Decision

Decision

Updated 26 March 2021

Applies to England, Scotland and Wales

Case Number EWC/30/2020

25 March 2021

CENTRAL ARBITRATION COMMITTEE

TRANSNATIONAL INFORMATION AND CONSULTATION OF EMPLOYEES

REGULATIONS 1999 AS AMENDED

DECISION ON A COMPLAINT UNDER REGULATION 21

The Parties:

Walgreens Boots Alliance European Works Council for Walgreens Boots Alliance – Alliance Healthcare and International Retail

and

Walgreens Boots Alliance – Alliance Healthcare and International Retail

1. Preliminary Note

One of the complaints in this case concerns the Employer’s response to an alleged breach of confidentiality by the chair of the employee representatives on the European Works Council. The Employer requested that some of the documents and information contained in this decision should be described in general terms to preserve confidentiality. The Panel has agreed to this request in the light of the special circumstances of this case. The summaries of the parties’ submissions and the Panel’s considerations are, accordingly, less detailed and specific than they would have been in the absence of these special circumstances.

2. Introduction

1) On 8 October 2020 Dr Werner Altmeyer, Director of the EWC Academy, submitted a Complaint to the CAC on behalf of the Walgreens Boots Alliance European Works Council for Walgreens Boots Alliance – Alliance Healthcare and International Retail (the “WBAEWC1” or “EWC”) and Mr. Jaume Olivé Plaza, chair of the employee representatives on the EWC (“the Complainants”) under regulation 21 of the Transnational Information and Consultation of Employees Regulations 1999, as amended (TICER) in relation to the actions of Walgreens Boots Alliance (the Employer) ^{[footnote 1]}. The CAC gave both parties notice of receipt of the Complaint on 9 October 2020. The Employer submitted a response to the CAC on 20 October 2020 which was copied to the Complainant.

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 Professor Gillian Morris as Panel Chair and Mr. Mike Cann and Ms. Hannah Reed as Members. The Case Manager appointed to support the Panel was Sharmin Kahn but for the purposes of this decision Nigel Cookson fulfilled that role.

3. Background ^{[footnote 2]}

3) Walgreens Boots Alliance is a large retail pharmacy chain operating across the United States and Europe. The representative agent of the central management for European Works Council purposes was situated in the UK at the date of the Complaint. In September 2015 the EWC entered into the Walgreens Boots Alliance European Works Council Agreement for Alliance Healthcare and International Retail Divisions (“the Agreement”) with the Employer. This was an updated version of an earlier agreement. It was common ground between the parties that the Agreement was covered by TICER at the date of the Complaint. Provisions of the Agreement of particular relevance to this case are as follows:

Clause 2 – Aim and Scope of Agreement

2) The parties shall participate in the WBAEWC1 in good faith …

Clause 6 – Composition of the WBA European Works Council

1) The WBAEWC1 shall consist of:

• The Executive Chairman of WBA and/or other senior executive as he/she may appoint one of whom will preside over the WBAEWC1.

• Other company nominated executives one of whom will act as the WBAEWC1 Secretary.

• Employee representatives appointed under the procedures set out in article 7 of this agreement. Where possible and appropriate, employees and/or their national representatives should keep the need for balanced representation in the EWC in mind when selecting delegates.

Clause 7 - Appointment of Employee Representatives

1) The employee representatives for the purpose of this agreement are the employee representatives who, from time to time, have been elected/selected to the WBAEWC1 under the terms of this agreement….

11) Substitutes may be nominated or elected per country. They will substitute for the elected representative in the event that the elected representative is unable to attend an WBAEWC1 meeting, such unavailability being notified to the WBAEWC1 Secretary at least one week prior to the annual WBAEWC1 meeting. Subject to the provisions of the relevant national law, the substitutes will automatically replace the employee representatives in the event that the permanent employee representatives are unable to continue their responsibilities for whatever reason. Substitutes will replace elected representatives for the duration of the original mandate.

Clause 8 – Limited Committee

1) At the first annual WBAEWC1 meeting immediately following the 4-yearly election, the employee representatives will elect 5 of their members to act as employee representative co-ordinators (“The Limited Committee”) who will come from different countries. The co-ordinators must come from different countries, and one of them must be from the UK.

2) A substitute Limited Committee member will also be appointed from among the members of the WBAEWC1 to act on behalf of a specific elected Limited Committee member in the event that he/she is unable to attend any formal meeting. In the circumstances that a substitute member attends in this capacity they shall assume the full authority of the absent Limited Committee member for that meeting.

3) The Limited Committee will exchange views and, where appropriate agree, with the WBAEWC1 Secretary on:

• Venues for WBAEWC1 meetings

• Finalising the agenda for WBAEWC1 meetings

• Preparing WBAEWC1 meetings

• Finalising WBAEWC1 notes • Drafting communiqués for communicating the outcome of EWC meetings to the workforce within two weeks of the meeting

• Identification of possible expert advisors and the extent of their role and involvement in EWC meetings…

• Extraordinary meetings

• How to integrate new WBAEWC1 members following relevant acquisitions within EEA countries

• Transnational issues that arise between annual meetings

• Training for EWC members.

5) The Limited Committee will meet with the WBAEWC1 Secretary at least once a year. The members of the Limited Committee may meet on their own prior to the meeting with the WBAEWC1 Secretary, who may be accompanied by other, appropriate members of management. Interpretation facilities will be made available, on the same basis as for WBAEWC1 meetings. These meetings will be scheduled over one day.

Clause 9 – Operation of the Annual WBA European Works Council Meeting

1) The WBAEWC1 shall meet once each year. The meeting will normally be held after the publication of WBA’s annual results.

2) The meetings will last for two days. In general Day One will consist of the employees pre-meeting (see 10 below). Day Two will consist of the relevant EWC meeting and will be presided over by WBA’s Executive Chairman or such other executive as he/she may nominate…

4) WBAEWC1 meetings will be conducted in English, which is the official working language of the company. The agenda and notes will be produced in English and a translation will be provided by the local business unit following agreement of the English text. A summary will also be translated by the local business unit as may be necessary. To ensure as far as possible that there is meaningful dialogue and a full exchange of views at the meetings simultaneous interpretation facilities will be made available….

6) WBA will ensure that all employee representatives have access to such facilities and equipment as to enable them to communicate with their constituency and with the other WBAEWC1 representatives.

Clause 10 – Employee Representatives Pre-Meetings

1) The employee representatives may hold a pre-meeting on the day immediately preceding WBAEWC1 meetings, which shall not be attended by management.

2) Employee representative pre-meetings will be provided with the same facilities, including simultaneous interpretation, as are available at the annual WBAEWC1 meeting.

Clause 14 - Confidentiality

1) The parties are agreed that the WBAEWC1 shall operate in an environment which encourages the free exchange of views and opinions between the parties. In order to support this all employee representatives attending WBAEWC1 meetings agree not to misuse or divulge confidential information. This obligation continues after the conclusion, for whatever reasons, of employee representatives’ terms of office or employment, for as long as the information remains confidential, as deemed by WBA. Any proven breach of this provision will lead to the individual employee representative being excluded from any further participation in WBAEWC1 meetings and will be viewed as a serious offence and dealt with in accordance with national and/or local laws and procedures in the representative’s country of employment.

2) It is accepted by all employee representatives that the company has an obligation not to release price sensitive or other confidential information which WBA believes is of such a nature that its release would harm the functioning of WBA, or be prejudicial to it, or is in contravention of any national law or regulations where it has operations. The objective criteria includes (sic) statutory or regulatory rules, including stock exchange rules, on disclosure of information applying to WBA in whatever jurisdiction it carries on business.

Clause 18 – Legal Status and Dispute Resolution

2) The parties are agreed that they will work together to ensure that any disputes or misunderstandings that arise in the meaning and operation of this Agreement shall be resolved within the internal mechanisms of the WBAEWC1 itself.

3) Where necessary, and following detailed and careful consideration by the WBAEWC1 such consideration lasting no more than 4 months, the parties will by agreement appoint a third party to assist the parties in resolving any dispute. In making any recommendations for resolution such third party must not substitute their own judgement for the terms of this Agreement.

4) In the event of the failure of the internal mechanism to resolve the dispute then the matter will be dealt with in accordance with the procedures provided for in UK law.

4) On 6 December 2019 a message was posted on the Employer’s intranet from the SVP, Controller and Chief Accounting Officer and the VP, Global CFO Business Transformation which referred to the launch of Finance for the Future (“F4F”). F4F was described as “an ambitious multi-year initiative to create a best-in-class finance organization that partners with the business to drive shareholder value”. The message announced the appointment of a new VP, Global Finance Transformation to lead the journey to F4F. He was described as:

… a seasoned, global business leader with work experiences focused on business transformation, shared services, and creating a culture of continuous improvement and process simplification. We believe his experiences position him well to lead our finance journey as we create a best-in-class organization that creates shareholder value through innovation, efficiency, agility, accountability and business partnership.

On 6 May 2020 a video conference via Microsoft Teams was held between the Employer and the EWC Limited Committee (the “Limited Committee”) at which the Employer gave a business update on how it had responded to Covid-19 and a briefing on F4F. Mr. Olivé Plaza is a member of the Limited Committee and he attended this conference for which translation/interpretation facilities were provided by a professional company called “VIVA VOCE Conference Consultants” (“Viva Voce”). There was a Powerpoint presentation which was shown as a screen share. At the bottom of the title page “European Works Council Introductory remarks” were the words “©2020 Walgreens Boots Alliance, Inc. All Rights reserved. Confidential and Proprietary information. For internal use only”. At the bottom of three of the four subsequent slides were the words “© 2019 Walgreen Co. All Rights Reserved. Walgreen Co. Proprietary and Confidential”. At the bottom of the title page of the briefing on F4F were the words “© 2019 Walgreen Co. All Rights Reserved. Walgreen Co. Proprietary and Confidential”. These words were repeated at the bottom of each of the six pages which followed ^{[footnote 3]}. The Powerpoint presentation was not provided to members of the Limited Committee in advance nor were they sent a copy afterwards.

5) On 9 July 2020 the Employer published its Fiscal 2020 Third Quarter Results. The Third Quarter Results Powerpoint slides included two references to F4F. The first was the statement “Selected Genpact as … [F4F] … strategic partner”. The second was the statement:

Last week, we selected Genpact as our long-term partner for our …[F4F] … program. This multiyear program will lead to improved cost, capability and controls and help drive improved business outcomes.

On 20 July 2020 Mr. Olivé Plaza sent a message in Spanish to members of the Spanish workforce relating to F4F via the Spanish App-System (Intranet).. In a letter dated 27 July 2020 the Employer informed Mr. Olivé Plaza that in accordance with Clause 14.1 of the Agreement he would be excluded from meetings of the EWC (Plenary and Limited Committee) going forward on the ground that he had shared information which was given to the Limited Committee on 6 May 2020 that was classified as confidential. On 28 July 2020 the Employer held a video conference with the Limited Committee, including Mr. Olivé Plaza, to “conclude” the exclusion of Mr. Olivé Plaza from future meetings ^{[footnote 4]}. Mr. Olivé Plaza denied the allegation against him. He asked for a meeting the following week with professional interpreters. The Employer rejected that request on the ground that the matter had been “resolved and concluded” by the Employer. The Employer held a further meeting with the Limited Committee to discuss Mr. Olivé Plaza’s exclusion on 27 August 2020. This was preceded by an internal meeting of the Limited Committee on 26 August 2020 for which translation/interpretation facilities were provided by the Employer.

