Decision

Decision

Updated 23 December 2024

Applies to England, Scotland and Wales

Case Number: EWC/0044/2024

23 December 2024

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES

REGULATIONS 1999 AS AMENDED BY THE 2010 REGULATIONS

DECISION ON COMPLAINT UNDER REGULATION 21

The Parties:

The European Works Council of the British Council

and

British Council

1. Introduction

1)         On 23 May 2024 the European Works Council of the British Council (the Complainant) submitted a complaint to the Central Arbitration Committee (CAC) pursuant to the Transnational Information and Consultation of Employees Regulations 1999, as amended by the 2010 Regulations (TICER).

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to consider the case.  The Panel consisted of Ms. Laura Prince K.C., Panel Chair, and, as Members Mr. Martin Kirke and Mr. Paul Noon. The Case Manager appointed to support the Panel was Joanne Curtis.

2. General Background

3)         In June 2003 employees of the British Council requested that it establish a European Works Council (EWC). As no European Works Council agreement was reached within a three-year period, the provisions of the schedule to the TICER (as then in force) began to apply in July 2006 and the British Council established the UK EWC. The central management of the British Council is situated in the United Kingdom. The UK EWC continued to exist after 31 December 2020 and there was a requirement for the British Council to operate two EWC’s. The UK EWC, pursuant to the British Council’s obligations under TICER and a parallel European Works Council under Irish law (the Irish EWC), pursuant to its Irish branch’s obligations under the equivalent Irish legislation (TICEA).

4)         The British Council said this issue had been addressed pragmatically by Management by: (a) appointing the same team to bear responsibility for performing their obligations; (b) providing the same report to the EWCs in advance of meetings that included all information to which each EWC was entitled; (c) holding annual information and consultation meetings with the EWCs at the same time; and (d) holding exceptional information and consultation meetings with the select committee of the UK EWC and the select committee of the Irish EWC at the same time when either or both of them requested these. The British Council said that this was a practically workable approach because TICER and TICEA were very similar and that it was also in accordance with good industrial relations practice and financially prudent for the British Council as a charity because the memberships of the EWCs were almost identical. The British Council explained that were this not to be the case the same team would need to engage on separate occasions in the same dialogue on the basis of the same report with almost identical groups of employees’ representatives.

3. The complaint

5)         The Complainant submitted that the British Council (the Employer) had failed to comply with Regulation 21 of TICER (Disputes about the operation of European Works Council) regarding information and consultation in relation to a Professional Services Transformation (PST) project being carried out by the British Council. The EWC considered that, because of the failure of the central management, the provisions of the Schedule had not been complied with and regulation 18A had not been complied with, or the information which had been provided by the management under regulation 18A was false or incomplete in a material particular.

6)         In June 2022 central management began to share with the EWC information about plans for an outsourcing project involving a number of workstreams, including Finance, Procurement, HR, IT/Digital, Marketing and Estates. Over the ensuing months central management provided updates on the project including the awarding of a contract to Tata Consultancy Services. The Select Committee of the EWC requested an exceptional information and consultation meeting. The Complainant said that in view of the significance of the project and the potential implications for employees it had requested that the meeting take place in person.

7)         On 30 October 2023 central management proposed a timeline for consultation over the project which included a “consultation meeting” in the week commencing 4 December 2023. In view of the significance of the project and the potential implications for employees, the Select Committee requested that the meeting be held in-person and made clear throughout that it did not believe an online meeting was appropriate for consultation on the PST project. The Complainant said that Management refused to hold an in-person meeting and the EWC members attended the online meeting on 13 December 2023 making clear that they did not consider that it fulfilled their right to meet with the central management in an information and consultation meeting. The meeting was held between 11:00-13:30 and 15:30-17:00. The preparatory pre-meeting without management was also held on-line. The Complainant said that in its view there had been no valid information and consultation meeting, and that the information about the project provided by management had been insufficient. As a result, the Complainant said that it did not produce an “opinion” on the proposals, but an “interim report” on 18 January 2024 giving its views on the proposals so far as it understood them. The Complainant went on to say that the Select Committee of the EWC requested various items of information which it considered it needed in order to undertake a detailed assessment of the possible impact of the PST project and to prepare for consultation however management refused to provide this information.

4. First Complaint – failure to hold an in-person meeting

8)         The Complainant said that paragraphs 8 and 9 of the Schedule had not been complied with. It said that the EWC Select Committee was entitled to meet with Central Management in an exceptional information and consultation meeting. The Complainant said the Employer had not complied with:

• The Select Committee’s right to meet without the management concerned being present before an exceptional information and consultation meeting.
• The requirement that the operating expenses of the EWC must be borne by the central management.
• The obligation to provide the members of the EWC and its’ select committee with such financial and material resources as enable them to perform their duties in an appropriate manner, in particular, the cost of organising meetings and arranging for interpretation facilities, and the accommodation and travelling expenses of members of the EWC and its select committee, unless otherwise agreed between the central management and EWC or select committee; and
• The obligation to ensure that consultation is conducted in such a way that the members of the EWC can, if they so request, meet with the central management.

5. Second complaint – failure to provide adequate information

9)         The Complainant said that the Select Committee requested the following information which management refused to provide or provided only partially:

• Financial information in sufficient detail to enable the EWC to understand the in-depth financial thinking or rationale for the proposals and their potential impact on employees
• A breakdown of redundancies by country in order to understand the potential impact on employees
• Information about the possible impact on employees – both those threatened by redundancy and those who would be retained
• Information about the steps to be taken to link consultation with the EWC with consultation with national employees representative bodies.

10)       The Complainant said that because of the failure of the central management, regulation 18A had not been complied with, and the information which had been provided by the management under regulation 18A was incomplete. The Complainant said that this resulted in the EWC being unable to give a properly informed opinion which could be taken into account by central management.

