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Request for Information and Consultation Agreement from 28 employees fails

06 July 2015 #Employment

The EAT has upheld a decision of the Central Arbitration Committee that for the purposes of the Information and Consultation of Employees Regulations 2004 (The ICE Regulations) an undertaking has to be a legal entity. “Undertaking” means a legal entity, namely the employer. There cannot be more than one undertaking within a single employer (Moyer Lee and others v Cofely Workplace Ltd).

It is very rare for cases under the ICE Regulations to come up.

The employee Appellants made a request under the ICE Regulations that their employer negotiate an agreement in respect of information and consultation of employees. To be valid, a request must be made by at least 10% of the employees in the undertaking. The Appellants comprised 28 employees (13%) of 210 employees allocated to a specific contract. The Respondent had 9,200 employees in total, of which the Appellants comprised 0.3%.

The Appellants argued that an undertaking did not have to be the employer and instead could constitute a distinct group of employees within the employer’s organisation. Any other interpretation, they argued, would lead to employees in large multi-site corporations, being deprived of any meaningful protection.

The CAC did not agree and held:

  •  The Regulations envisage 'undertaking' as a legal entity capable of being the employer of employees serving it under a contract of employment.
  • The distinction between undertaking and establishment in the Directive would lack meaning if a separate grouping of employees could constitute an undertaking.

The EAT found that on the facts as found by the CAC Panel, the  appeal could not succeed. A reference to European Court of Justice was refused.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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