4. The Complaint

6) The Complaint dated 8 October 2020 submitted to the CAC reads as follows:

The EWC raises complaints under Regulations 17 and 21 of the Transnational Information and Consultation of Employees Regulations 1999 as amended (“TICER”) in relation to the failure of Central Management to comply with the terms of the EWC Agreement namely through its permanent exclusion of Mr. Jaume Olivé Plaza from all future meetings with the Central Management. Specifically Central Management:

a) Did not have grounds to exclude Mr. Olivé Plaza from any further participation in WBAEWC1 meetings under … [Clause] 14.1; ^{[footnote 5]}

b) Has prevented and prevents Mr. Olivé Plaza, an elected employee representative from participating in the WBAEWC1 and attending actual and potential meetings as required under … [Clause] 2.2 (generally), … [Clause] 5 and [Clause] 9 (attendance at and participation in annual meetings), … [Clause] 10 (attendance at a pre-meeting), … [Clause] 11 (Extraordinary meetings) and has effectively removed an elected member of the WBAEWC1 duly elected under … [Clause] 7;

c) Has prevented and prevents the Limited Committee from being properly constituted with the 5 elected individuals allowed for and a member of the Limited Committee from being part of the duties of the Limited Committee as required under … [Clause] 8 of the EWC Agreement;

d) Has failed to provide all employee representatives with access to such facilities and equipment so as to enable them to communicate under … [Clause] 9.6 through its failure to provide adequate translation/interpreters services.

Mr. Jaume Olivé Plaza also seeks a declaration under Regulations 23 of TICER that it was not reasonable for Central Management to impose a requirement that the existence of the F4F project to be held in confidence (sic) and that disclosure of this information by him did not, or was not likely to, prejudice or cause serious harm to WBA and that it was not reasonable for the Central Management to require Mr. Olivé Plaza to hold that information in confidence.

Mr. Jaume Olivé Plaza also raises a complaint under Regulations 19A and 21A of TICER for the failure by Central Management to provide the means required to fulfil their duty to represent collectively the interests of employees, namely, Central Management’s failure to provide adequate translation/interpreters services.

In this decision we refer to a, b and c above collectively as the “exclusion complaints” and d and the complaint under TICER collectively as the “translation/interpretation” complaints. There are some events in the submissions which follow that are common to the two categories of complaints.

7) In relation to the exclusion complaints, the Complainants said that the video conference held on 6 May 2020 had been marked by serious technical problems, with partial loss of sound for some languages/interpreters and a poor internet connection to/from some interpreters or conference participants. The Complainants said that interpreters could not see the original presentation and were therefore not able to interpret in a satisfactory manner and that interpretation had been organized separately via mobile phone connections between one interpreter and one employee representative at a time rather than by a video link. The Complainants said that some parts of the video conference were completely lost due to audio failures and the non-English speaking employee representatives could only follow the content in fragments. The Complainants said that central management had alleged that they had made a request to keep all information from the meeting confidential but that as a result of the technical difficulties this had not been received in the same manner by all employee representatives in terms of clarity and language. Mr. Olivé Plaza, for whom the interpreter had to translate from English into Spanish, had understood that the content of the meeting should at that stage be treated with due care but it had not been clear to him that all the information about F4F should be kept confidential. The Complainant said that there had been no written communication from the Employer to the participants following the conference in which the requirement for confidentiality was specified so it was not clear to the employee representatives which points were possibly to be treated as “strictly confidential” or until what point in time any confidentiality was to apply. The Complainants said that it was also not possible for the employee representatives to have a follow-up meeting after the video conference since the Employer did not provide interpreters for this and for that reason, it was not possible for delegates to discuss the issue of confidentiality again or to clear up any misunderstandings which had arisen due to the technical inadequacies of the video conference.

8) The Complainants said that at the video conference with the Limited Committee on 28th July 2020, the Employer had referred to there being “publicly available information on the … F4F … transformation programme to employees (i.e. Q3 earning release and announcement of partnership with Genpact)” and that this demonstrated that information on the project was already known to the workforce and a breach of confidentiality could not therefore have occurred at that time. The Complainants said that on 30th July 2020 the Employer had presented draft minutes of the video conference of 6 May 2020, which it had produced alone and without the approval of the EWC. The Complainants said that, as almost three months had now passed, it was very difficult for the employee representatives to remember exactly what had been said but that parts of these draft minutes did not reflect the actual discussions and, in particular, some of the declarations on confidentiality clearly contradicted the notes that some delegates were able to make during the meeting. The Complainants said that the draft minutes were not correctly translated into all languages, were confusing, and that the translations had obviously not been done professionally. The Complainants said that, as a result of these discrepancies, these draft minutes had not yet been approved by the employee representatives.

9) The Complainants said that on 30 July 2020, the Employer had confirmed to the Limited Committee by email Mr. Olivé Plaza’s exclusion from the EWC and had arranged another meeting in August 2020 with the same translation company. The Complainants said that on 26 August 2020, for the first time, the Limited Committee had been allowed to hold a video conference without the Employer and with interpreters. The Complainants said that the timeframe provided had been very limited and that the meeting had to be ended prematurely when, in the middle of the discussions, the interpreters pointed out: “From now on our services will no longer be paid”. The Complainants said that on 27 August 2020 the Employer had held an extraordinary video conference with the Limited Committee to discuss once again the exclusion of Mr. Olivé Plaza. The Complainants said that the employee representatives had proposed that the future information policy between the EWC and the individual countries should be redesigned and a written communiqué sent that could be discussed and voted on in a binding manner. The Limited Committee had said that it was prepared to give a clear written commitment to this procedure in order to avoid situations like the one in Spain. In return, it was proposed that the decision to exclude Mr. Olivé Plaza from meetings with management should be reversed. The Limited Committee said that the Employer had rejected this proposal. The Complainants said that the Limited Committee had requested a mediation procedure in accordance with Clause 18.3 of the Agreement but that the Employer had rejected this proposal whereupon the Limited Committee said that it would complain to the CAC.

5. Summary of the Employer’s response to the Complaint

10) In its response to the Complaint dated 20 October 2020 the Employer said that it disputed each of the complaints and did not accept that there had been any breach of the Agreement or of TICER.

11) In relation to the exclusion complaints, the Employer said that it took the issue of confidentiality very seriously and that being able to share information confidentially with the EWC was a key pillar for the group to collaborate in a trustful manner, sharing and exchanging views at an early stage without them going to a wider population before any proposals were ready to be shared more widely. The Employer said that it was fully committed to open dialogue with the EWC and particularly with the Limited Committee and that in order to do this effectively it needed to have absolute trust that confidential information shared in these meetings would only be further transmitted at agreed times. The Employer referred to Clause 14 of the Agreement, which provides for the exclusion of an employee representative who had breached confidentiality, and Clause 7.11 allowing for substitutes to be nominated or elected per country and for the substitute to attend an EWC meeting where the elected representative was unavailable. The Employer said that article 8 of Directive 2009/38/EC (“the Directive”) and regulation 23 of TICER recognised the importance of an employer being able to share information confidentially for the effective operation of EWCs.

12) The Employer said that an interpreter service had been provided to all Limited Committee delegates to the meeting on 6 May 2020 by Viva Voce. The Employer acknowledged that there had been some technical issues at the outset of the meeting, but said that these had been quickly resolved, and the remainder of the meeting had been without issue. The Employer said that it did not accept that Mr. Olivé Plaza or any of the other employee representatives would have had technical difficulties preventing them from understanding the content of the F4F presentation, which had been introduced by Mr. Heim, then Management Chair of the EWC. The Employer said that at the time of the meeting the F4F project was still at an early stage of planning and aspects of the proposals remained strictly confidential. The Employer said that minutes of the meeting evidenced that Mr. Heim had informed the Limited Committee on two separate occasions that F4F was a confidential project and that information should be restricted to the Limited Committee only at this stage. The Employer said that it was normal practice for the Employer to issue such an instruction where the information was to be shared only with the Limited Committee and that the Employer considered that this was clear to all of the employee representatives. The Employer said that beyond the usual confidentiality obligations imposed by the Agreement and TICER, there was a clear additional focus on the confidentiality and sensitivity of this particular project and that, as such, members of the Limited Committee could not claim that there was any confusion about their obligations in relation to this matter. The Employer also said that Mr. Olivé Plaza was an experienced member of the Limited Committee with an awareness of the importance of confidentiality and that it was disingenuous for him to suggest that the absence of any follow- up meeting or communication from the Employer excused a breach of confidentiality particularly as this had never been the usual practice.

13) The Employer said that it had learned that on 20 July 2020 Mr. Olivé Plaza had shared information about F4F with Spanish employees of Alliance Healthcare (one of the companies governed by the EWC) via an email communication. The Employer said that this email had included information which had been shared confidentially with Mr. Olivé Plaza and the other members of the Limited Committee on 6 May 2020 and was a clear breach of his confidentiality obligations. The Employer said that Mr. Olivé Plaza had not sought approval from the Employer before he sent this communication. The Employer said that no other member of the Limited Committee had shared this information with anyone outside the group so it was clear that they understood the requirement for confidentiality. The Employer said that there was no requirement for it to write to the Limited Committee after the meeting to explain the need for confidentiality again; as Mr. Olivé Plaza would be aware, this had never been the practice in relation to these matters nor would it be practical for there to be a requirement to write after every meeting when the need for confidentiality had been made clear. The Employer also said that there was no requirement to arrange a follow- up meeting with the Limited Committee to discuss the issue of confidentiality again; the Employer reiterated that this had never been the practice nor would it be practical when the need for confidentiality had been made clear. The Employer said that, in any event, it had not received a request from the Limited Committee for them to have a follow- up meeting and that it would have been open to Mr. Olivé Plaza to contact Mr. Heim or other members of the Limited Committee directly over company email, telephone or video conference systems to seek clarity on their understanding of the scope of his confidentiality obligation.

14) The Employer said that as there was clear evidence, in the form of the email communication, that Mr. Olivé Plaza had knowingly and intentionally shared information which had been imparted in confidence, the Employer had considered that there was a proven breach of confidentiality of a very serious nature. The Employer said that after careful consideration of the breach and options available to Management, it was decided that, in accordance with the terms of Clause 14.1 of the Agreement, Mr. Olivé Plaza should be excluded from all future EWC and Limited Committee meetings and this had been communicated to Mr. Olivé Plaza in a letter dated 27 July 2020 from Mr. Heim. The Employer said that, given the importance of confidentiality both for protection of the business/employee relations and to enable trust and confidence for future engagement with the EWC, the Employer considered this measure to be appropriate and reasonable. The Employer said that Mr. Olivé Plaza remained a member of the EWC and the Limited Committee and remained entitled to time off and facilities in relation to these duties as appropriate. The Employer said that Mr. Olivé Plaza’s substitute was entitled to attend any meetings in his place and had done so. The Employer denied that Mr. Olivé Plaza’s exclusion had prevented any meetings of the EWC or the Limited Committee from being properly constituted.

15) The Employer said that following communication of his exclusion to Mr. Olivé Plaza, the Employer had arranged a meeting with the Limited Committee on 28 July 2020 to discuss the rationale for this decision and to allow the Limited Committee and Mr. Olivé Plaza to comment. The Employer disputed the Complainants’ submission that comments at that meeting had demonstrated that information on the F4F project was already known to the workforce at that time and that a breach of confidentiality could not therefore have occurred. The Employer said that the minutes of that meeting had made clear that Mr. Heim had said that

there is a mix of publicly available information on the … [F4F] … transformation programme to employees (i.e. Q3 earning release and announcement of partnership with Genpact) and confidential information to the EWC LC only. This information sent by Mr Jaume Olive Plaza to Spanish employees was classified as confidential from 06.05.20 EWC LC meeting and highlighted on several occasions by WBA management.

The Employer said that the Limited Committee had requested a copy of the minutes of the 6 May 2020 meeting and that a copy in English was shared with the Limited Committee on 28 July 2020, with translated copies (translated by the relevant country HR Directors) shared on 30 July 2020. The Employer said that those minutes had been taken by Simon Perry (HR Project Manager) who had attended the meeting and were a contemporaneous record of what was discussed. The Employer acknowledged that these minutes were not agreed with the Limited Committee before circulation and that they were not professionally translated but said that, as this was an ad hoc update meeting, it was not normal practice for formal minutes to be taken and agreed. The Employer said that, although the minutes were not (and were not intended to be) verbatim they were an accurate summary and the Employer denied that they did not reflect the actual discussions. The Employer said that it considered that the translations were sufficiently clear to allow representatives to understand the contents of the minutes.