6. Summary of the Employer’s response to the complaint

11)       By way of a response dated 31 May 2024 the Employer disputed the EWC’s specific complaints and reserved its right to provide fully argued submissions in respect of each complaint in due course.

12)       The Employer said that it agreed with the UK EWC that: 1) the British Council informed the select committee of the UK EWC that the Professional Services Transformation project (PST) amounted to exceptional circumstances; 2) that the select committee requested an exceptional information and consultation meeting on PST; 3) that the select committee was able to meet without management being present before that meeting; and 4) the British Council met with that select committee to consult it on PST on 13 December 2023. For completeness, the Employer said that the same events occurred at the same time in respect of its Irish branch and the Irish EWC.

7. Employer’s comments on the First complaint – failure to hold an in person meeting

13)       The Employer said the complaint was not well founded. It said that an exceptional information and consultation meeting took place between management and the select committee of the UK EWC on 13 December 2023. The select committee was able to meet without management being present before that meeting took place. The British Council had borne all expenses incurred in enabling those meetings to take place, such as licence fees for use of MS Teams, the online platform on which the meetings took place. The British Council had borne all costs of all financial and material resources that were required to enable those meetings to take place; and consultation was conducted in such a way that the select committee of the UK EWC met with management on 13 December 2023.

14)       The Employer said that it noted that the Complainant had headed its complaint as “failure to hold an in-person meeting,” and as such it understood the essence of the complaint to be that the British Council held the meeting on 13 December 2023 online. The Employer went on to say “even on that basis, this complaint remains not well-founded. The CAC has already decided in Mr Hans-Peter Hinrichs and others and Oracle Corporation UK Ltd EWC/17/2017 that an exceptional information and consultation meeting under paragraph 8 of the schedule to Amended TICER can take place online instead of in-person. Having regard to the factors outlined in paragraphs 71 to 75 of that decision, the meetings referred to by the UK EWC fulfilled the British Council’s obligations. For completeness, they also fulfilled its Irish branch’s equivalent obligations under Irish law. Finally, the British Council notes that: 1) the coronavirus pandemic led to the widespread adoption of virtual technology to conduct European Works Council meetings, including by the British Council and its Irish branch; 2) the Government recognised when opening its consultation on repealing Amended TICER that ‘remote working’ might have reduced the need for meetings that ‘require the travel of many delegates, sometimes by air’; and 3) the European Commission’s position stated on 24 January 2024 is that it would be appropriate if the European Works Council Directive is revised to specify to avoid any doubt that meetings of European Works Councils operating under the laws of member states, such as Ireland, may be held in a virtual environment, using online meeting tools, reducing the environmental footprint of meetings in line with Union, national and companies’ emission reduction targets, while ensuring meaningful information and consultation at lower environmental and financial costs , reflecting that meetings may make use of virtual as well as physical formats, which is not explicit in the current wording for all European Works Councils. Whilst the CAC is not bound by its own decisions, the British Council suggests that these developments mean that the CAC should not now adopt an approach that is more restrictive in respect of virtual meetings than the one that it adopted before the pandemic in Oracle. This is particularly the case because it would mean that post-Brexit UK European Works Council practice would diverge from EU European Works Council practice, thereby exacerbating the obvious problems and practical difficulties faced by organisations having two European Works Councils. Indeed, the risk of divergence is apparent from this complaint given that the individuals who attended the meeting on 13 December 2024 have chosen not to make any complaint in Ireland in respect of its online format against the British Council’s Irish branch.”

8. Employer’s comments on the Second complaint – failure to provide adequate information

15)       The Employer said that Regulation 18A of Amended TICER did not specify that the British Council was required to provide any of the four items specified by the UK EWC in its complaint. Instead, it said that the content of the information that the British Council provided must have been such as to enable the members of the select committee of the UK EWC to acquaint themselves with and examine its subject matter, to undertake a detailed assessment of its possible impact and to prepare for consultation. The Employer said that the information that the British Council provided to the select committee of the UK EWC on PST in good time before the meeting on 13 December 2024, including following requests from it to provide specified additional information, enabled the members of that select committee to acquaint themselves with and examine the British Council’s PST proposals, to undertake a detailed assessment of its possible impact and to prepare for consultation. The Employer concluded by saying that the complaint was not therefore well founded.

9. Complainants’ comments on the Employer’s response

16)       In a letter dated 3 June 2024 the Complainant was invited to comment on the Employer’s response as well as submitting the more detailed information on the nature of the dispute as referred to in the original complaint to the CAC.  The comments and further and better particulars of the complaints were set out in a letter from the Complainant dated 7 June 2024 which was duly copied to the Employer.  The Employer again responded on 18 June 2024. As both the Complainant and the Employer relied upon these further and better particulars as part of their written submissions for the hearing they are not rehearsed here but are indicated, as far as they are material to the disposal of the complaints, in the paragraphs below.

10. The hearing

17)       In order that the Panel could fully understand the area of dispute between the parties, to give any appropriate guidance on the legislation and to establish whether there was any way of assisting the parties to resolve the issues an informal meeting took place over zoom on 11 July 2024 with the Panel Chair and a Case Manager in attendance on behalf of the CAC.

18)       The parties gave further and wider consideration to proposals which were introduced at the informal meeting and each side proposed to the other how the dispute might be resolved. However, the issues were not resolved and notice was served that a formal hearing before the full Panel would take place in order that the complaints be determined. The parties were informed that a hearing would take place over zoom on 17 December 2024. The parties were invited to supply the Panel with, and to exchange, written submissions ahead of the hearing.  The names of those who attended the hearing are appended to this decision.

