If your business is part of a multinational organisation that operates in at least two countries in the European Economic Area (EEA), you may be subject to the legislation on transnational information and consultation (I&C).
This gives employees in multinational undertakings with at least 1,000 employees the right to be represented on a European Works Council (EWC).
The EEA is made up of the 28 European Union member states plus Norway, Iceland and Liechtenstein. People employed in the UK will no longer be able to ask their employer to set up an EWC after Brexit. However, if a request to set up an EWC was submitted before the UK left the EU it will be allowed to complete.
Current representative still may be able to be involved with your business’s EWC after Brexit if your business agrees. The government will make sure the enforcement framework, rights and protections for employees in UK EWCs are still available as far as possible. See GOV.UK guidance on asking your employer to set up an EWC.
An EWC is an I&C forum that is designed to allow for employees in different EEA nations to be informed and consulted about transnational issues that affect their employer.
Some large multinational organisations have set up EWCs following a request from their employees. However, businesses can start the process of negotiating an EWC agreement themselves.
The transnational I&C legislation applies differently to EWCs:
- established before 15 December 1999
- established on or after 15 December 1999 and where the agreement was signed or revised in the two years before 5 June 2011
- established between 16 December 1999 and 5 June 2011 that have not been revised in the two years before 5 June 2011
- that are yet to be established or were established on or after 5 June 2011
The following guidance applies to these last two categories of EWC.
Transnational I&C requirements
If your business has 1,000 or more employees, and has at least 150 employees in each of two or more EEA states, your employees can request that an EWC is set up. For a request to be valid, it must be:
- made by either at least 100 employees in at least two undertakings in two or more EEA countries, or representatives representing that many employees
- in writing and dated
- sent to your business' central or local management
Agency workers do not count towards the number of people in the business in which they are placed. However, they do count towards the number of people employed by the employment agency business providing them.
Once you have received a valid request, you must make the necessary arrangements for your employees to elect or appoint representatives of a special negotiating body (SNB).
You'll have six months to set up the SNB and start negotiations. Otherwise fall-back provisions will apply.
The SNB should be made up of employees' representatives from each EEA country where your business has employees. Its role is to negotiate with your central management over the composition and terms of the EWC.
Once an SNB has been set up, the parties have up to three years to negotiate an EWC agreement in order to determine - among other things - exactly how the EWC will be set up, what it will discuss, how often it will meet and what it should be provided with to help it function.
A negotiated EWC agreement must set out:
- what parts of the undertaking will be covered by the agreement
- the composition of the EWC and how long its members will serve
- the functions of the EWC
- the way I&C will take place
- how central management will disclose information
- the venue, frequency and duration of EWC meetings
- how the consultation dialogue with the EWC should link to I&C at the national level
- the financial and material resources that will be available to the EWC
- how long the EWC will last
- how the EWC agreement will be renegotiated
- if a select committee should be set up and, if so, how it will operate
An EWC agreement will need to meet the requirements of the fall-back provisions if:
- the parties decide not to negotiate
- an agreement cannot be reached
- the management and the SNB decide it is so
The fall-back provisions are much more prescriptive about what the employer must consult over and when.
While your central management should try to be as open as possible with your EWC, you can withhold certain information if its disclosure would seriously harm the functioning of the business.
Enforcement of the EWC legislation
The enforcement provisions of the EWC legislation are shared between the Industrial Court and the High Court.