The Information and Consultation of Employees Regulations 2004 ("ICER") implement the European Directive 2002/14/EC which established a general framework for informing and consulting employees in the European Community in domestic law. Regulation 22(1) of the ICER provides that a complaint may be presented to the Central Arbitration Committee ("CAC") by a relevant Applicant where a negotiated agreement has been agreed and the Applicant considers that the employer has failed to comply with its terms. By Regulation 3, the ICER apply to UK based undertakings which employ a requisite number of employees in the UK. An undertaking to which the ICER apply is referred to, in relation to its employees, as "the employer". By Regulation 2, "undertaking" means a public or private undertaking carrying out an economic activity, whether or not operating for gain. The Public and Commercial Services Union ("PCS") brought a complaint against the Advisory Conciliation and Arbitration Service ("ACAS") made pursuant to Regulation 22(1) of the ICER concerning ACAS' alleged failure as employer to consult with its employees pursuant to a negotiated agreement with PCS. ACAS disputed the jurisdiction of the CAC and the applicability of the ICER on the basis that it is not an undertaking within the meaning of Regulation 2. The CAC dismissed the challenge to the jurisdiction, holding that all of ACAS' activities satisfied that requirement; alternatively, that a sufficient part of its activities did so. ACAS appealed.

The EAT dismissed the appeal. It could not be said that all ACAS' services constituted economic activity for the purposes of ICER Regulation 2. However, for the reasons given in respect of the alternative case, the Regulation was clearly satisfied and accordingly the appeal was dismissed.