19)       In the period between the informal meeting and the formal hearing the parties explained that they had been liaising over the provision of additional information about the PST project and that as part of this central management had provided additional information about the PST project. The Complainant said that this had enabled the EWC to better understand the rationale for the PST project and the possible impact on employees. The Complainant explained that whilst it still had questions about the project and its impact it would continue to liaise with the British Council management. The Complainant explained that on the understanding that management would provide written answers to some of its outstanding questions it would withdraw the second part of the complaint in order to focus on the first part concerning the format of the meeting. On 2 December 2024 the Complainant notified the CAC that it would be withdrawing its second complaint concerning the failure to provide adequate information.

11. Point of clarification at the start of the hearing and the agreed list of issues.

20)       Prior to the informal hearing on 11 July 2024 the parties had agreed a list of issues consisting of 15 paragraphs.

21)       The majority of issues related to the provision of information (which as set out above [see paragraph 19] was not pursued by the Complainant at the hearing).

22)       The three issues within the list of issues which remained in dispute at the commencement of the hearing were:-

“5. Can an exceptional information and consultation meeting ever be held online using a platform such a Microsoft Teams?

1. If the answer to the question at point 5 above is ‘yes’, which of the parties’ positions is correct:

2. the British Council’s position, that, as admitted by the EWC on 1 December 2023, there was no obligation on central management under TICER to agree the arrangements for the exceptional meeting in consultation with the EWC to the effect that it could decide to hold the meeting online after having allowed the EWC to express its views and the parties had tried but failed to agree on the format; or

3. the EWC’s position, that central management could not unilaterally decide to hold the meeting online against the express wishes of the EWC?

4. If the British Council’s position at point 6 above is correct, did the online Teams meeting that took place on 13 December 2023 between the British Council and the EWC in fact constitute an exceptional information and consultation meeting in all the circumstances of this case?

12. Summary of the Complainants written and oral submissions

23)       It is agreed between the parties that the PST project amounted to “exceptional circumstances affecting the employees’ interests to a considerable extent”, that the select committee of the EWC had the “right to be informed” and “the right to meet in an exceptional information and consultation meeting, at its request, the central management, or any other more appropriate level of management” so as to be informed and consulted (paragraph 8(1) of the subsidiary requirements to TICER).

24)       The EWC believes that as a matter of principle an exceptional meeting under the subsidiary requirements should be in-person, not on-line, unless otherwise agreed between the central management and the European Works Council or the select committee. In other words, British Council central management could not unilaterally decide to hold the meeting on-line against the express wishes of the EWC. The Complainant said that the right to a meeting with members of management that had relevant decision-making powers was a key element of the consultation process envisaged in the legislation on European Works Councils. The Complainant emphasised that in contrast, there was no explicit right to a meeting in similar UK legislation about consultation over collective redundancies and therefore the nature, duration and quality of that meeting was very important. The Complainant submitted that the EWC or select committee must agree if the meeting is to be “downgraded” from an in-person meeting to an on-line meeting. The Complainant continued by saying “the right of employees to be consulted through their representatives about exceptional circumstances affecting [their] interests to a considerable extent and for those representatives to meet with management in order to have an exchange of views and establishment of dialogue (definition of consultation in regulation 2(1)) should be seen in the context of the widely-acknowledged power imbalance that exists between an employer and its employees, or in this case between central management and employee representatives. Management takes all the important decisions about the running of an organisation like the British Council. Employees must live with the consequences of those decisions (or leave). Giving employees a right to be properly informed in advance about decisions with a considerable effect on their interests, to be consulted about them, to give their views, and to receive a reasoned response to their views, goes some small way to redressing the imbalance.”

25)       The Complainant said that if management agrees that an EWC has the right to an exceptional information and consultation meeting, management has effective control over when, where and how that meeting will take place because it controls the purse strings, it controls access to facilities and it controls the amount of time EWC members may take off to attend the meeting and prepare for it. The Complainant said that the British Council EWC believed that the right to an exceptional information and consultation meeting in-person is part of maximising the rather limited influence over management decision-making that it is entitled to exercise. It said that an in-person meeting enhances solidarity between the EWC members by enabling them to discuss amongst themselves their views and questions together in one place, something which is lost when each member is sitting in isolation in front of a screen in an office “or even in a bedroom, far-flung across Europe”. The Complainant said that an in-person meeting also allowed EWC members to look central management in the eye as they questioned and perhaps challenged proposals which “they may think are ill-advised or ill-thought through.” The Complainant went on to say that the dynamic that comes from face-to-face, in-person interaction is largely lost when participants are separated by technology. “Indeed, it may be that management participants have turned off their video and therefore cannot be seen by EWC members and EWC members cannot be sure that management are really listening to what they say - this was the case at times in the on-line meeting on 13 December 2024. The EWC believes that holding an exceptional information and consultation meeting on-line rather than in-person greatly diminishes the EWC’s influence and impact with management and exacerbates the already severe power imbalance between them.”

26)       The Complainant said that the Employer in its comments of 18 June 2024, had cited two cases (Byng v London Life Association Ltd and Re Castle Trust Direct plc) in which the Court of Appeal and the High Court respectively ruled that an on-line meeting can be considered to fulfil an obligation to hold a meeting. The Complainant said that it would argue that in Castle Trust the judge expressly stated: “However, it seems to me that the word meeting has to be construed in the context of the purpose for which it is used.” The Complainant said that in the two cases cited, the meetings were held under the Companies Acts 1985 and 2006 respectively and did not involve the same context of power imbalance between management and employees as exists with European Works Councils, or the same context of enabling employee representatives to exercise an influence over management decision-making by delivering an opinion which must be taken into account. It said that they did not involve legislative provisions which clearly implied that the meeting must be in-person (ie travel and accommodation costs) or which stated that any departure from the default requirement should be agreed. “Moreover, in both cases an -in-person meeting was not possible – in Byng because of the sheer number of participants (around 800), and in Castle Trust because of the COVID-19 pandemic. Given the different contexts and different circumstances, we do not believe those decisions are relevant to this case or that they are binding on the CAC in this case.”

