UK: Did The Central Arbitration Committee Have Jurisdiction To Hear A Complaint By A Trade Union Under The Information And Consultation Of Employees Regulations 2004?

Yes, said the EAT in Acas v PCS.

The Public and Commercial Services Union made a complaint to the Central Arbitration Committee that ACAS had failed as an employer to consult with its employees pursuant to a negotiated agreement made in 2006 and renewed in 2015. ACAS disputed the jurisdiction of the CAC on the basis that it was not an "undertaking" within the meaning of Reg 2 of the ICE Regulations because it was not "carrying out an economic activity, whether or not operating for – 6 – gain". The CAC rejected the ACAS argument on the ground that all of ACAS activities satisfied that requirement. In the alternative, if that were wrong, a sufficient part of its activities met that test.

On appeal, the EAT agreed that the CAC had jurisdiction to hear the complaint.

It was agreed by all that ACAS, a Crown Non-Departmental Public Body, was an "undertaking" as such. This reflected the decision of Langstaff P in Moyer-Lee v Cofely Workplace Ltd [2015] ICR 133 that the word means a "legal entity capable of being the employer of employees".

In deciding whether the undertaking carried out an economic activity the EAT drew on case law of the European Court on the EU Acquired Rights Directive and the distinction made in Scattolon v Ministero dell'Istruzione, dell'Universita e della Ricerca [2012] 1 CMLR 17 between economic activity, on the one hand, and, on the other, activities "which fell within the exercise of public powers".

The EAT disagreed with the CAC's conclusion that all ACAS services constituted 'economic' activity for the purpose of Reg 2 (for example, ACAS conciliation in employment tribunal cases fell within the category of the exercise of public powers). But the EAT adopted the alternative ground for the CAC's decision, that a sufficient part of its activities were an "economic activity". For example ACAS Good Practice Services were an economic activity, and neither merely ancillary, nor de minimis. This sufficed for the purposes of the definition in Reg 2 of the ICE Regulations.

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