16) The Employer said that Mr. Heim had sent a follow up email to the Limited Committee (including Mr. Olivé Plaza) on 30 July 2020 acknowledging the concerns raised about Mr. Olivé Plaza’s exclusion and informing the Limited Committee that he would arrange for another Limited Committee meeting to take place in August in order to discuss the matter further, pursuant to the dispute resolution procedure in clause 18.2 of the Agreement. This meeting had taken place on 27 August 2020. The Employer said that it had considered the request from the Limited Committee for a formal mediation procedure during this meeting but that it did not feel that this was appropriate given the nature and seriousness of the issue and the fact that the parties’ respective positions were quite far apart. The Employer said that it had also considered the Limited Committee’s request for a new information policy which could be discussed and voted on to avoid situations in the future but that, given that no other members of the Limited Committee had shared confidential information, Management did not believe that this was necessary.

17) In relation to the translation/interpretation complaints, the Employer said that it took its obligations under the Agreement very seriously but that it was also aware that Mr. Olivé Plaza spoke and understood English very well and that given his experience with the Limited Committee, it was not credible for him to suggest that interpretation issues gave any defence for a breach of confidentiality.

18) In relation to the pre-meeting which the Limited Committee had been able to conduct on 26 August 2020 the Employer said that this had been diarised for 2 hours 45 minutes so the Employer did not agree that the time frame was short. The Employer said that the Limited Committee had requested that the interpreters continue for an additional 15 minutes beyond the arranged time and that this request had been accepted by the interpreters. The Employer said that it understood that this was a professional and cordial exchange and the Employer did not accept that the meeting was ended prematurely in the middle of discussions as alleged.

19) More generally in relation to the translation/interpretation complaints, the Employer said that it did not accept any suggestion that there had been a failure to provide adequate translation / interpretation services. The Employer said that Viva Voce had provided services to the EWC for a long period without complaint. The Employer said that interpretation services were usually provided for the annual plenary session, formal consultation meetings and when requested by the EWC and agreed with the Employer. The Employer said that it had an open dialogue with the Limited Committee in relation to any issues that may arise in relation to matters such as facilities, time off and interpretation services and whilst it did not accept there had been a failure to provide adequate services in this regard, it was committed to discussing these with the Limited Committee if any issues arose in future. The Employer said that as part of a commitment to facilities, in September 2020 it had decided to move from the Microsoft Teams platform to Zoom for EWC meetings. The Employer said that, whilst this had an additional cost, it provided a specialist interpretation facility which allowed delegates to select a specific language and have the entire meeting interpreted professionally. The Employer said that this facility would continue to be provided by VIVA VOCE. The Employer said that the EWC had at all times been provided with the means required to fulfil their duty to represent collectively the interests of the employees they represented.

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

20) On 26 October 2020 the Case Manager copied the Employer’s response dated 20 October 2020 to the Complainants and invited the Complainants to make any observations they chose to make on that response. In a letter to the Case Manager dated 6 November 2020 the Complainants said that they did not accept that the technical issues at the outset of the meeting on 6 May 2020 were quickly resolved. The Complainants said that the technical problems were only perceptible for the non-English speaking conference participants and that the switch to a different software in September 2020 clearly demonstrated that management had identified problems and was seeking to resolve them. The Complainants also denied that Mr. Olivé Plaza spoke and understood English very well. The Complainants included the following comments by Mr. Olivé Plaza regarding his knowledge of English:

Although I believe that I can make myself understood relatively well in English, I often lack sufficient knowledge to express precisely the ideas that I want to communicate. Also, it is not always easy for me to fully understand someone who speaks in English, especially if it is a native speaker or if someone speaks quickly. There are many words or ideas that escape me. I only practice my English with my EWC colleagues, who are likewise mostly none-native (sic) speakers. I do not use English in my daily job and the company has never provided me with language training either. When I write in English, for example, emails, I usually rely on an automatic translator for assistance but, in any case, my biggest limitations are in listening.

The Complainants said that it should also be noted that in official discussions in the EWC, legal and economic terms are used which do not belong to the basic schoolbook English vocabulary.

21) The Complainants said that they contested the Employer’s contention that it had never been the Employer’s practice to write to the Limited Committee following a meeting to explain again the need for confidentiality. The Complainants said that on previous similar occasions, documents had been provided to members of the Limited Committee shortly before or after meetings clearly marked with a warning message “Private and Confidential”. This Complainants said that was not the case for the meeting of 6 May 2020, when it was only stated verbally that the content should be treated with due care, and that following this meeting the Employer did not send any written warning to the delegates which would have made the need for confidentiality clear.

22) The Complainants said that there was a contradiction between saying that Mr. Olivé Plaza would be excluded from all meetings of the EWC and the Limited Committee but that he remained a member of the EWC and the Limited Committee and entitled to time off and facilities in relation to these duties as appropriate. The Complainants asked how Mr. Olivé Plaza was supposed to perform these functions if management no longer wanted to talk to him? The Complainants said that this amounted to cancelling the result of a democratic election of employee representatives and that, if it were legal, it would leave the Employer free to choose the employee representatives it wished to consult. The Complainants said that Clause 14.1 of the Agreement was fundamentally incompatible with TICER and the Directive and that in the event of a breach of confidentiality, the Employer had the option of calling upon the CAC. The Complainants contested the Employer’s assertion that there had been a “proven breach” of confidentiality or any such breach and said that Mr. Olivé Plaza‘s communication had represented mere commentary on information already available to employees. The Complainants said that the Employer’s action was contrary to the basic principles of the Directive, which explicitly grants employee representatives the right to express opinions and protects them from any discrimination.

7. Summary of the parties’ answers to the questions raised by the Panel

23) The Case Manager’s letter to the Complainants dated 26 October 2020, in addition to inviting comments on the Employer’s response dated 20 October 2020, also asked the Complainants to answer a list of specific questions raised by the Panel. In a separate letter to the Employer dated 26 October 2020 the Employer was asked to answer a different set of questions. Each party was made aware of the questions that had been asked of the other. The questions raised, and the response of the respective party to those questions, are outlined below insofar as they do not breach the preservation of confidentiality set out in the preliminary note to this decision; other questions were asked by the Panel which have been omitted on that ground. The Complainants’ answers were provided in a letter to the Case Manager dated 6 November 2020. The Employer’s answers were provided in a letter to the Case Manager dated 9 November 2020.

8. Questions to the Complainants and the Complainants’ answers

24) The Employer has stated that no other member of the Limited Committee shared information about the F4F project with anyone outside the group so it is clear that they understood the requirement for confidentiality. Please comment specifically on this point.

The Complainants’ response under this heading reads as follows:

All members of the EWC and some members of the national works councils or trade unions were informed of the contents of the meeting held on 6 May 2020. On 10 May 2020, Mr. Olivé Plaza, in his capacity as Chairman of the Limited Committee, sent an email to all EWC members who are not members of the Limited Committee, giving a brief explanation of the content of the meeting held four days previously. The Dutch representative on the Limited Committee, who is also the Chairman of the Dutch Works Council, discussed the F4F project with the Secretary of the Dutch Works Council. In France there are four recognised trade unions in Alliance Healthcare. The French member of the Limited Committee discussed the F4F project with the delegates of the other three unions during an internal preparatory meeting of the French Central Works Council. In Germany, the German member of the Limited Committee gave a verbal report on the F4F project at a meeting of the German Central Works Council. The British delegate to the Limited Committee informed the head office of his union USDAW. No one gave specific details because no details were known.

Spain is the only country where the workforce has been directly informed. Information to the Spanish workforce via the Intranet is the only way for the European Works Council to reach all employees. In Spain - unlike for example in Germany or the Netherlands - there is not a works council covering the whole workforce. Some subsidiaries of Alliance Healthcare in Spain do have a local works council, but others do not. Spanish law makes no provisions for a Central Works Council which consequently does not exist at Alliance Healthcare. The selected means of communication on the Intranet is the subject of the reporting obligation in Regulation 19C: “A European Works Council shall inform the employees’ representatives … or to the extent that any employees are not represented by employees’ representatives, the employees themselves.

25) The Employer has stated that the Limited Committee’s meeting was diarised for 2 hours 45 minutes. How long, in your view, did this meeting last? Do you accept that the meeting went on for a further 15 minutes before the arranged time? ^{[footnote 6]}

The Complainants’ response to this question reads as follows:

The internal meeting held on 26 August 2020 had to end early because there was not enough time. The interpreters were kind enough to offer a 15-minute extension so as not to interrupt the discussions abruptly. One of the reasons for the need for a longer meeting is that between 17 March 2020 and 26 August 2020 there had been no possibility at all for the members of the Limited Committee to hold an internal meeting with interpreters. Before the start of the Coronavirus pandemic, the time for internal face-to-face preparatory meetings was always scheduled for at least half a day and not restricted to 2 hours 45 minutes (a 20 minute break per hour for the interpreters has still to be subtracted to calculate the actual time remaining for discussion).

In mid-March 2020, the EWC Academy was asked by the employee representatives for the first time to facilitate communication with all five delegates by means of short telephone and video conferences. Without this support, it would not have been possible, for example, to have a discussion with the French delegate at all because he hardly speaks a word of English. At one of these meetings, two consultants from the EWC Academy were even involved for interpretation. Although the EWC Academy consultants speak several languages, they do not have qualified training as simultaneous interpreters. It is also difficult to consult and interpret at the same time.

The employee representatives have no possibility of booking the VIVA VOCE interpreting agency independently. In order to draw attention to the problem, an estimate of the cost of professional interpreting assistance was therefore submitted to Central Management on 28 July 2020. Central management rejected the proposed estimate and was not willing to book any interpretation with VIVA VOCE either. It was not until 26 August 2020, the first time since 17 March 2020, that Central Management were prepared to provide interpretation support again for an internal meeting of employee representatives. On 3 November 2020, a video conference was convened by Central Management with the members of the Limited Committee (again without Mr. Olivé Plaza) to prepare for the next plenary session. No interpretation support was provided at all during this videoconference.

9. Questions to the Employer and the Employer’s answers

26) The Complainant has stated that the interpreters could not see the original presentation. Do you dispute this? Please also comment in greater detail on the other remarks made by the Complainant in paragraph 5 of the Complaint about the technical methods used to deliver the video conference.

The Employer’s response under this heading reads as follows:

a) The role of the interpreters is to interpret what is being said, rather than what is being shown on screen. In any event, VIVA VOCE were issued with a copy of the presentation in advance to support interpretation services provided during the meeting This is normal practice. VIVA VOCE are subject to clear confidentiality requirements as part of their engagement… We have also been informed by VIVA VOCE that all of their interpreters are members of the International Association of Conference Interpreters (AIIC) and they have to abide by a professional code of conduct and ethics (which includes confidentiality).

b) It is agreed that each EWC Limited Committee delegate had a separate mobile phone connection with the language interpreter for bespoke translation.

c) There was no issue raised during or after the meeting in relation to the quality of the translation service or any items relating to the presentation that needed clarifying. Subsequent meetings in relation to other matters took place on 4 June 2020 and 13 July 2020 and the quality of translation at the May meeting was not raised at either of them. This issue was only raised for the first time by Mr. Olivé Plaza on 5 August 2020 after the decision to exclude him was communicated.

d) It has already been acknowledged that there were some technical issues at the outset of the meeting, but these were quickly resolved. Some delegates mentioned poor internet connection which interrupted their connection to Microsoft Teams and others mentioned poor telephone signal with interpreters. After these initial issues, the meeting continued without any delegate reporting further issues and with participation and engagement from the Limited Committee. As such, Management does not agree with the allegations that there were “serious technical problems” or that the interpreters could not view the presentation.

e) Management does not accept that Mr. Olivé Plaza or any of the other employee representatives would have had technical difficulties preventing them from understanding the content of the F4F presentation. The minutes reflect that Mr. Olivé Plaza actively participated by raising comments in relation to the presentation.

f) As previously submitted, Mr. Olivé Plaza is an experienced member of the Limited Committee with an awareness of the importance of confidentiality in any employee consultation. Management is also aware that he speaks and understand English very well. Given Mr. Olivé Plaza’s experience with the Limited Committee, it is not credible for him to suggest that any interpretation issues give a defence for a breach of confidentiality.

