The status of European Works Councils in UK law post-Brexit : a commentary on EasyJet PLC v EasyJet European Works Council and Olsten (UK) Holdings Limited v Adecco Group European Works Council

The European Works Council (EWC) Directive, first adopted in 1994 and amended in 2009, establishes a common legal framework, overseen by the Court of Justice of the European Union (CJEU), for the provision of information to and consultation with employees at a transnational, European level.1 The Directive aims to ensure that employees are involved whenever significant decisions are taken in another Member State that may affect their employment or working conditions, and responds to the practical problem that in companies operating across borders, business decisions are frequently made abroad with no involvement of affected employees or their representatives. Article 2 of the Directive requires medium and large-scale multinational enterprises, which are ‘Community-scale undertakings or groups of undertakings’, to set up either transnational information and consultation bodies in the form of EWCs or, alternatively, information and consultation procedures (ICPs).2 Responsibility for establishing an EWC or ICP rests with the central management of the Community-scale undertaking.3 The central management or the central management’s representative agent has to be situated in the EU.4 Overall, the EWC Directive establishes a complex procedural regime to set up EWCs which has resulted in the establishment, as of January 2024, of approximately 1,000 EWCs across the EU covering approximately 10 million workers and one-third of the workforce which falls within the Directive’s scope.5 It is generally recognised that EWCs fall short of European-level policy-makers’ original intention that they would mitigate the ‘fundamental asymmetry’6 between the economic and social elements of European integration by promoting an interdependence between management and employee representatives based on regular meetings. EWCs remain ‘relatively immature bodies’7 compared to national systems of worker representation. Although EWCs have generally enhanced the level of communication between management and employees, the focus remains on the provision by management of information to, rather than on consultation with, EWCs; they are often not involved in the decision-making itself and the quality of information provided varies. Meaningful consultation does not always, therefore, take place.8