27)       The Complainant referenced its earlier observations dated 7 June 2024 in which it said that the relevant provisions of the subsidiary requirements did not state that the meeting may be held on-line; and that the legislator clearly intended that the meeting would take place in-person, notwithstanding that this could involve substantial costs for the employer and management/employee time, and not withstanding that this could well be at a time when the employer is under financial duress. The Complainant said that central management was required to bear the operating expenses of the EWC and to provide the EWC members with financial and material resources that enabled them to perform their duties in an appropriate manner, in particular, the cost of organising meetings and accommodation/travelling expenses unless otherwise agreed. The Complainant said that apart from the proviso regarding “an appropriate manner”, the only limit on this was the limit of one paid expert. “Central management must meet the accommodation and travelling expenses of EWC members unless otherwise agreed. In refusing to allow EWC members to attend an in-person meeting, despite being asked to do so, management refused to provide the EWC members with the financial resources to which they were entitled; the cost and time involved in holding an exceptional meeting are not factors which may be taken into account in deciding whether the legislation allows the meeting to take place online.”

28)       The Complainant explained that the legislation does not say that it is central management that holds the exceptional meeting, inviting EWC members to attend and that it could equally be read as meaning that the EWC holds the meeting and invites appropriate members of management to attend. It said that, the EWC must adopt its own rules of procedure (paragraph 9(3)), implying that it is given control over the way it operates, subject to any costs being limited to acting “in an appropriate manner” (paragraph 9(6)). The Complainant said that the exceptional meeting is held first and foremost for the benefit of the EWC not for the benefit of management. It said that this is seen in the fact that it is the EWC that may request the meeting with management, not management that requests the meeting with the EWC. In view of this, the Complainant said that the EWC’s wish that the requested meeting be held in-person should have been paramount.

29)       The Complainant said that the central management must provide the EWC members with such financial and material resources as enable them to perform their duties “in an appropriate manner”. It said that the EWC wished to perform its duties by holding an in-person meeting with management, and this would not have been inappropriate. It said that Paragraph 9(6) gives the EWC or select committee the right to agree with central management that EWC members’ accommodation and travelling expenses will not be met by the central management. It said that the most obvious (and probably only) meaning of this was that the EWC members could agree not to incur accommodation and travelling expenses by agreeing to hold the meeting remotely, either by tele-conference or nowadays by videoconference.

30)       The Complainant said that it had the right to “meet” with management. It said that with an on-line meeting it was possible for members of management to turn off their cameras so that EWC members could not see whether specific management members were still in their chairs or were being distracted by something or someone. The Complainant continued by saying “of course, it is also possible for participants – both EWC members and members of management - to lose their connection to the meeting. This happened several times during the 13 December on-line meeting. When any of these features inherent to on-line meetings happen, the EWC members would not in fact be meeting with management at those times, as they have the right to. There could also be individuals present at an on-line meeting out of camera shot, unbeknownst to other participants, who have no right to attend. None of these problems can occur with an in-person meeting.”

31)       The Complainant said that the nature and quality of an exceptional meeting must meet certain standards if the EWC is to be properly informed and consulted in accordance with its rights. It said that Regulation 18A required management to consult with members of a European Works Council in accordance with paragraph (5) which says: “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.”

32)       The Complainant submitted that management must provide EWC and select committee members with such resources as enable them to perform their duties “in an appropriate manner” (subsidiary requirements paragraph 9(6)), and that consultation must involve “the exchange of views and establishment of dialogue between EWC members and management” (regulation 2(1)). The Complainant said that there were problems and challenges with on-line meetings that did not arise with in-person meetings and which wasted valuable time, or impeded the provision of information at the meeting, impeded the exchange of views and impeded dialogue and therefore affected the quality of the meeting and the effectiveness of information provision and consultation. The Complainant said that numerous such problems occurred with the 13 December on-line meeting and that “several participants were unable to join the start of the afternoon meeting, some participants had to log off and rejoin to try and overcome technical difficulties, some lost connection and had to rejoin, there were problems with microphones or audio speakers, participants spoke across each other numerous times making it difficult or impossible to hear what was being said, and background noise at times made it difficult or impossible to hear.” The Complainant said that such problems either did not arise at all (or at least not to the same extent) with an in-person meeting or could be resolved much more quickly and so did not waste nearly as much time. The Complainant said that the loss of time due to problems inherent to on-line meetings reduced the effective duration of the meeting and therefore the effectiveness of information provision and the exchange of views and dialogue.

33)       The Complainant said that in the case of the 13 December on-line meeting, the lack of time meant that EWC members did not have the opportunity to engage in dialogue with management over some important points. “It is not enough to say that such questions can be raised in writing afterwards and responded to. That is not dialogue. The requests for further information made by the EWC since the informal CAC meeting on 11 July this year, and the answers given by management which prompted further questions by the EWC and further answers which in turn prompted further questions, indicates how unsatisfactory such an approach is compared with dialogue. But as stated, the dialogue that occurred because the meeting was held on-line was curtailed and impeded.”

