ICE Regulations – meaning of ‘undertaking’

Thanks to Sian McKinley of Cloisters for preparing this case summary

Does an undertaking have to be a legal entity for the purposes of the Information and Consultation of Employees Regulations 2004?

Yes, held the EAT in Moyer Lee and others v Cofely Workplace Ltd.

“Undertaking” means a legal entity, namely the employer. There cannot be more than one undertaking within a single employer.

Pursuant to the Information and Consultation of Employees Regulations 2004, the Appellants made a request 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.

Langstaff P. 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 CJEU was refused.