1. I have had the benefit of an equally impressive and able argument from Mr Edge on behalf of Cofely.

1. The first task for the Court is to consider the meaning of the Regulations as appears from the text, taken in context. It is only if the European legislation and case law requires a different conclusion to be reached that I need to consider whether, adopting the interpretative principle expressed in Marrleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135, ECJ *and Pfeiffer and Others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV*, [2005] I.C.R. 1307 ECJ I should read the Regulations in a different sense from that which might seem appropriate adopting normal domestic canons of construction.

1. Ms Jolly's arguments must be rejected, for two broad but separate reasons.

1. The first is that it is clear, in my view, from the Regulations as they stand that they are to be interpreted to the same effect as the CAC held. There are several reasons and other pointers in favour of the definition of "undertaking" the CAC adopted, and very little if anything which counterbalances it. The second is that, in any event, the CAC found facts, which were not challenged upon the appeal, which could not be brought within the definition of "undertaking" which Ms Jolly advanced (set out above).

1. The first question is the appropriate interpretation of the Regulations. Though "undertaking" contains a definition lifted from the Directive, which does not state in terms that the "undertaking is to be the employer of the employees concerned, Regulation 3 talks of undertakings "..employing in the United Kingdom..". I accept entirely Ms Jolly's point that the word "employing" may here be no more than a carrying phrase – it is, for instance, used in that way in the Collective Redundancies Directive in Article 1(A)(i), where the reference is to establishments "employing", when it is plain that the establishment is not the overall employer since in the 19th Recital to the ICE Directive the reference is to "undertakings" or "establishments" "employing… employees". There is room for such an approach here too: but in Regulation 3(3) an "undertaking" to which these Regulations apply is referred to, expressly in relation to "its" employees, as "the employer". This is not a carrying phrase. Ms Jolly's argument is that this is to be seen as a description of convenience. It is not, after all, in the definition regulation immediately above. However, the words refer to an undertaking being referred by such a term "in relation to its employees". The word "its" is specific: it is not, for instance, simply omitted as it might be if no relationship of employer-employee were to be intended. "Employee" is defined in the Regulations as: "…an individual who has entered into a contract of employment…". Regulation 3(3) thus envisages that the undertaking is an employer.

1. Similarly, in Regulation 5 the reference is to "…the number of people employed by the employer's undertaking in the United Kingdom." The word used is "by", not "in" as might have been expected had Parliament not intended to draw the link between the undertaking and the employer. Mr Edge points out that in Regulation 9 there is a similar indication. This deals with pre-existing agreements covering groups of undertakings. Regulation 2 of it reads:-

"Where this regulation applies the employers may hold a combined ballet for endorsement of the employee request in accordance with this regulation and in that event regulation 8 shall apply to the ballot with the modification that references to employees shall be treated as referring to the employees employed in all of the undertakings referred to in paragraph 1A and B"

(Paragraph 1B refers to a situation in which a pre-existing agreement covers employees in one or more undertakings other than the undertaking which has received a valid employee request to endorse a pre-existing agreement). This envisages a clear link between the undertaking and the employee concerned, such that the former is the employer of the latter.

1. The Regulations throughout seem to be drafted upon the assumption that relevant employees are employees employed by the undertaking itself. If that is so, then the Regulations themselves are indicating a necessary characteristic of the undertaking: that it is capable of entering into a contract of employment. "Employees" are defined as such because they have entered into a contract with their "employer". For them to do so, it must be a legal entity – whether a natural or legal person – capable of entering into a contract (the "contract" referred to can only mean one which is valid and binding in law). It cannot simply be an organisation of workers, albeit dedicated to working on the same contract, which though recognisable as such (as, for instance, in the department or division of an employer) has no separate legal personality, for such a grouping could not enter into a valid contract as one entity.

1. Regulation 7(4) echoes Regulation 3(1)(b) in making reference to "registered office, head office, or principal place of business". That indicates that the concept of "undertaking" is also of a body which is capable of having a registered office, or head office, and recognises that it could be one which may have a number of different places of business. Both the first two in this list of three suggest a legal entity, as such; and the third implies that each of the different places of business is not to constitute a undertaking separate and standing on its own, but instead that each is a separate part of one multi-headed hydra.

1. Secondly, though I accept that the DTI Guidance is not binding, in any sense upon me, since it represents a third party's view of the meaning of the Regulations, it is nonetheless worthy of respect, and of some persuasive weight.

1. Thirdly, the Directive provided Member States with a choice between "undertaking" or "establishment". I accept Mr Edge's submission that the distinction must be a meaningful one. To adopt the Appellant's argument would have the effect that many groups of employees, to whom the definition of "establishment" could be applied (if adopting the same definition as thought appropriate in Rockfon and Usdaw) could be regarded as undertakings. This would defeat the object of distinguishing between the two.

1. This ties in with the fourth point that the scheme provided for by the Directive is one in which "undertakings" and "establishments" must be seen to be different. As the Court of Justice said in Usdaw, at paragraph 50:

"By the use of the words "distinct entity" and "in the context of an undertaking" the Court clarified that the terms "undertaking" and "establishment" are different and that an "establishment" normally forms part of an "undertaking". That does not, however, preclude the establishment being the same as the undertaking where the undertaking does not have several distinct units."