27) You state that Viva Voce have provided services to WBAEWC1 for a long period without complaint. Were those services provided solely in relation to meetings in person in the past? Do you accept that different issues may arise in relation to translation/interpretation services for virtual meetings?

The Employer’s response to these questions reads as follows:

a) We have previously used VIVA VOCE for EWC meetings in person and we also used them for a virtual meeting on 17 March 2020 as well as recent virtual meetings in September and October 2020. VIVA VOCE are an experienced company ….

b) It is acknowledged that virtual meetings have the potential to create different issues but that has not happened in practice with our virtual meetings using VIVA VOCE. Management has discussed these issues with VIVA VOCE and they have raised no concerns in relation to technical issues. The Limited Committee have worked closely with VIVA VOCE for a long time and Management understands that the Limited Committee have not raised any concerns directly with them.

28) You state that the minutes of the 6 May 2020 meeting were shared with the Limited Committee on 28 July 2020. When were these minutes compiled? Is there a recording of the meeting available?

The Employer’s response to these questions reads as follows:

a) Handwritten minutes were taken at the meeting and these were typed up within a few days of the meeting taking place and circulated to Management. As per normal practice, they were finalised following additional comments from the Management participants before they were shared with the Limited Committee.

b) There is no recording of this meeting as it was hosted on Microsoft Teams. Since the introduction of Zoom, formal meetings are now recorded.

29) You state that Mr Heim informed the Limited Committee on two separate occasions that F4F was a confidential project. You also stated that the classification of information from the meeting of 6 May 2020 as confidential was highlighted on several occasions by WBA management. Please explain this discrepancy.

The Employer’s response under this heading reads as follows:

a) Mr Heim informed the Limited Committee on two separate occasions during the meeting of 6 May 2020 that F4F was a confidential project. This is reflected in the minutes of the meeting.

b) This was highlighted again by Mr Heim in additional meetings with the Limited Committee. These meetings took place on 4 June 2020 and 13 July 2020. The purpose of these meetings was to discuss COVID-19, safety and business performance. The topic of F4F was raised informally at both meetings and Mr Heim confirmed on both occasions that this remained confidential … No formal minutes were taken of these meetings.

10. The hearing

30) Both parties expressed a willingness to attend an informal meeting with the Panel Chair to establish whether there were any ways in which the parties could be assisted in resolving the issues in dispute. This meeting took place on 14 December 2020. As it did not prove possible to reach an agreement the Panel decided to hold a formal hearing. A virtual hearing was held on 4 March 2021 and the names of those who attended the virtual hearing are listed in the appendix to this decision. Both parties provided statements of case which were exchanged, and submitted to the Panel together with a bundle of documents agreed by the parties, in advance of the hearing. The Panel’s decision on each of the complaints has been taken after full and careful consideration of the views of both parties as set out in their written submissions and amplified at the hearing and of all the other material adduced in evidence.

11. The conduct of the hearing

31) In an email to the Case Manager dated 2 March 2021 the Employer made an application to the CAC for the hearing to be held in private on the ground that the information that was the subject of the hearing remained confidential. This email was copied to the EWC and to the Panel and the EWC was invited to express a view on this application. At the beginning of the hearing the EWC said that it had no objection to the hearing being conducted in private. Having considered all the circumstances the Panel Chair informed the parties that the hearing would be held in private and members of the public in attendance were required to leave.

32) The Panel would like to thank the parties for the courtesy and patience with which they conducted the hearing. The Panel would also like to make clear that, although individuals who participated in the hearing differed in their accounts of some events, the Panel considered that all those individuals were credible and gave their evidence honestly and in good faith. In answers to questions from the Panel Chair, both parties confirmed at the conclusion of the hearing that the hearing had been fairly conducted and that they had had the opportunity to say everything that they had wished to say.

12. The structure of this decision

33) The Panel Chair said that the complaints and the submissions relating to them fell into three broad categories:

• the exclusion complaints;

• the application for a declaration under regulation 23 of TICER;

• the translation/interpretation complaints.

The Panel Chair said that each of these categories would be dealt with in a self-contained manner at the hearing so that the parties would be invited to make submissions and to sum up on each of the categories individually. This structure is replicated in this decision, and the Panel’s decisions on each category of complaints are recorded at the end of the category to which they belong. The Panel’s decisions are also summarised at the end of the decision itself followed by the terms of the Order made by the CAC.

13. Matters clarified at the start of the hearing

The relevance of the Complainants’ further submissions

34) The Panel Chair said that the Panel had noted that the Complainants had referred in their submissions provided for the purposes of the hearing to two cases in respect of which the full judgment had not been provided ^{[footnote 7]} and an EU Directive relating to trade secrets. ^{[footnote 8]} The Panel Chair said that the Panel did not consider these sources to be material to the issues before the Panel and it did not wish to hear submissions on them.

The scope and length of Mr. Olivé Plaza’s exclusion from the EWC and the Limited Committee

35) The Employer confirmed that Mr. Olivé Plaza remained a member of the EWC and the Limited Committee and remained entitled to time off and facilities in relation to these duties as appropriate. The Employer said that Mr. Olivé Plaza was entitled to attend pre-meetings of the EWC and Limited Committee but was not permitted to attend meetings with the Employer, which were attended instead by his substitute. The Complainants said that Mr. Olivé Plaza had not been invited to attend the pre-meeting of the plenary EWC. The Employer said that this was because the pre-meeting of the plenary EWC was seen as part of the plenary event as a whole. The Employer said that both Mr. Olivé Plaza and his substitute could attend pre-meetings of the Limited Committee but Mr. Olivé Plaza said that his substitute had been told she could not attend such meetings. The Panel did not regard this disputed point as material to the issues before it and did not, therefore, investigate the matter further. At a later stage of the hearing the Employer confirmed that there was no time-limit placed on Mr. Olivé Plaza’s exclusion from the EWC. The Complainants said that the Employer had imposed a lifelong penalty on Mr. Olivé Plaza, who was the elected spokesperson for the EWC. The Complainants said that there was nothing in the Directive which allowed for first and second class members of the EWC; a representative was either excluded or not excluded from membership. In response the Employer said that it was being criticised for not excluding Mr. Olivé Plaza completely.

14. The exclusion complaints

Summary of the Complainants’ submissions

36) The Complainants said that there had been many communication problems in relation to the meeting on 6 May 2020. The Complainants said that the German delegation had experienced problems with the internet connection and there had been communication difficulties throughout the meeting, not only at the beginning as the Employer had contended. The Complainants said that they had nevertheless done their best to go ahead with the meeting. The Complainants said that a British colleague had emailed to say that he had his communication cut off during the meeting.

37) Mr. Olivé Plaza said that it had not been made clear that the content of the meeting was strictly confidential. He had taken notes at the meeting and had understood that there were certain matters only that should be treated with due care. Mr. Olivé Plaza said that information about the F4F project had been in the public domain for weeks as a result of what had appeared on the Employer’s intranet on 6 December 2019. Mr. Olivé Plaza said that he understood that the Employer had initially wanted to have the meeting about F4F with the whole EWC and drew attention to the reference to the EWC on the Powerpoint slide headed “Purpose” which stated “The purpose of this presentation is to provide the EWC with an early and high level overview of the background of a new initiative ….” Mr. Olivé Plaza said that, unlike countries where there was a central works council from which information could be cascaded, in Spain there were union representatives in only some of the Employer’s 26 workplaces across the country; in others there were none. Mr. Olivé Plaza said that he had communicated with the Spanish workforce through the means provided by the Employer; until June this had been via their work email addresses, since then employee representatives had been told to use an internal App system instead. Mr. Olivé Plaza said that he had waited until July before communicating with the workforce in Spain because he was waiting for more details about the project but had then thought that he had a duty to give the workforce some information. Mr. Vieth said that he had been surprised by the Employer’s desire for confidentiality at the meeting given what was already known by the workforce in Germany.

38) The Complainants said that the meeting on 6 May 2020 was the first ever meeting where employee representatives had not been given documents before or after a meeting. Mr. Olivé Plaza said that warnings about confidentiality used to be very clear, in the form of email headings or red stamps on documents, for example. He said that he had no recollection of seeing anything on any Powerpoint slide which said confidential on it. He said that he had viewed the presentation on a small laptop. Mr. Olivé Plaza said that there were no minutes of the meeting of 6 May 2020; a document had been written by the Employer without the EWC’s agreement and submitted three months after the meeting, after he had been excluded from the EWC. In answer to a statement from the Employer that he seemed to be alleging fraud on the part of the Employer, Mr. Olivé Plaza said that he was not saying that the minutes had been concocted by the Employer but that they had been compiled by the Employer and did not reflect an agreement with the EWC.

39) The Complainants asked whether the Employer could be a judge of whether there was a “proven breach” of confidentiality under Clause 14.1. The Complainants said that a power to act unilaterally under Clause 14.1, as the Employer had done here, put all the power in the hands of the Employer. Mr. Olivé Plaza said that he categorically denied that he had knowingly and intentionally breached confidentiality. He said that, had he been aware that the information was sensitive or confidential, he would not have shared it but as it was he thought that he was fulfilling his role as an employee representative.

15. Summary of the Employer’s submissions

40) The Employer said that the meeting with the Limited Committee on 6 May 2020 was informal; the Employer had not been under a duty to inform and consult but was trying to be proactive and foster a positive relationship with a limited number of people by giving them a ‘heads-up’ about the project. The Employer denied Mr. Olivé Plaza’s assertion that it had initially wanted to have the meeting with the whole EWC, stating that the information shared with the Limited Committee had only ever been intended to be for the Limited Committee alone. The Employer said that it had intended to share information with the full EWC at a later date and had not been aware at the time that the contents of the meeting had been disclosed to the full EWC by the Limited Committee on 10 May 2020. The Panel referred to the Complainants’ statement in paragraph 24 above that the contents of the meeting had been shared by other members of the Limited Committee with national works councils and trade unions as well as with other EWC members and asked the Employer to explain why it had taken action in relation to Mr. Olivé Plaza’s communication but not those of other Limited Committee members. The Employer said that sharing information with national works councils and trade unions was a world apart from informing the entirety of the workforce and was qualitatively different. The Employer said that there was no evidence as to whether information had in fact been shared with national works councils or trade unions and that its decision not to pursue the matter was a pragmatic response. The Employer said that there was no requirement to show that Mr. Olivé Plaza’s disclosure had caused any detriment for there to be a breach of confidentiality under Clause 14.1 although it also said that his disclosure had caused the Employer difficulties with some of its Spanish workforce.