34)       The Complainant explained that something else that was very largely lost with an on-line meeting was the informal discussions that take place outside of the main meeting, for example, in breaks between sessions. It said that such informal discussions were often used to make points, ask questions, resolve misunderstandings and diffuse tension, much more effectively than in a formal meeting, by involving the dynamics of personal interaction. The Complainant said that other points the EWC would wish to highlight were the fact that an on-line meeting could entail:

• an inappropriate location for some participants, for example, no private space being available in the office for confidential discussion;

• the length of time spent in front of a screen being tiring and stressful;

• being asked by colleagues locally to carry out other duties during the meeting or during breaks; and

• the meeting being wholly or partially outside worktime (adding this does not happen where everyone is in the same time zone at an in-person meeting).

35)       The Complainant said that if the CAC were to decide that exceptional meetings under the subsidiary requirements must be held in-person unless otherwise agreed, it would not set a major precedent for many other EWCs. “We are aware of only one other EWC that is established under the TICER subsidiary requirements – the easyJet EWC (which was the subject of CAC decision EWC/36/2021).” It added that if the CAC were to decide, that central management may unilaterally decide on the format of an exceptional meeting, that in the circumstances of this specific case, the virtual meeting that took place on 13 December 2023 did not meet the requirements for an exceptional information and consultation meeting under paragraph 8(1) of the subsidiary requirements and therefore did not constitute such a meeting.

36)       The Complainant continued by saying that the holding of an exceptional information and consultation meeting is at the request of the EWC and that it was therefore appropriate that the EWC should express its view on the form of meeting it would like. It said that wherever possible it was preferable for the format of the meeting to be agreed as between the employee representatives and management and that this would be in keeping with the duty imposed by Regulation 19 (1) of TICER that the central management and the European Works Council work in a spirit of cooperation with due regard to their reciprocal rights and obligations. The Complainant said that the duration of the meeting should be an important consideration as to whether holding that meeting on-line would be appropriate. It said that the more complex the proposal, the wider its scope, and the more significant its implications for employees, the longer an exceptional meeting would need to be. The Complainant said that the “PST project is highly complex involving multiple roles currently undertaken by British Council employees that will be outsourced to Tata, it covers four separate workstreams, and it will have substantial implications for British Council employees including redundancies, transfer of work and additional tasks for retained employees. The complexity, wide scope and potential impact on employees is evidenced by quantity of information provided by management initially as part of the management report sent on 31 October 2023, the number of questions and comments garnered from employees expected to be affected by the project and the further information provided to the EWC both in the run-up to the 13 December on-line meeting and subsequently.”

37)       At the annual EWC meeting in October 2023 the Complainant said that the EWC had expressed concern that trying to cover all the workstreams of the PST project in one meeting was too much and pointing out that previous parts of the wider Transformation were consulted on separately. In correspondence it said that the EWC had reminded management that the PST project proposals were significantly more complex than those that were made for a previous Transformation project concerning Teaching for which several on-line meetings were held over summer 2021.

38)       The Complainant said that ultimately the on-line meeting was scheduled for just four hours which the EWC considered was not sufficient, yet the EWC members could not have been expected to attend a virtual meeting for the length of time that the consultation merited. It said that all the problems inherent in an on-line meeting meant that, in the circumstances of this case, an on-line meeting was not appropriate. In short, the Complainant said that it feared that if consultation on such a significant proposal as the PST project may be conducted on-line, there would be very few, if any, topics which would merit in-person consultation.

39)       The Complainant said that it was now too late to hold an in-person meeting on the PST project and therefore it was not seeking any order. It said that it nevertheless believed that had the EWC received a timely and appropriate consultation with an in-person meeting and more transparency from British Council management, it would have been able to give its opinion including making recommendations that would have lessened the impact on the workforce and led to a smoother transition.

13. Summary of the Employer’s written and oral submissions

40)       The British Council said that the first question for the Panel to determine was which of the parties’ positions was correct: “(a) the British Council’s position, that, as admitted by the EWCs on 1 December 2023, there was no obligation on the British Council under TICER to agree the arrangements for the exceptional information and consultation meeting in consultation with the UK EWC, to the effect that the British Council could decide to hold the meeting online after having allowed the UK EWC to express its view and the parties had tried but failed to agree on the format; or (b) the UK EWC’s position, that the British Council could not unilaterally decide to hold the meeting online against the express wishes of the EWC.”

41)       The Employer said that the British Council’s position was that the UK EWC was correct to admit as follows on 1 December 2023 that: “We acknowledge that, unlike under the Irish legislation, there is no obligation on central management to agree the arrangements for the exceptional meeting in consultation with the UK EWC”. The Employer said that at no point since the Complainant made that admission had the UK EWC identified any provision of TICER that meant that the British Council could not hold the meeting online against the express wishes of the EWC. The Employer suggested that this was because no such provision existed.

42)       The Employer said that it had allowed the UK EWC to express its views on the format of the meeting and tried to agree on that. It said that this was done during “(a) the annual meeting on 19 October 2023 and (b) subsequent email correspondence. The Employer went on to say that in respect of paragraph 9(6) of the schedule to TICER, which provided as follows: “The central management shall provide the members of the European Works Council and its select committee with such financial and material resources as enable them to perform their duties in an appropriate manner. In particular, the cost of organising meetings and arranging for interpretation facilities and the accommodation and travelling expenses of members of the European Works Council and its select committee shall be met by the central management unless the central management and European Works Council, or select committee, otherwise agree.” That:

(a) it accepted that it had to provide the members of the UK EWC with “such financial and material resources as enable them to perform their duties in an appropriate manner” unless they “otherwise agree”.

(b) it did not seek to “otherwise agree” any departure from that default requirement on it;

(c) it complied with that requirement by providing all necessary resources for the members of the UK EWC to attend the meeting on 13 December 2023 using Microsoft Teams, such as appropriate access to its IT systems to attend the online meeting;

(d) the listing of potential costs did not mean that the British Council had to actually bear such costs in connection with every meeting. The Employer gave the example that the language skills of members of the UK EWC meant that meetings were conducted in English. The Employer added that such meetings were no less a meeting because the British Council did not provide unnecessary ‘interpretation facilities’ at them; and

(e) the CAC had already indicated in paragraph 75 of Oracle that additional costs need not be borne by the British Council in circumstances where a meeting is held online.

