ACAS had duty to consult

Posted: 11th June 2018

EATThe Advisory, Conciliation and Arbitration Service (Acas) has, since 1975, helped to resolve some of Britain’s most bitter industrial disputes. However, an important tribunal ruling has established that it owes the same legal duty as any other substantial employer to consult with its staff pursuant to collective agreements.

A trade union had complained to the Central Arbitration Committee (CAC) that Acas was in breach of the consultation requirements contained within the Information and Consultation of Employees Regulations 2004. In accepting jurisdiction to consider the complaint, the CAC rejected Acas’s argument that it was not an undertaking, carrying out an economic activity, and was thus exempt from the relevant duty.

In ruling on Acas’s challenge to that decision, the Employment Appeal Tribunal (EAT) noted that it is a non-departmental public body that receives about £50 million in annual funding from the Department of Business, Energy and Industrial Strategy. It employs over 750 full-time civil servants and provides the vast majority of its services free of charge.

In dismissing the appeal, however, the EAT noted that the fact that Acas does not operate for gain does not mean that it is not an undertaking to which the Regulations apply. There was no requirement that relevant goods or services have to be paid for by their consumer or end-user. The provision of public services by a public authority, and without a profit motive, was capable of being an economic activity.

The EAT accepted that not all the activities performed by Acas – in particular pursuant to the duties and powers of conciliation it exercises under the Employment Tribunals Act 1996 – can be viewed as economic. However, like other government bodies, it charges for certain services, including face-to-face training, mediation and workplace projects, and raises about £4.5 million a year from service users. In those circumstances, Acas was sufficiently engaged in economic activities for the Regulations to bite.