41) The Employer exhibited a letter to Mr. Perry from Ms. Geddes of Viva Voce dated 12 February 2021 which said that Microsoft Teams, which had been used for the meeting on 6 May 2020, was not suitable for multilingual meetings: each interpreter had had to listen to what was being said on Teams and translate simultaneously to their delegate over a telephone line. Ms Geddes said that her recollection was that shortly after the meeting started something went wrong with the mobile phone her organisation had been given for the German delegate and there were a few messages to organise a new number so the interpreter could call him back. This had meant that there was an interruption for the German translation that had lasted a few minutes but it had then resumed so the German delegate would have missed “a bit” of the presentation by the Employer. Ms. Geddes said that the other languages had not suffered any disruption. The Employer reiterated that no further issues or concerns had been raised during the May meeting. The Employer said that the issue of technical difficulties in the May meeting had not been raised in the two subsequent meetings, on 4 June 2020 and 13 July 2020, and had been raised only on 5 August 2020 after Mr. Olivé Plaza had been excluded from future meetings. The Employer said that Mr. Olivé Plaza did not raise any concerns or make this allegation in the follow-up meeting on 28 July 2020. He had complained about a lack of translators for the July meeting but had raised no concerns about the May meeting; indeed, his ability to contribute and participate in the July meeting indicated that his level of English was significant. The Employer said that it was plain that there were no significant difficulties in communication during the part of the May meeting concerned with F4F given that the minutes showed that three members of the Limited Committee, including Mr. Olivé Plaza, had contributed to the F4F discussions. The Employer said that Mr. Olivé Plaza’s position that he did not hear or understand Mr. Heim say that the F4F proposal was confidential was untenable. The Employer said that it was simply disingenuous to suggest that Mr. Olivé Plaza did not know that the information was confidential because there was no written follow-up after the meeting; it was printed on the slides and addressed orally in the meeting. The Employer said that Mr. Vieth had clearly acknowledged at the hearing that he had understood that the content of the meeting was confidential.

42) The Employer said that the Powerpoint presentation which had accompanied Mr. Heim’s introduction to the F4F proposal had been provided to the translators in advance. It had also been shown as a screen share. The Employer said that at the bottom of each page of the Powerpoint presentation was stated “Proprietary and confidential information. For internal use only” ^{[footnote 9]} and it was wrong of the Complainants to suggest that this was in any way different to previous meetings where material was marked “Private and confidential”. The Employer said that these slides had not been shared with the Limited Committee before or after the meeting because of their confidential nature. The Employer said that it had been made clear, expressly, by Mr. Heim at the meeting on 6 May 2020 that the contents of the presentation were confidential. The Employer said that the minutes recorded that Mr. Heim had stated twice that it was a confidential project and that information should be restricted to the Limited Committee at that stage. The Employer exhibited a copy of the minutes. The Employer acknowledged that the minutes of the meeting had not been agreed but said that there was no basis whatsoever for suggesting that they were inaccurate and that Mr. Perry had confirmed in his witness statement that they were accurate. In answers to questions from the Panel, Mr. Perry said that the minutes had been finalised within a week or two of the meeting. He said that as this was an informal meeting there was no requirement to share these minutes with the Limited Committee; they were purely for internal management purposes. Mr. Merlino said that the EWC had not challenged the minutes at the time. The Employer also drew attention to Mr. Perry’s witness statement in which he said that he recalled that F4F had been raised informally at meetings of the Limited Committee on 4 June 2020 and 13 July 2020 which had been called in relation to other matters and that Mr. Heim had confirmed on both occasions that F4F remained confidential. Mr. Perry’s witness statement states that no formal minutes were taken of the meetings on 4 June 2020 or 13 July 2020.

43) The Employer drew attention to the respects in which it submitted Mr. Olivé Plaza’s disclosure had gone beyond the contents of the Intranet message of 6 December 2019 and the information in the Third Quarter Results Powerpoint on 9 July 2020.

44) The Employer said that it was clear that there was a “proven breach” of confidentiality for the purposes of Clause 14.1 in this case and that there was nothing more to explore. Mr. Heim’s witness statement referred to “clear evidence, in the form of the email communication, that Mr. Olivé Plaza had knowingly and intentionally shared information which had been imparted in confidence”. In answer to a question from the Panel the Employer said that it may be appropriate for the Employer to conduct an investigation in the event of an alleged oral breach of confidentiality where there was a dispute over what had been said but submitted that the Panel should be cautious about implying any procedural requirements into Clause 14.1. The Employer said that if the Panel was considering implying a formal procedure into Clause 14.1 it would need to ask whether compliance with any such procedure would have been utterly futile in this case. The Employer said that there were clear written documents in the form of the Powerpoint slides and Mr. Olivé Plaza’s message of 20 July 2020. The Employer pointed to evidence before the Panel from a range of sources confirming that the contents of the meeting on 6 May 2020 were confidential: the Powerpoint slides; the minutes of the meeting; the witness statements of Mr. Heim and Mr. Perry; and Mr. Vieth’s statement at the hearing which showed that he understood that the matter was to be kept confidential. The Employer said that it was not open to the Panel to decide whether the Employer’s refusal to engage in any form of third party assistance constituted a breach of Clause 18.3 of the Agreement as the Complainant had not raised that matter in its initial complaint.

16. Considerations

45) The first task for the Panel is to decide whether the contents of Mr. Olivé Plaza’s communication with the Spanish workforce on 20 July 2020 contained information which was not contained in the message on the Employer’s intranet on 6 December 2019 or the Third Quarter Results Powerpoint of 9 July 2020. The Panel has examined these documents carefully and is satisfied that Mr. Olivé Plaza’s communication contained information that went beyond the information contained in those other documents.

46) The Complainants have submitted that the Employer did not have grounds to exclude Mr. Olivé Plaza from any further participation in EWC meetings under Clause 14.1 of the Agreement. Clause 14.1 reads as follows:

1) The parties are agreed that the WBAEWC1 shall operate in an environment which encourages the free exchange of views and opinions between the parties. In order to support this all employee representatives attending WBAEWC1 meetings agree not to misuse or divulge confidential information. This obligation continues after the conclusion, for whatever reasons, of employee representatives’ terms of office or employment, for as long as the information remains confidential, as deemed by WBA. Any proven breach of this provision will lead to the individual employee representative being excluded from any further participation in WBAEWC1 meetings and will be viewed as a serious offence and dealt with in accordance with national and/or local laws and procedures in the representative’s country of employment.

In his witness statement Mr. Heim said the following:

In light of the actions of Mr. Olivé Plaza we seriously considered potential next steps. I discussed this with other members of the management team. As there was clear evidence, in the form of the email communication, that Mr. Olivé Plaza had knowingly and intentionally shared information which had been imparted in confidence, Management considered that there was a proven breach of confidentiality of a very serious nature.

The Panel has no doubt that Mr. Heim and other relevant Employer representatives regarded the information shared by Mr. Olivé Plaza with the Spanish workforce as confidential. The Panel also acknowledges that the Employer genuinely believed that it had made the confidentiality of this information clear to the Limited Committee. The next question which the Panel is required to address is whether, on the basis of the evidence before it, the Panel considers that the Employer had in fact made clear to members of the Limited Committee that the information which was given to them at the meeting on 6 May 2020 was confidential so as to attract the obligation under Clause 14.1 of the Agreement.

47) The Employer contended that the Powerpoint slides which accompanied the presentation made clear that the information was confidential. The Employer said that at the bottom of each page of the Powerpoint presentation was the statement “Proprietary and confidential information. For internal use only”. The Panel has examined the printed copies of the slides provided to it in the bundle agreed by the parties. In those copies, at the bottom of the title page “European Works Council Introductory remarks” were the words “©2020 Walgreens Boots Alliance, Inc. All Rights reserved. Confidential and Proprietary information. For internal use only”. At the bottom of three of the four subsequent slides were the words “© 2019 Walgreen Co. All Rights Reserved. Walgreen Co. Proprietary and Confidential”. At the bottom of the title page of the briefing on F4F were the words “© 2019 Walgreen Co. All Rights Reserved. Walgreen Co. Proprietary and Confidential”. These words were repeated at the bottom of each of the six pages relating to F4F which followed. On the printed copies before the Panel these words were in a very small font. At the hearing the Employer displayed a copy of a sample slide on a screen to the Panel in which the words appeared in a larger format, although still smaller than the bullet points relating to F4F on which it could be anticipated members of the Limited Committee would focus their attention. Having examined both the printed copies and the sample screen version, the Panel does not consider that these words in the format they appeared on the slide would be sufficient in themselves to place those viewing them on notice that the substantive material displayed on the slide, to which much greater prominence was given, was confidential. This is sufficient to dispose of the Employer’s submission that the slides made clear that the material was confidential and is the basis for the Panel’s conclusion on this point. However the Panel further notes that the standard wording “© 2019 Walgreen Co. All Rights Reserved. Walgreen Co. Proprietary and Confidential” which appeared at the bottom of the slides relating to F4F also appeared in the same sized type on the preceding slides relating to the Covid-19 update, including those consisting of photographs of a drugstore and a Covid testing centre. This lack of differentiation reinforces the Panel’s conclusion that insufficient prominence was given to the requirement of confidentiality on the slides relating to F4F for the Employer to ensure that those viewing them would be aware that the information they contained was subject to the obligation under Clause 14.1 of the Agreement..

48) It was common ground between the parties that members of the Limited Committee did not receive any form of written confirmation from the Employer immediately before or after the meeting on 6 May 2020 that the information shared at that meeting was confidential. The Employer’s minutes of that meeting were provided to members of the Limited Committee in English on 28 July 2020 and in translation on 30 July 2020. However Mr. Olivé Plaza’s communication to the Spanish workforce was dated 20 July 2020 and he could not, therefore, take account of anything contained in those minutes.

49) The Employer drew attention to the witness statements of Mr. Perry and Mr. Heim both of which state that the confidentiality of the information shared on 6 May 2020 was clearly communicated to the Limited Committee. The Employer also emphasised the statement of Mr. Vieth at the hearing that he had understood that the Employer had said that the information was confidential. The Panel has examined the evidence before it carefully and has concluded, on the balance of probabilities, that the Employer did not adequately communicate the confidentiality obligation it was seeking to impose and on which it has relied in its response to Mr. Olivé Plaza’s communication. First, the documentation supplied by the Employer itself lacks consistency on this point. In the minutes of the meeting on 6 May 2020 compiled by the Employer Mr. Heim refers to the project being confidential and information being restricted to the Limited Committee only. ^{[footnote 10]} However the Powerpoint slide headed “Purpose” begins “The purpose of this presentation is to provide the EWC (emphasis added) with an early and high level overview of the background of a new initiative ….” The Panel considers that readers of that slide would be likely to conclude that information could be shared with other EWC members at least. Secondly the Panel notes the actions that the Complainants said had been taken by members of the Limited Committee following the meeting. These were set out in the Complainants’ letter of 6 November 2020 as follows:

All members of the EWC and some members of the national works councils or trade unions were informed of the contents of the meeting held on 6 May 2020. On 10 May 2020, Mr. Olivé Plaza, in his capacity as Chairman of the Limited Committee, sent an email to all EWC members who are not members of the Limited Committee, giving a brief explanation of the content of the meeting held four days previously. The Dutch representative on the Limited Committee, who is also the Chairman of the Dutch Works Council, discussed the F4F project with the Secretary of the Dutch Works Council. In France there are four recognised trade unions in Alliance Healthcare. The French member of the Limited Committee discussed the F4F project with the delegates of the other three unions during an internal preparatory meeting of the French Central Works Council. In Germany, the German member of the Limited Committee gave a verbal report on the F4F project at a meeting of the German Central Works Council. The British delegate to the Limited Committee informed the head office of his union USDAW. No one gave specific details because no details were known.

It seems clear from this account that members of the Limited Committee had not received the message that the Employer had sought to deliver about the information being confidential to the Limited Committee. The Employer said at the hearing that there was no evidence that information had in fact been shared to the extent described by the Complainants. The Panel notes that the Employer did not seek to challenge the Complainants’ account of what members of the Limited Committee had done in the Employer’s written submissions provided in advance of the hearing; had it done so the Complainants would have had the opportunity to counter any such challenge at the hearing. On the basis of the evidence before it the Panel has no reason to believe that the Complainants’ account of the actions of members of the Limited Committee is inaccurate.