43)       The Employer said that if it was correct on this issue, the final question the Panel needed to determine was whether the online Teams meeting that took place on 13 December 2023 between the British Council and the UK EWC constituted an exceptional information and consultation meeting in all the circumstances. The Employer said that in paragraph 73 of Oracle, the CAC had set out a non-exhaustive list of considerations which would determine whether it would be acceptable to hold a meeting virtually, which included the: “nature of the undertaking (for example a company in the high tech sector as compared with one in the extraction or manufacturing sectors); the nature, competence and experience of employees’ representatives in using the technology; whether virtual communication is part of day- to- day interaction in the business; the usual or accepted form of interaction between the parties; whether a face to face meeting is particularly difficult to arrange; whether sufficient preparation has been undertaken (for example attention paid to difficulties which might arise with language etc); the number of people involved; whether a virtual meeting involves video or simply sound; and whether its primary purpose is information giving/Q&A as opposed to more complex interaction and dialogue or decision taking”

44)       The Employer said that having had regard to these considerations, it submitted that:

(a) contrary to the UK EWC’s assertions, the CAC in Oracle did not state that a business must be in the ‘high tech sector’ for it hold online meetings. It suggested that sector “for example” and stressed what matters is the “nature of the undertaking”.

(b) the UK EWC had accepted that its members had “competence and experience in using the relevant technology”

c) the UK EWC had accepted that virtual communication was a part of day-to-day interaction in the business. In particular, the use of Microsoft Teams to hold meetings was an established practice in the British Council.

(d) since 2020, exceptional information and consultation meetings between the British Council and the UK EWC had taken place exclusively online, including one earlier in 2023 that took place without issue and,

(e) exceptional information and consultations are distinct from annual meetings under TICER. The Employer submitted it was therefore irrelevant whether virtual meetings were the usual or accepted way of the British Council holding annual meetings.

(f) The Employer said that the UK EWC had accepted that it was possible to conduct consultation online during the pandemic and offered no reason why the ending of lockdown restrictions alone might mean that it was no longer possible.

(g) The Employer said it would have been particularly difficult for the British Council to arrange an in-person meeting due to its financial constraints. It said that the UK EWC had itself acknowledged that the British Council must “make cost savings in order to remain financially viable”.

(h) the meeting on 13 December 2023 involved video, rather than merely sound; and

(i) while the UK EWC suggested that an online format made it more difficult for its members to interact with each other for a number of reasons, it did not suggest that they were unable to do so.

45)       The Employer said that the UK EWC had confirmed that its members were able to hold an online pre-meeting ahead of the consultation meeting. The Employer said that alleged issues such as that people talked at the same time, that it was difficult to hear all speakers and that microphones did not work were also issues which frequently arose in the context of in-person meetings. Finally, the Employer said the most significant argument as to why the British Council had fulfilled its obligations by holding the exceptional information and consultation meeting on 13 December 2023 was that in all the circumstances it enabled an effective and useful overall information and consultation process. It said that in this respect, the British Council’s process could be clearly distinguished from the process followed by Oracle, which was unsurprising as its emails clearly indicated that it was cognisant of the procedural guidance provided by the CAC in Oracle given Oracle’s procedural errors. As such the Employer said that:

(a) the British Council provided its report to the UK EWC on 31 October 2023, and so over a month before the meeting on 13 December 2023;

(b) the British Council invited the UK EWC to ask questions on its report and answered them over a week before the meeting;

(c) the UK EWC was able to hold a pre-meeting to consider the British Council’s report and answers before the meeting on 13 December 2023,

(d) the British Council provided the UK EWC with all necessary facilities for its members to attend the meeting on 13 December;

(e) the meeting on 13 December 2023 enabled consultation on PST in the form of an effective dialogue and exchange of views between the British Council and the UK EWC. In particular, the Employer noted that the UK EWC had withdrawn its complaint that it had received insufficient information in order to enable consultation and was accordingly estopped from arguing that the meeting was not an exceptional information and consultation meeting for that particular reason;

(f) the British Council continued to engage with the EWC in writing after the meeting to address all outstanding issues in writing;

(g) the UK EWC was able to provide opinions to the British Council after the meeting and the further engagement by the British Council with it in the form of an interim report, albeit the British Council respected that this was not an ‘opinion’ as such term is used in paragraph 8(3) of the schedule to TICER and

(h) the British Council provided a reasoned response to those opinions, thereby bringing the process to an end.

The Employer said that in light of its submissions the CAC should determine that the complaint was not well-founded.

14. The Law

46)       The relevant provisions are those of the Transnational Information and Consultation of Employee Regulations 1999 (as amended). These are not set out here for reasons of space. This case involves a complaint where the CAC has jurisdiction under TICER. The complaint has been made under Regulation 21 – complaints about the operation of information and consultation (concerning exceptional information and consultation meetings):- . The relevant provisions, in respect of this application, are:-

            “2. Interpretation

“consultation” means the exchange of views and establishment of diaglogue between members of an EWC… and central management…”

18A (4) The central management… shall consult with… members of a European Works Council…

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

Schedule: Subsidiary Requirements

Exceptional Information and Consultation Meetings

1. Where there are exceptional circumstances affecting the employees interests to a considerable extent… the select committee… shall have the right to be informed. It shall have the right to meet in an exceptional information and consultation meeting, at its request, the central management…

