to lead to substantial changes in work organisation or contractual relations.

(2) Subject to regulation 2(4B), the—

(a) management of every undertaking belonging to the Community-scale group of undertakings;

(b) central management; or

(c) representative agent or the management treated as the central management of the Community-scale undertaking or Community-scale group of undertakings within the meaning of regulation 5(2),

as the case may be, shall ensure that the procedures for informing and consulting the European Works Council and the national employee representation bodies in relation to the substantial changes in work organisation or contractual relations referred to in sub-paragraph (b) of paragraph (1) are linked so as to begin within a reasonable time of each other.

(3) The national employee representation bodies referred to in paragraph (2) are those bodies which are entitled, whether by law, agreement or custom and practice, to be informed and consulted on the substantial changes in work organisation or contractual relations referred to in sub-paragraph (b) of paragraph (1).

Adaptation

19F

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Disputes about failures of management

21A

(1) A complaint may be presented to the CAC by a relevant applicant who considers that—

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

(b) because of the failure of a defaulter, the members of the European Works Council have not been provided with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings in accordance with regulation 19A;

(c) because of the failure of a defaulter, ... a member of the European Works Council has not been provided with the means required to undertake the training referred to in regulation 19B; or

(d) regulation 19E(2) applies and that, because of the failure of a defaulter, the European Works Council and the national employee representation bodies have not been informed and consulted in accordance with that regulation.

(2) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure.

(3) 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 regulation ... 19A, 19B or 19E(2), as the case may be.

(4) An order made under paragraph (3) shall specify—

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

(b) the date of the failure; and

(5) If the CAC makes a decision under paragraph (3), the relevant applicant may, within the period of three months beginning with the date on which the decision is made, make an application to the Appeal Tribunal for a penalty notice to be issued.

(6) Where such an application is made, the Appeal Tribunal shall issue a written penalty notice to the defaulter requiring it to pay a penalty to the Secretary of State in respect of the failure.

(7) Paragraph (6) shall not apply if the Appeal Tribunal is satisfied, on hearing the representations of the defaulter, that the failure resulted from a reason beyond the defaulter’s control or that it has some other reasonable excuse for its failure.

(8) Regulation 22 shall apply to a penalty notice issued under this regulation.

(9) 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.

(10) In this regulation—

(a) “defaulter” means, as the case may be—

(i) the management of any undertaking belonging to the Community-scale group of undertakings;

(ii) the central management; or

(iii) the representative agent or the management treated as the central management of the Community-scale undertaking or Community-scale group of undertakings within the meaning of regulation 5(2);

(b) “failure” means an act or omission and a failure by the local management shall be treated as a failure by the central management;

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) for a complaint in relation to regulation 19A, a member of the European Works Council;

(iii) for a complaint in relation to regulation 19B, ... a member of the European Works Council;

(iv) for a complaint in relation to regulation 19E(2), a member of the European Works Council, a national employee representation body, an employee, or an employees’ representative.

Penalties

Agreements signed or revised on or after 5th June 2009 and before 5th June 2011

45A

(1) Where the conditions specified in paragraph (2) are satisfied, these Regulations shall apply to a Community-scale undertaking or Community-scale group of undertakings as if the amendments listed—

(a) in paragraph (3) in relation to the 2010 Regulations, and

(b) in paragraph (3A) in relation to the 2019 Regulations,

had not been made.

(2) The conditions referred to in paragraph (1) are that an agreement is in force which—

(a) establishes a European Works Council or information and consultation procedure before exit day under regulation 17 of these Regulations; and

(b) is signed or revised on or after 5th June 2009 and before 5th June 2011.

(3) The amendments referred to in paragraph (1)(a) are those made by the following provisions of the 2010 Regulations—

(a) regulation 3, in so far as it inserts the definition of “national employee representation bodies” and paragraphs (4A) and (4B) into regulation 2 of these Regulations;

(b) regulations 5 to 10;

(d) regulation 13, in so far as it inserts paragraph (1A)(b) into regulation 21 of these Regulations;

(e) regulation 14, in so far as it inserts regulation 21A(1)(b), (c) and (d) into these Regulations and makes provision for the resolution of complaints in relation to regulations 19A, 19B and 19E(2);

(f) regulation 16;

(g) regulation 23, in so far as it amends regulations 44 and 45 of these Regulations; and

(h) regulations 24 to 29.

(3A) The amendments referred to in paragraph (1)(b) are those made by paragraphs 14, 15, 20, 21(b), 27 and 28 of Schedule 2 to the 2019 Regulations.

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

(5) In this regulation—

(a) “the 2010 Regulations” means the Transnational Information and Consultation of Employees (Amendment) Regulations 2010, and

(b) “the 2019 Regulations” means the Employment Rights (Amendment) (EU Exit) Regulations 2019.

Merchant Navy

Use of agency workers

8A

Where information is to be disclosed under paragraph 7 or 8 which includes information as to the employment situation in the Community-scale undertaking or, as the case may be, the Community-scale group of undertakings, this shall include suitable information relating to the use of agency workers (if any).

Procedures

The continuing application of the subsidiary requirements

Extension of time limit to facilitate conciliation before institution of proceedings

27A

(1) In this regulation—

(a) Day A is the day on which the worker concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b) Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section.

(2) In working out when the time limit set by regulation 27(2)(a) expires the period beginning with the day after Day A and ending with Day B is not to be counted.

(3) If the time limit set by regulation 27(2)(a) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

(4) The power conferred on the employment tribunal by regulation 27(2)(b) to extend the time limit set by paragraph (2)(a) of that regulation is exercisable in relation to that time limit as extended by this regulation.

Unfair dismissal

Subsidiary provisions relating to unfair dismissal: Great Britain

Detriment

Detriment: enforcement and subsidiary provisions

Conciliation

Extension of time limit to facilitate conciliation before institution of proceedings in Northern Ireland

27B

(1) In this regulation—

(a) Day A is the day on which the worker concerned complies with the requirement in paragraph (1) of Article 20A of the Industrial Tribunals (Northern Ireland) Order 1996 (requirement to contact Labour Relations Agency before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b) Day B is the day on which the worker concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under paragraph (11) of that Article) the certificate issued under paragraph (4) of that Article.

(2) In working out when the three month time limit set by regulation 27(2)(a) expires the period beginning with the day after Day A and ending with Day B is not to be counted.

(3) If the three month time limit set by regulation 27(2)(a) would (if not extended by this paragraph) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period.

(4) The power conferred on the industrial tribunal by regulation 27(2)(b) to extend the three month time limit set by paragraph (2)(a) of that regulation is exercisable in relation to that time limit as extended by this regulation.

Unfair dismissal

Subsidiary provisions relating to unfair dismissal: Northern Ireland

Detriment

Detriment: enforcement and subsidiary provisions

Conciliation

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