50) The Employer submitted that the sharing of information by other members of the Limited Committee to national works councils and trade unions was irrelevant to Mr. Olivé Plaza’s situation because he had shared information with individual workers which was a much more serious matter. The Panel considers that the actions of other members of the Limited Committee are relevant in showing that no clear message about the information being confidential or the extent of any such confidentiality had been communicated to the Limited Committee by the Employer. The Complainants described why Mr. Olivé Plaza had shared information directly with the workforce in the following terms:

Spain is the only country where the workforce has been directly informed. Information to the Spanish workforce via the Intranet is the only way for the European Works Council to reach all employees. In Spain - unlike for example in Germany or the Netherlands - there is not a works council covering the whole workforce. Some subsidiaries of Alliance Healthcare in Spain do have a local works council, but others do not. Spanish law makes no provisions for a Central Works Council which consequently does not exist at Alliance Healthcare. The selected means of communication on the Intranet is the subject of the reporting obligation in Regulation 19C: “A European Works Council shall inform the employees’ representatives … or to the extent that any employees are not represented by employees’ representatives, the employees themselves”.

The Panel accepts that the reference to regulation 19C of TICER in the final sentence is incomplete in that 19C is referring specifically to informing employees of “the content and outcome of the information and consultation procedure carried out in accordance with these Regulations” and regulation 19C is inapplicable in this context because the meeting on 6 May 2020 did not fall within that procedure. The earlier part of the paragraph does, however, explain the industrial relations structures which would entail Mr. Olivé Plaza’s being accustomed to communicating directly with the Spanish workforce on EWC matters rather than with a works council or trade unions. This description by the Complainants of the industrial relations structures in Spain was not challenged by the Employer.

51) For the reasons given in paragraphs 49 and 50 above the Panel has concluded, on the balance of probabilities, that the Employer did not adequately communicate the confidentiality obligation it was seeking to impose and on which it has relied in its response to Mr. Olivé Plaza’s communication. The Panel has therefore concluded that the Employer was not entitled to rely on Clause 14.1 to exclude Mr. Olivé Plaza from the EWC and the Limited Committee and the complaint that the Employer did not have grounds to exclude Mr. Olivé Plaza from any further participation in EWC meetings under Clause 14.1 of the Agreement is well-founded.

52) The Complainants brought two further complaints under regulation 21 of TICER relating to the exclusion of Mr. Olivé Plaza from meetings of the EWC and Limited Committee. The first was that the Employer

Has prevented and prevents Mr. Olivé Plaza, an elected employee representative from participating in the WBAEWC1 and attending actual and potential meetings as required under … [Clause] 2.2 (generally), … [Clause] 5 and … [Clause] 9 (attendance at and participation in annual meetings), … [Clause] 10 (attendance at a pre-meeting), … [Clause] 11 (Extraordinary meetings) and has effectively removed an elected member of the WBAEWC1 duly elected under … [Clause] 7.

The complaint to the CAC was dated 8 October 2020. On that date regulation 21 of TICER provided so far as material as follows:

(1) Where –

(a) a European Works Council … has been established under regulation 17 …

a complaint may be presented to the CAC by a relevant applicant where paragraph (1A) applies.

(1A) This paragraph applies where a relevant applicant considers that, because of the failure of a defaulter,

(a) the terms of the agreement under regulation 17 …have not been complied with …

(1B) A complaint brought under paragraph (1) must be brought within a period of six months beginning with the date of the alleged failure or non-compliance.

(2) In this regulation, “failure” means an act or omission …”

The Panel considers that the wording of regulation 21(1A)(a) - that “the terms of the agreement … have not been complied with” - means that the breach of the Agreement must already have occurred for a complaint to be made under regulation 21. The Panel is unable, therefore, to consider a complaint that Mr. Olivé Plaza will be excluded from future or “potential” meetings. The Panel has considered carefully whether, at the date of the complaint, the action taken against Mr. Olivé Plaza by the Employer under Clause 14.1 of the Agreement resulted in breaches of the individual clauses listed by the Complainants. Its conclusions are as follows:

(i) Clause 2.2: This clause states that the parties shall participate in the EWC in good faith. It then sets out the general principles that govern the relationship between the parties. The Panel does not consider that Clause 2.2 gives Mr. Olivé Plaza the right to participate in the EWC

(ii) Clauses 5 and 9: These clauses relate to the framework and scope of the EWC (Clause 5) and the operation of the annual EWC meeting (Clause 9). The annual meeting from which Mr. Olivé Plaza was excluded had not taken place at the date of the complaint. The Panel is unable, therefore, to consider this element of the complaint.

(iii) Clause 10: This clause relates to attendance at pre-meetings. The evidence recorded in paragraph 35 above is that Mr. Olivé Plaza had been permitted to attend pre-meetings of the Limited Committee but had been excluded from the pre-meeting at the annual plenary meeting. The plenary meeting took place after the date of the complaint and the Panel is unable to consider that element of the complaint.

(iv) Clause 11: This clause relates to extraordinary meetings. The Panel has no evidence that any extraordinary meetings took place between 27 July 2020, the date of Mr. Olivé Plaza’s exclusion, and 8 October 2020, the date of the complaint. The Panel is unable, therefore, to find that this element of the complaint is well-founded.

(v) Clause 7: This deals with the appointment of employee representatives. Clause 7 does not expressly state that elected representatives have the right to attend meetings of the EWC. It is arguable that this may be implied from Clause 7.11 (the arrangements for substitutes, set out in paragraph 3 above). However as the Panel has no evidence that the EWC met during the period 27 July 2020 – 8 October 2020 the Panel is not required to make a determination on this point.

For the reasons set out above the Panel has decided that this complaint is not well-founded.

53) The final complaint within the category of the exclusion complaints states that the Employer

has prevented and prevents the Limited Committee from being properly constituted with the 5 elected individuals allowed for and a member of the Limited Committee from being part of the duties of the Limited Committee as required under … [Clause] 8 of the EWC Agreement.

Clause 8.1 and 8.2 of the Agreement read as follows:

1) At the first annual WBAEWC1 meeting immediately following the 4-yearly election, the employee representatives will elect 5 of their members to act as employee representative co-ordinators (“The Limited Committee”) who will come from different countries. The co-ordinators must come from different countries, and one of them must be from the UK.

2) A substitute Limited Committee member will also be appointed from among the members of the WBAEWC1 to act on behalf of a specific elected Limited Committee member in the event that he/she is unable to attend any formal meeting. In the circumstances that a substitute member attends in this capacity they shall assume the full authority of the absent Limited Committee member for that meeting.

As explained in paragraph 35 above, a substitute for Mr. Olivé Plaza has attended Limited Committee meetings in his place on the ground that Mr. Olivé Plaza has been “unable to attend”. The Panel has considered carefully whether the fact that Mr. Olivé Plaza was unable to attend owing to his exclusion in breach of Clause 14.1 means that the Limited Committee was not properly constituted. The Agreement does not expressly address this question and the matter is not free from doubt. Having considered the matter carefully the Panel considers that allowing the Employer to exclude an individual member of the Limited Committee in breach of the Agreement would, effectively, allow the Employer to choose between that member and the member’s substitute according to its preference. For that reason the Panel has decided that, on the balance of probabilities, this complaint is well- founded.

17. Decisions

54) The Panel’s decisions on the exclusion category of complaints are as follows:

The complaint that the Employer did not have grounds to exclude Mr. Olivé Plaza from any further participation in EWC meetings (Plenary and Limited Committee) under Clause 14.1 of the Agreement is well-founded.

The complaint that the Employer has prevented and prevents Mr. Olivé Plaza, an elected employee representative from participating in the EWC and attending actual and potential meetings as required under Clause 2.2 (generally), Clause 5 and Clause 9 (attendance at and participation in annual meetings), Clause 10 (attendance at a pre-meeting), Clause 11 (Extraordinary meetings) and has effectively removed an elected member of the EWC duly elected under Clause 7 is not well- founded.

The complaint that the Employer has prevented the Limited Committee from being properly constituted with the five elected individuals allowed for and a member of the Limited Committee from being part of the duties of the Limited Committee as required under Clause 8 of the Agreement is well-founded.

18. Order

55) Regulation 21(4) of TICER as it stood on the date of the complaint provides that:

Where the CAC finds the complaint well-founded it shall make a decision to that effect and may make an order requiring the defaulter to take such steps as are necessary to comply with the terms of the agreement under regulation 17 ….

Regulation 21(5) of TICER as it stood on the date of the complaint provides that:

An order made under paragraph (4) shall specify –

(a) the steps which the defaulter is required to take;

(b) the date of the failure; and

(c) the period within which the order must be complied with.

In the exercise of its discretion under regulation 21(4) of TICER the CAC makes the following order under regulation 21(5):

(a) the Employer shall cease to exclude Mr. Olivé Plaza under Clause 14.1 of the Agreement from any further participation in EWC meetings (Plenary and Limited Committee);

(b) the Employer excluded Mr. Olivé Plaza from any further participation in EWC meetings (Plenary and Limited Committee) on 27 July 2020;

(c) this order must be complied with within 21 days of the date of this decision.

19. Application for a declaration under regulation 23 of TICER

56) Mr. Olivé Plaza sought a declaration under regulation 23 of TICER that it was not reasonable for the Employer to impose a requirement that the existence of the F4F project should be held in confidence and that disclosure of this information by him did not, or was not likely to, prejudice or cause serious harm to the Employer and that it was not reasonable for the Employer to require Mr. Olivé Plaza to hold that information in confidence.

57) At the hearing the Panel Chair read out regulation 23(8) of TICER which reads as follows:

If a declaration is made under paragraph (7), the information or document shall not at any time thereafter be regarded as having been entrusted to the recipient who made the application under paragraph (6), or to any other recipient, on terms requiring it to be held in confidence.

The Panel Chair said that it was her understanding that the word “thereafter” in regulation 23(8) meant that a declaration did not have retrospective effect. The Employer agreed with this interpretation and the Complainants did not dispute it. The Complainants said that they withdrew the application for a declaration under regulation 23.

20. The translation/interpretation complaints

Summary of the Complainants’ submissions

58) One of the specific complaints made by the Complainants in relation to Mr. Olivé Plaza’s exclusion from future meetings with the Employer related to the Employer’s alleged failure to provide adequate translation/interpretation services. The Complainants submitted that the Employer had failed to provide employee representatives with access to such facilities and equipment so as to enable them to communicate under Clause 9.6 of the Agreement through its failure to provide such services. Clause 9.6 reads as follows:

WBA will ensure that all employee representatives have access to such facilities and equipment as to enable them to communicate with their constituency and with the other WBAEWC1 representatives.

In addition Mr. Olivé Plaza raised a complaint under regulations 19A and 21A of TICER for the failure by the Employer to provide members of the EWC with the means required to fulfil their duty to represent collectively the interests of employees, namely the Employer’s failure to provide adequate translation/interpretation services. Regulation 19A(1) of TICER reads as follows:

(1) …. the central management shall provide the members of a European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings under these Regulations.

Regulation 21A(1) of TICER reads:

(1) A complaint may be presented to the CAC by a relevant applicant who considers that –

… (b) because of the failure of a defaulter, the members of the European Works Council have not been provided with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings in accordance with regulation 19A.

59) The Complainants said that there had been several occasions in the six months prior to the date of the complaint where the Limited Committee had met and there had been no interpretation facilities and/or no pre-meeting organised for employee representatives. The Complainants said that these were as follows:

(i) 29 April 2020: conference call between the Employer and the Limited Committee with no interpretation facilities or pre-meeting;

(ii) 6 May 2020: no pre-meeting of the Limited Committee with interpreters;

(iii) 4 June 2020: conference call between the Employer and the Limited Committee with no interpretation facilities or pre-meeting;

(iv) 13 July 2020: no pre-meeting of the Limited Committee with interpreters;

(v) 28 July 2020: meeting via Microsoft teams with no interpreters.