2. Procedures

(6) The central management shall provide members of the EWC… with such financial and material resources as enable them to perform their duties in an appropriate manner. In particular, the cost of organising meetings and arranging for interpretation facilities and the accommodation and travelling expenses… unless… the EWC otherwise agrees”

15. Considerations and Findings

47)       The Panel was presented with a very large amount of documentation including an unindexed bundle of evidence extending to over 400 pages, an unindexed bundle of consultation documents extending to nearly 300 pages and an indexed bundle of authorities.  It would have been helpful if the bundles had been indexed and if the parties had been more concise in the documents provided as the Panel had to spend a significant amount of time navigating the documents and reading documents which ultimately were not relevant to the issues that they needed to be determine and were not referred to by either party during the hearing or in their written submissions.  The Panel noted that parties can, and should seek to agree the bundle between themselves.  They should provide only the relevant extracts of documents relied upon rather than providing full documents (for example numerous iterations of the lengthy ‘questions and answers’ document was provided).

48)       We cannot and shall not refer to every document or piece of correspondence and some points made in writing or orally may not have been included in the indicative summaries of the parties cases provided above. However, we wish to assure the parties that the Panel has carefully and fully considered all the evidence, engaging with all the material provided and with the oral submissions and elaborations at the hearing. 

49)       Some of the considerable amount of documentation reflects the fact the parties sought to contextualise the current dispute, going back to the failure to conclude a European Works Council Agreement, and to reference earlier dealings between them on which differing interpretations were placed.  It reflects also the complexity of the TICE Regulations 1999 (as amended).

50)       We have taken care to keep within our jurisdiction. Put in everyday terms we consider the questions on which CAC determination is appropriately sought are:

1. can central management unilaterally decide to hold the meeting online against the express wishes of the EWC after allowing the EWC to express its view and the parties trying but failing to agree the format
2. If yes did the online Teams meeting that took place on 13 December 2023 between the British Council and the EWC in fact constitute an exceptional information and consultation meeting in all the circumstances of this case?

51)       The parties are agreed that there were exceptional circumstances affecting the employees’ interests to a considerable extent and therefore that Paragraphs 8 and 9 of the Schedule to TICER are relevant.

52)       The Panel considered in detail the correspondence between the parties regarding the decision to hold the meeting online and the submissions of the parties in respect of that.

53)       The Panel considered carefully the TICER legislation and the case law presented to it by the parties.  The Panel reached the following conclusions:-

(1) TICER gives an EWC a right to meet in an exceptional information and consultation meeting where there are ‘exceptional circumstances affecting the employees interests to a considerable extent’ (Regulation 8 of the Subsidiary Schedule to TICER). There was no dispute between the parties in this application, that those circumstances had arisen and there was a requirement for an exceptional meeting to be held.

(2) TICER is silent as to the format of that meeting and as to whether that format needs to be agreed between the parties.

• The Complainant argued that at the time TICER was drafted it must have been referring to a meeting in person (given that the advances in technology and video communications had not been made at the time TICER was drafted).
• The British Council argued that, whilst video technology could not have been envisaged at the time TICER was drafted telephone conferencing was.  The British Council also relied on the case of Byng (see above) where the Court of Appeal held, in a case concerning the Companies Act that ‘the fact that such a meeting could not have been foreseen at the time the first statutory requirement for the meetings were laid down, does not require us to hold… such a meeting is not within the word meeting’.
• The Panel found the British Council’s submissions in respect of this point to be very persuasive. However, and in any event, the Complainant did not ultimately seek to argue that no valid exceptional meeting could ever be held on line, just that, in order to be valid it would need to be agreed by the EWC.  It is notable that other exceptional meetings had taken place between the British Council and British Council EWC online and that this had been agreed with the EWC.

(3) The format of the meeting (online, by phone, or in person) does not need to be agreed between the EWC and the Employer, although it would be good practice, where possible to agree the format of the meeting:-

• The EWC argued that an online exceptional meeting could only be valid if the format was agreed with the EWC. The EWC relied, in particular on Regulation 9 of the Subsidiary Requirements Schedule to TICER which provides:-

“The central management shall provide members of the EWC… with such financial and material resources as enable them to perform their duties in an appropriate manner. In particular, the cost of organising meetings and arranging for interpretation facilities and the accommodation and travelling expenses… unless… the EWC otherwise agrees”

• The EWC argued that Regulation 9 meant that if an online meeting were to be unilaterally imposed upon the EWC the employer would effectively be failing to provide members of the EWC with financial and material resources in particular accommodation and travelling expenses.
• The Panel did not find this argument persuasive.  Regulation 9 only requires members of the EWC to be provided with such financial and material resources as to enable them to perform their duties in an appropriate manner (emphasis added).  The specific costs listed are examples of costs which may frequently occur but they do not occur in every case.  The British Council is not required to incur those costs in every case regardless of whether they are incurred or not:-
• To give one example, in the British Council, interpretation facilities were not required because all members of the British Council EWC spoke fluent English.  The Panel Chair clarified during the hearing that there had never been an express agreement that interpretation facilities need not be provided. The EWC argued that such agreement was implicit because they had not requested them. The Panel did not accept that there was any need for an agreement that interpretation facilities which were not required need not be provided.
• Similarly, even with an in-person meeting, travel and accommodation expenses may not be incurred for some or all of the EWC members depending upon the location of the meeting. It would make a nonsense of the Regulations if in those circumstances travel and accommodation expenses had to be paid unless the EWC agreed that they did not.
• Further, and more importantly, the Panel found that Regulation 9 related to agreements relating to the payment of expenses. It did not relate to a decision regarding the format or location of the meeting and did not require EWC consent in order for a meeting to be held in an online format.
• Despite the above, it would, as the CAC set out in Oracle, be good practice for the employer and their EWC to seek to agree the format of the meeting.

