Undertaking

A business or service to which the regulations apply must be a public or private undertaking carrying out an economic activity, whether or not operating for gain (regulation 2 and Schedule 1). The term “economic activity” has been defined broadly by the European Court of Justice, for example that it covers healthcare services.

An undertaking could thus be a company, partnership, mutual, building and friendly society, association, trade union, charity, school, college, university, NHS trust, central or local government body, or an individual who is an employer, but it must carry out an economic activity.

Government guidance indicates that an undertaking should be a “separately incorporated legal entity”. (In the case of British companies, this means it should have a unique registration number at Companies House.)

This is a significantly different approach from that used for statutory union recognition, which is based on a bargaining unit. In a fragmented business it could be a very high hurdle to jump, as was the case of Cofely Workplace (see below).

Unions should also be prepared for the possibility that their view of what the undertaking includes may be quite different from management’s (see GE Aviation below).

It is possible to set up an ICE agreement to cover more than one undertaking (such as a group of companies, regulation 14(6)). It is also possible for an agreement (which must cover all the undertaking’s employees) to consist of different parts (regulation 16 (1)).