The Complainants said that the French member of the Limited Committee hardly spoke a word of English and was in an impossible position without interpretation from English into French and vice versa. Dr Altmeyer said that the EWC Academy had been asked by the employee representatives to interpret for them. He said that the Academy’s consultants were not professional interpreters and could not give advice and interpret at the same time but that they had been required to interpret between French and English. The Complainants referred to Clause 8.5 of the Agreement which reads as follows:

The Limited Committee will meet with the WBAEWC1 Secretary at least once a year. The members of the Limited Committee may meet on their own prior to the meeting with the WBAEWC1 Secretary, who may be accompanied by other, appropriate members of management. Interpretation facilities will be made available, on the same basis as for WBAEWC1 meetings. These meetings will be scheduled over one day.

The Complainants said that it was clear that under Clause 8.5 interpretation facilities should be provided for meetings and pre-meetings of the Limited Committee. The Complainants said that the reference to the Limited Committee meeting “at least once a year” was setting a minimum not a maximum. The Complainants said that the Limited Committee had been allowed to hold a pre-meeting video conference with interpreters on 26 August 2020 but that the meeting had ended early because there was not enough time allowed for it.

60) The Complainants rejected the distinction made by the Employer between formal and informal meetings, with only the former attracting the right to a pre-meeting and translation/interpretation services. Mr. Olivé Plaza said that there had been more Limited Committee meetings during the pandemic than previously but contended that the fact that meetings were virtual rather than in person did not mean that they were informal. The Complainants said that there was no clear distinction between formal and informal meetings. Mr. Olivé Plaza said that meetings of the Limited Committee should always be formal: it should not be for the Employer unilaterally to decide whether meetings were or were not informal and when interpreters were or were not required. He said that interpreters were essential at all times for the parties to communicate. Mr. Vieth said that he had been aware of Mr. Heim’s desire for more frequent meetings but had not been aware that there would be no interpretation services for those meetings.

61) The Complainants said that their duty to represent collectively the interests of the employees of the undertaking was defined in Clause 8.3 of the Agreement for the purposes of regulation 19A of TICER. The Complainants said that Clause 8.3 stated that the Limited Committee would exchange views and, where appropriate, agree with the EWC Secretary on a range of matters including “Transnational issues that arise between annual meetings”. The Complainants said that the items discussed at the meetings on 4 June 2020 and 13 July 2020 – Covid-19, safety and business performance – as well as those on 6 May 2020 were clearly transnational in nature. ^{[footnote 11]} Mr. Olivé Plaza said that there was a need to cover transnational issues between plenary sessions of the EWC. He said that no one was planning to meet weekly for three days at a time but there were many things happening within the Employer and the EWC had a role in them.

21. Summary of the Employer’s submissions

62) The Employer said that the complaint before the CAC was limited to the August 2020 meeting but that further allegations made been made in the Complainant’s letter of 6 November 2020. The Employer said that its primary position was that none of these additional allegations was properly before the CAC but that it was making further submissions for the sake of completeness.

63) The Employer said that interpretation facilities had been provided for all formal meetings, including formal Limited Committee pre-meetings, formal Limited Committee meetings with the Employer and the annual EWC plenary meeting. The Employer said that the Limited Committee could request interpretation at any time and this would be considered by the Employer. The Employer said that no pre-meetings of the Limited Committee were required in the period between 17 March 2020 and 26 August 2020 because there were no formal meetings in that period. ^{[footnote 12]} The Employer said that the meeting on 6 May 2020 was an informal catch-up rather than a formal meeting so, although translation services were provided for the meeting itself because the Employer thought that this was important, no pre-meeting had been held. The Employer acknowledged that the Complainants had submitted a proposal in relation to interpretation at the meeting on 28 July 2020 and said that this had been considered but that it had not been deemed necessary to alter the existing arrangements. Mr. Perry said that employee representatives were usually told in advance whether interpreters would be present for a meeting. Mr. Heim said that the parties had discussed having informal meetings without professional translators/interpreters, and Mr. Merlino said that there had been no complaints about the informal meetings by employee representatives prior to this complaint.

64) The Employer said that Clause 8.5 of the Agreement referred to meetings taking place “at least once a year” and “scheduled over one day” and did not cover the more frequent meetings that had taken place in the period covered by the complaint. The Employer said that its only obligation under Clause 8.5 was to hold a meeting with the Limited Committee at least once a year; it was under no duty to hold any additional meetings. The Employer said that it could, therefore, respond to the complaint by deciding that it would no longer hold meetings beyond those required by Clause 8.5. The Employer also said that Clause 8.5 referred to the Limited Committee meeting with the EWC Secretary and that there was no such office-holder although, in answer to questions from the Panel, the Employer acknowledged that this role was essentially filled either by Mr. Perry or by another individual on an ad hoc basis. ^{[footnote 13]} The Panel drew the parties’ attention to Clause 6 of the Agreement which states that the EWC shall consist, inter alia, of company nominated executives one of whom will act as the EWC’s Secretary. The Employer said that it noted that provision.

65) The Employer denied that the pre-meeting of the Limited Committee on 26 August 2020 had ended abruptly as a result of the interpreters stating “From now on our services will no longer be paid” as the Complainants had alleged. The Employer stated that the meeting had been diarised for 2 hours 45 minutes. The Employer exhibited a letter dated 12 February 2021 from Ms. Geddes of Viva Voce to Mr. Perry which read as follows in relation to this meeting:

…. I checked with all my colleagues and we remember offering them an extra 15 minutes to enable them to finish a specific point they were discussing. It was agreed very amicably and politely. We would never abruptly end a meeting!

It is not the first time this has happened as they regularly say they need more time. For LC meetings we agree to work alone for longer than usual and times are agreed beforehand. We have never refused an extra 15 minutes. We are always very polite and seek consensus.

66) In its written submissions the Employer stated that the obligation under regulation 19A of TICER (and the parallel provision in regulation 21A(1)(b)) was not open-ended; it was “the means required to fulfil the duties under TICER”. In its written submissions relating specifically to regulation 19A, the Employer said that on 26 August 2020 there had been no request made to the Employer for the provision of translation services for more than the three hours that were provided. The Employer said that, had a request been made, it would have considered it but it did not appear that it was required given that no issue had been raised about it at the time. The Employer also said that three hours for a pre-meeting was clearly sufficient for representatives to be able to fulfil their duties and that it accorded with Clause 8.5 of the Agreement which provided that Limited Committee meetings, that is both the pre-meeting and the meeting with the Employer, would be scheduled over a day. The Employer said that three hours was therefore the relevant period for a half-day pre-meeting.

67) At the hearing the Employer submitted orally that regulation 19A of TICER was restricted to situations where information and consultation was required under regulation 18A. The Employer said that it had sought to engage with the Complainants beyond the scope of the Regulations and that it should not have to incur the considerable costs of translation/interpretation services as a consequence of doing so.

22. Considerations

68) The Complainants submitted that the Employer’s failure to provide adequate translation/interpretation services for Limited Committee meetings and pre-meetings constituted a breach of the Agreement and of regulation 19A of TICER. The Employer’s primary submission was that the Complaint of 8 October 2020 was limited to the meeting which had taken place on 26 August 2020 and that, although further allegations were made in the Complainants’ letter dated 6 November 2020, none of these additional allegations was properly before the CAC. The Panel does not accept this submission. The CAC’s online guidance states that, when making a complaint, complainants should provide a “brief statement explaining your complaint” and makes clear that next steps could include the provision of further information. The CAC does not require a complainant to particularise every detail of the complaint when the complaint is initially lodged and seeks to ensure, before making a decision, that each party has the opportunity to comment on the submissions and documentation supplied by the other party so far as is consistent with the principle of fairness in the circumstances of the case. In this case the initial complaint dated 8 October 2020 referred to a failure to provide adequate translation/interpretation services in two contexts. ^{[footnote 14]} The first related to the permanent exclusion of Mr. Olivé Plaza from all meetings with Central Management. “Specifically Central Management …

d) Has failed to provide all employee representatives with access to such facilities and equipment so as to enable them to communicate under … [Clause] 9.6 through its failure to provide adequate translation/interpreters services.

The second was a ‘free –standing’ complaint, raised by Mr. Olivé Plaza but not related to his exclusion, under regulations 19A and 21A of TICER:

for the failure by Central Management to provide the means required to fulfil their duty to represent collectively the interests of employees, namely, Central Management’s failure to provide adequate translation/interpreters services.

In relation to the first complaint, the Panel considers that it is clear that the Complaint dated 8 October 2020 was referring specifically to the translation/interpretation facilities available for the Limited Committee meeting on 6 May 2020 as well as for the pre-meeting on 26 August 2020 insofar as the adequacy or otherwise of those facilities may have related to Mr. Olivé Plaza’s exclusion from the EWC. In relation to the second complaint, the Complaint dated 8 October 2020 does not particularise other dates on which the Complainants allege non-compliance with TICER but the Complaint is framed in general terms and is not confined to 6 May 2020 or 26 August 2020. The Complainant’s letter of 6 November 2020 stated that the Limited Committee had not held an internal meeting with interpreters between 17 March 2020 and 26 August 2020 and the Panel considers that the Employer had sufficient notice of the case it was required to answer in this respect. The Panel notes, however, that the complaint focuses on the failure to provide interpretation facilities for pre-meetings of the Limited Committee rather than for meetings of the Limited Committee with the Employer, and the Panel’s decision, therefore, is confined to that specific issue

69) In relation to the first translation/interpretation complaint, the Panel has decided that the complaint that the Employer did not have grounds to exclude Mr. Olivé Plaza from any further participation in EWC and Limited Committee meetings with the Employer under Clause 14.1 of the Agreement is well-founded (see paragraph 54 above). The Panel made that decision on grounds other than those relating specifically to the translation/interpretation facilities provided for the Limited Committee meeting on 6 May 2020. In view of that decision the Panel does not consider it necessary to investigate the adequacy or otherwise of the facilities provided on either that day or on 26 August 2020 in the context of Mr. Olivé Plaza’s exclusion and it makes no finding on the matter.

70) In relation to the second complaint, regulation 19A(1) of TICER reads as follows:

(1) …. the central management shall provide the members of a European Works Council with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings under these Regulations.

Regulation 21A of TICER reads:

(1) A complaint may be presented to the CAC by a relevant applicant who considers that –

… (b) because of the failure of a defaulter, the members of the European Works Council have not been provided with the means required to fulfil their duty to represent collectively the interests of the employees of the Community-scale undertaking or Community-scale group of undertakings in accordance with regulation 19A.

In its written submissions the Employer contended that the obligation to provide the EWC with “the means required to fulfil their duty to represent collectively the interests of the employees” for the purposes of regulation 19A of TICER (and the parallel provision in regulation 21A(1)b)) was not open-ended but referred to the means required to fulfil the duties under TICER. At the hearing the Employer made the more restrictive submission that regulation 19A of TICER was confined to situations where information and consultation was required under regulation 18A. The Panel does not agree that regulations 19A and 21A are limited in this way. Firstly, regulation 17(4) of TICER, so far as material, stated at the date of the complaint that:

Without prejudice to the autonomy of the parties, where the parties decide to proceed with the establishment of a European Works Council, the agreement establishing it shall determine -

(c) the functions and (our emphasis) the procedure for information and consultation of the European Works Council ….

(d) where the parties decide that it is necessary to establish a select committee, the composition of the select committee, the procedure for appointing its members, the functions and the procedural rules

(e) the financial and material resources to be allocated to the European Works Council.

Regulation 17(6) stated that:

An agreement referred to in paragraph (4) … is not to be subject to the provisions of the Schedule, except to the extent that the parties provide in the agreement that any of those requirements are to apply.

The Panel notes that regulation 17(4)(c), in referring both to the functions and the procedure for information and consultation of the European Works Council, clearly envisaged that these functions may extend beyond information and consultation alone.

Secondly, regulation 19A(2) states that:

The obligation on central management in paragraph (1) does not include an obligation to provide a member of a European Works Council with –

(a) time off during working hours to perform functions as such a member (our emphasis), or remuneration for such time off ( as required by regulations 25 and 26);

(b) the means required to undertake training (as required by regulation 19B); or

(c) time off during working hours to undertake training, or remuneration for such time off (as required by regulations 25 and 26).