(4) In order for a meeting to amount to an ‘exceptional information and consultation meeting’ within Regulation 8 of the Schedule to TICER it must comply with Regulation 18A of TICER:-

• Regulation 18A of TICER requires that ‘the content of the consultation, the time when, and the manner in which it takes place, must be such as to enable an EWC or information and consultation representatives to express an opinion on the basis of the information provided to them’.
• Therefore, if an employer unilaterally imposes an online meeting upon their EWC, the employer should be careful to ensure that the EWC members can fully participate in that meeting and engage in the consultation.
• It would be good practice for an employer who decides to hold an online exceptional meeting to ensure that all EWC members:-
  1. Have access to the technology they need in order to fully participate in an online meeting;
  2. Have access to a reliable and consistent internet connection.
  3. Have access to a private and quiet space within which to access the meeting where they are unlikely to be interrupted.
• It would also be good practice for the EWC to identify any specific issues that their members would have in attending an online meeting (for example lack of a private/quiet space, issues with technology) so that the EWC and employer can work together to ensure that the meeting is effective.
• The Panel also considered the decision of the CAC in Oracle. The CAC Panel, in Oracle, held that the following factors could be relevant in determining whether an online meeting was appropriate:-
  1. The nature of the undertaking. The example given in Oracle was a company in the high-tech sector as compared to one in the extraction or manufacturing sectors.
  2. The competence and experience of employees’ representatives in using the technology;
  3. Whether virtual communication is part of day-to-day interaction in the business;
  4. The usual or accepted form of interaction between the parties;
  5. Whether a face to face meeting is particularly difficult to arrange;
  6. Whether sufficient preparation has been undertaken (for example attention paid to difficulties which might arise with language);
  7. The number of people involved;
  8. Whether a virtual meeting involves video or simply sound;
  9. Whether its primary purpose is information giving/Q and A as opposed to more complex interaction and dialogue or decision taking.
• Whilst the Panel does not disagree with the Panel’s decision in Oracle and the factors put forward by them as potentially indicative of whether an online meeting is appropriate or not, the ultimate test is that set down in section 18A of TICER, as set out above.

(5) The Panel holds that the online meeting, held by the British Council on 13 December 2023, was a valid meeting and complied with Regulation 18A of TICER:-

• As set out above, the Panel’s view is that it can be open to an employer to unilaterally impose an online meeting upon an EWC.
• It would, however, be good practice for an employer and EWC to seek to agree the format of the meeting.  They did so in this case but the parties were unable to agree on format.
• The Panel were provided with a number of witness statements from EWC witnesses setting out issues with the online nature of the hearing. Those issues consisted of the following matters:-
  1. Issues joining the meeting;
  2. Issues with losing connection (and having to re-join);
  3. Issues with microphones or audio speakers (people speaking or mute and or being inaudible);
  4. Participants speaking over each other;
  5. Background noise.
  6. Individuals being unable to stay for the entirety of the meeting due to it being held outside of their usual working hours and/or due to having to attend personal appointments (the meeting was held during UK working hours).
  7. The fact that the duration of the meeting was limited to four hours (due to the fact, the EWC said that individuals could not be expected to sit in front of a screen for longer) meant that they were unable to ask all of the questions they needed to.

• Having heard from the EWC’s witnesses, the Panel reached the conclusion that the issues set out above, were the sort of technical difficulties which frequently occur at online meetings and that all attendees were able to participate to a satisfactory extent. Further, some of the difficulties reported by the witnesses were not caused by the meeting being online but rather by the chairing of the meeting not being fully effective and this could have been the case if it was in person.

• The Panel notes that many of the issues raised can also arise at in person hearings (for example participants speaking over each other, issues with microphones (in large meetings, background noise). The Panel also notes that there are a number of advantages to online, as opposed to in person meetings:-
  1. The reduction in the need for travel to and from the meeting and the reduction in environmental impacts and the impact on the individual employee and EWC members.  The Panel noted, in particular that one of the concerns raised by an EWC witness (that they had to leave the meeting early due to a personal appointment) would have been more serious had the meeting been in person. Had the meeting been in person they would have had to choose between attending the meeting and attending the private appointment. As it happened they were able to attend a significant portion of the meeting and their private appointment.
  2. The ability to overcome some of the issues raised more easily than in an in-person meeting. For example if people are speaking over each other they can be muted online. If people cannot hear or do not wish to speak in a large meeting they can post questions and answers in the chat box.
  3. The ability to reconvene. It is easier to reconvene online than in person (given the availability of individuals to attend online must be better than to travel overseas and attend an in person meeting).  It is notable that, despite concerns raised by the EWC at the hearing before this Panel regarding the need for more time, this was not raised by the EWC with the employer in the immediate aftermath of the Exceptional Meeting.
• It was also clear, from the evidence, that communication via virtual means is very common within the British Council and is part of their every-day work communication. There was no suggestion that any of the EWC members were unfamiliar with virtual meeting technology.

54)       For the reasons set out above, the Panel concludes that the Teams meeting held on 13 December 2023 discharged managements legal obligations to hold an exceptional information and consultation meeting.

16. Decisions and Orders

55)       We find that the complaint under Regulation 21 is not well founded.

Panel

Ms. Laura Prince K.C.

Mr. Martin Kirke

Mr. Paul Noon

23 December 2024

Appendix 1

Names of those who attended the hearing on 17 December 2024:

For the Complainants

Philip Sack

Stuart Anderson

Adrian Lewis

Liis Raudsepp

Louise Trussell 

Diego Murga

Theodore Brereton

Janis Michopulis

Paul Dillon

For the Employer

David Hopper

William Brown

Andreea Banita

Robert McChesney

Lucy Watkins