The Panel notes that under regulation 19A(2)(a) time off during working hours to perform functions as a member of an EWC (covered by regulations 25 and 26) is specifically exempted from regulation 19A(1), the implication being that it would have been covered by regulation 19A(1) had it not been specifically exempted. The term “functions” in regulation 19A(2)(a) is not limited by reference to functions under regulation 18A. The Panel considers that, had it been intended that regulation 19A(1) should be restricted to the duty to represent the interests of employees under regulation 18A, this would have been expressly stated. The Panel is satisfied that regulation 19A(1) is not limited to situations covered by regulation 18A and that it applies to the functions of the EWC as specified in the Agreement under which the EWC in question is established. The Panel notes in parenthesis, although this is not the basis of its decision on the point, that the Employer could be seen to be accepting this position in its written submission that there was no breach of regulation 19A(1) of TICER when the Employer provided interpretation facilities for three hours on 26 August 2020 because this accorded with Clause 8.5 of the Agreement.

71) The Complainants said that their duty to represent collectively the interests of the employees of the undertaking was defined in Clause 8.3 of the Agreement for the purposes of regulation 19A(1) of TICER and the parallel provision in regulation 21A(1)(b). Clause 8.3 states that the Limited Committee “will exchange views and, where appropriate agree” with the EWC Secretary on a range of matters including “Transnational issues that arise between annual meetings”. The Panel is satisfied that the items discussed at the meetings on 6 May 2020, 4 June 2020 and 13 July 2020 were transnational in nature and fell within the ambit of regulation 19A(1) of TICER. The Panel did not receive evidence of the nature of the matters discussed at the meeting on 29 April 2020 and it makes no finding in relation to that meeting. The Complainants did not submit that the meeting of the Limited Committee on 28 July 2020 called to discuss Mr. Olivé Plaza’s exclusion from the EWC was transnational in nature or otherwise fell within clause 8.3 ^{[footnote 15]} and the Panel makes no finding on that matter.

72) Clause 8.5 of the Agreement states:

The Limited Committee will meet with the WBAEWC1 Secretary at least once a year. The members of the Limited Committee may meet on their own prior to the meeting with the WBAEWC1 Secretary, who may be accompanied by other, appropriate members of management. Interpretation facilities will be made available, on the same basis as for WBAEWC1 meetings. These meetings will be scheduled over one day.

Clause 8.5 makes clear, therefore, that members of the Limited Committee may meet on their own prior to the meeting with the Employer and that interpretation facilities will be made available, on the same basis as for EWC meetings. In relation to EWC meetings, clause 10 of the Agreement provides as follows:

1) The employee representatives may hold a pre-meeting on the day immediately preceding WBAEWC1 meetings, which shall not be attended by management.

2) Employee representative pre-meetings will be provided with the same facilities, including simultaneous interpretation, as are available at the annual WBAEWC1 meeting.

Clause 9.4 provides that:

WBAEWC1 meetings will be conducted in English, which is the official working language of the company. The agenda and notes will be produced in English and a translation will be provided by the local business unit following agreement of the English text. A summary will also be translated by the local business unit as may be necessary. To ensure as far as possible that there is meaningful dialogue and a full exchange of views at the meetings simultaneous interpretation facilities will be made available.

The Panel Chair read these clauses to the Employer and the Employer did not dispute that a pre-meeting with interpretation facilities was required for formal meetings of the Limited Committee and said that these had always been provided. The Employer’s case rested on its submission that the meetings of the Limited Committee that had taken place in the period 17 March 2020 – 26 August 2020, including those on 6 May 2020, 4 June 2020 and 13 July 2020, were informal meetings which did not attract the obligation to provide pre-meetings with translation/interpretation services under the Agreement. The Complainants submitted that there was no distinction between formal and informal meetings of the Limited Committee under the Agreement and that all its meetings should be treated as formal meetings.

73) The Panel appreciates the Employer’s desire to hold more frequent meetings with the Limited Committee without necessarily incurring the expense of professional translation/interpretation services for pre-meetings of Limited Committee members on each occasion. The Employer gave evidence that it had discussed holding informal meetings with the Complainants which would not attract the obligations under Clause 8.5. The Complainants said that they recalled discussions about more frequent meetings but did not expect that no translation/interpretation services would be provided. On the basis of the evidence before it the Panel has concluded that there was no shared understanding between the parties as to the status of the more frequent meetings and the facilities to be provided in relation to them. In the absence of any written agreement between the parties making specific provision for informal meetings which were to be exempted from the requirements of Clause 8.5, the Panel is required to decide the issue on the basis of the Agreement as it stands. The Employer pointed to the fact that Clause 8.5 says that the Limited Committee should meet “at least once a year” and that these meetings “will be scheduled over one day” and said that these provisions showed that Clause 8.5 was not intended to apply to informal ‘catch-up’ meetings. The Panel has considered the matter carefully and has concluded that the Agreement makes no provision for meetings of the Limited Committee which are not governed by the requirements of Clause 8.5. The Employer raised the point that there was no EWC Secretary and that as a result Clause 8.5 could not apply. The Panel notes that Clause 6 of the Agreement requires an Employer-nominated executive to act as the EWC Secretary and does not consider that the Employer’s failure to appoint a specified individual to that role constitutes a barrier to the application of Clause 8.5. The Panel has therefore concluded that the Employer’s failure to provide facilities for pre-meetings of members of the Limited Committee, with interpretation facilities on the same basis as those afforded for the EWC, prior to the meetings on 6 May 2020, 4 June 2020 and 13 July 2020 constituted a breach of Clause 8.5 and consequently of regulations 19A(1) of TICER.

74) A pre-meeting of the Limited Committee with interpretation services was held on 26 August 2020 prior to a meeting with the Employer on 27 August 2020. The Complainants submitted that the time allowed by the Employer for this meeting – 2 hours 45 minutes - was insufficient and that the meeting ended abruptly. The Employer maintained that the meeting had lasted for three hours in all; denied that it had ended abruptly; said that no request was made at the time for an extension; and that three hours was in any event an adequate period in the light of Clause 8.5. The Complainants did not provide an agenda for the meeting or evidence of matters that they had been unable to discuss in the time available and on the basis of the evidence before it the Panel has decided, on the balance of probabilities, that this complaint is not well-founded.

23. Decisions

75) The Panel’s decisions on the translation/interpretation category of complaints are as follows:

The CAC considers that the complaint that the Employer had failed to provide members of the European Works Council with the means required to fulfil their duty to represent collectively the interests of employees by failing to provide facilities for pre-meetings of members of the Limited Committee, with interpretation facilities on the same basis as those afforded for the EWC, prior to the meetings of the Limited Committee on 6 May 2020, 4 June 2020 and 13 July 2020, is well-founded.

The complaint relates to past events and the CAC does not have jurisdiction to make orders governing the future conduct of the parties. The Panel has therefore made no order in relation to this complaint.

The complaint that the Employer failed to allow sufficient time for a pre-meeting of members of the Limited Committee with interpretation services on 26 August 2020 is not well-founded.

24. Summary of Decisions

76) The complaint that the Employer did not have grounds to exclude Mr. Olivé Plaza from any further participation in EWC meetings (Plenary and Limited Committee) under Clause 14.1 of the Agreement is well-founded.

The complaint that the Employer has prevented and prevents Mr. Olivé Plaza, an elected employee representative from participating in the EWC and attending actual and potential meetings as required under Clause 2.2 (generally), Clause 5 and Clause 9 (attendance at and participation in annual meetings), Clause 10 (attendance at a pre-meeting), Clause 11 (Extraordinary meetings) and has effectively removed an elected member of the EWC duly elected under Clause 7 is not well- founded.

The complaint that the Employer has prevented the Limited Committee from being properly constituted with the give elected individuals allowed for and a member of the Limited Committee from being part of the duties of the Limited Committee as required under Clause 8 of the Agreement is well-founded.

The complaint that the Employer had failed to provide members of the European Works Council with the means required to fulfil their duty to represent collectively the interests of employees by failing to provide facilities for pre-meetings of members of the Limited Committee, with interpretation facilities on the same basis as those afforded for the EWC, prior to the meetings of the Limited Committee on 6 May 2020, 4 June 2020 and 13 July 2020, is well-founded.

The complaint that the Employer failed to allow sufficient time for a pre-meeting of members of the Limited Committee with interpretation services on 26 August 2020 is not well-founded.

25. Order

77) In the exercise of its discretion under regulation 21(4) of TICER the CAC makes the following order under regulation 21(5):

(a) the Employer shall cease to exclude Mr. Olivé Plaza under Clause 14.1 of the Agreement from any further participation in EWC meetings (Plenary and Limited Committee);

(b) the Employer excluded Mr. Olivé Plaza from any further participation in EWC meetings (Plenary and Limited Committee) on 27 July 2020;

(c) this order must be complied with within 21 days of the date of this decision.

Professor Gillian Morris, Panel Chair

Mr. Mike Cann

Ms. Hannah Reed

25 March 2021.

26. Appendix

Names of those who attended the hearing on 4 March 2021:

For the Complainants

Dr Werner Altmeyer - EWC expert representative

Jaume Olivé Plaza - Member of the Limited Committee, chair of the employee representatives

Roland Vieth - Member of the Limited Committee, secretary of the employee representatives

For the Employer

Sarah Fraser Butlin - Barrister

Alessandro Merlino - Vice President, Human Resources Pharmaceutical Wholesale Division, Walgreens Boots Alliance

Sean Connolly - Senior Employment Lawyer, Walgreens Boots Alliance

Simon Perry - HR Project Manager, Walgreens Boots Alliance

Rudi Heim - Former Vice President, Human Resources Pharmaceutical Wholesale

1. In this decision we refer to the Complainants generically unless it is material whether we are referring to the EWC or Mr. Olivé Plaza specifically. We do not refer to individual representatives of the Employer by name other than in contexts where their identity is material. ↩

2. This section is intended to provide a brief chronology of uncontested events and documentary material. Greater detail, where relevant, is provided later in the decision. ↩

3. In its written submissions provided for the purposes of the hearing the Employer said that at the bottom of each page of the Powerpoint presentation was stated “Proprietary and confidential information. For internal use only”. In the agreed bundle provided by the parties for the purposes of the hearing this form of words appeared only on the title page to the Introductory remarks. ↩

4. “Conclude” was the word used in the minutes of the meeting. ↩

5. The complaint referred to “Article” 14.1 of the Agreement; in some documentation the Employer referred to “paragraphs” of the Agreement. The Agreement itself refers to “clauses” and we therefore use that nomenclature in this decision. ↩

6. This question should have read “after the arranged time”. It was clearly read by the Complainants in the way the question was intended to have been put. ↩

7. Coco v AN Clark (Engineers) Ltd [1969] RPC 41 and Case C-384/02 (reference for a preliminary ruling from the Københavns Byret, Denmark): Criminal proceedings against Knud Grøngaard, Allan Bang. ↩

8. Directive 2016/943/EU. ↩

9. See paragraph 4 above for the statement on the copies provided to the Panel. ↩

10. “Mr Heim emphasised that this was a confidential project and information should be restricted to the EWC LC only at this stage”… Mr Heim stressed that the update “was strictly confidential and to be kept to the EWC LC only at this stage”. ↩

11. Mr. Perry’s witness statement said that these matters had been the purpose of those meetings. ↩

12. The Complainants’ letter of 6 November 2020 referred to interpretation services being provided by the Employer for an internal meeting of employee representatives on 17 March 2020. ↩

13. In his witness statement Mr. Perry said that his role in the EWC was “akin to a Secretary”. ↩

14. See further paragraph 6 above. ↩

15. The Panel notes that at the meeting on 28 July 2020 the Limited Committee requested a meeting the following week with translators to resolve the issue of Mr. Olivé Plaza’s exclusion from the EWC but whether and, if so, how this fell within clause 8.3 was not raised before or at the hearing by either party. ↩