To this extent I accept Ms Jolly's submission that the CAC here overstated the degree of separation between the two. They are not mutually exclusive concepts. However, the scheme of the Directive is such that an undertaking may include a number of establishments. Alternatively, the establishment may be the same as the undertaking. It is not that there is any wider overlap. "Undertaking" is wider than "establishment". The genus "undertaking" includes the species "establishment", but not vice versa.

1. Toward the end of submissions, Ms Jolly was concerned that the question might be where the borderline lay between what was to be regarded as an undertaking, and what was to be regarded as an establishment. This question is strictly unnecessary to resolve for present purposes, since all I am required to resolve is whether the employees assigned to the University of London contract formed an undertaking within the meaning of the Regulations. I do not need to go further and hold that they formed an establishment or for that matter establishments.

1. Fifth, Mr Edge argued that it was implicit in the Regulations that an undertaking was the legal entity employing the employees concerned. Regulation 7(2) requires at least 10% of the employees in the undertaking to make a request. Some idea of the concept of the size "undertakings" might have is provided by Regulation 7(3):

"Where the figure of 10%... would result in less than 15 or more than 2,500 employees being required in order for a valid request to be made, that paragraph shall have effect as if, for the figure of 10%, there were substituted the figure of 15, or as the case may be, 2,500."

2,500 being 10% of 25,000, the draftsman is contemplating that an undertaking could have more than that number of employees. It is highly unlikely on any practical view that any one workplace would contain as many. 25,000, or any higher number of, employees would in the real world work in a number of different locations, connected by chains of management to a central organising body. Yet the Regulations envisage them as one undertaking, and not as several.

1. The decisions in Pye, and Coombs are persuasive to the same result. There is no case which I have been shown which argues for the opposite conclusion. References were made to Brown v G4S Security, a case which when it was decided by the CAC came before the same Chairman, Mr Chapman, as here. In that case, a unit of one employer's workforce was taken as the undertaking. However, the point as to whether a business unit, which was part only of an employer, could be an undertaking was never argued because, as I understand it, the employer did not challenge the validity of the request on the basis that the percentage of employees was too small. I did not understand either party to be asserting the case to be of any significant assistance, and it follows from my understanding that they were right not to do so.

1. Next, there seems to be no sense in construing "undertaking" as referring to any grouping smaller than that which is the legal employer of the employees concerned. Although the purpose of the Regulations must be taken to be to implement the Directive, which in turn has the purpose of ensuring information and consultation of employees on matters of deep concern to them at the workplace, I cannot see why this purpose is better achieved by adopting a smaller rather than a larger unit. If a smaller unit is adopted, then that, for the purposes of obtaining information and consultation, constitutes the undertaking. The Directive expresses its objective as being to promote social dialogue between management and labourer (Recital 1), and in Recitals 6-8 says this:

"(6) The existence of legal frameworks at national and community level intended to ensure that employees are involved in the affairs of the undertaking employing them and in decisions which affect them has not always prevented serious decisions affecting employees from being taken and made public without adequate procedures having been implemented beforehand to inform and consult them.

(7) There is a need to strengthen dialogue and promote mutual trust within undertakings in order to improve risk anticipation, make work organisation more flexible and facilitate employee access to training within the undertaking while maintaining security, make employees aware of adaptation needs, increase employees' availability to undertake measures and activities to increase their employability, promote employee involvement in the operation and future undertaking and increase its competitiveness.

(8) There is a need, in particular, to promote and enhance information and consultation on the situation and likely development of employment within the undertaking and, where the employer's evaluation suggests that employment within the undertaking may be under threat, the possible anticipatory measures envisaged, in particular in terms of employee training and skill development, with a view to offsetting the negative developments or their consequences and increasing the employability and adaptability of the employees likely to be affected.

(9) Timely information and consultation is a pre-requisite for the success of the restructuring and adaptation of undertakings to the new conditions created by globalisation of the economy, particularly through the development of new forms of organisation of work."

1. These words do not suggest matters of merely parochial interest. They are wide and broad in their expression. To adopt an interpretation of "undertaking" that might restrict the information and consultation to that provided by a department or division of a larger undertaking (for example) might leave out of account decisions at a higher level effecting all very considerably, which if they were to be grappled with by employees might need to be addressed at the earliest opportunity. Mr Edge in his submissions argued that the choice afforded by the Directive was between undertakings employing at least 50 employees or establishments employing at least 20: though the former was a more demanding threshold to achieve, the fruit to be picked from the tree was heavier, hence the choice. I simply do not accept that regarding the 210 employees working on the University of London contract as an undertaking better achieves the purpose of the Directive than regarding Cofely as a whole as the relevant undertaking. Though I accept entirely that a purposive approach must be taken, care must be taken in the identification of the purpose.

1. I note, in passing, that the employees' argument before the CAC in Coombs was that the employees' interests in information and consultation would better be protected if a number of undertakings were together regarded as the undertaking for the purpose: a practical demonstration, when compared to the present case, that employees may take different views in different situations as to the significance of that which is identified as the undertaking to which they belong.

1. Accordingly, I have come to the clear view that on the interpretation of the statute, applying domestic canons of construction, it envisages as "the undertaking" a legal entity capable of being the employer of employees serving it under a contract of employment, and that there is no principled basis for suggesting from within those Regulations that the undertaking should be construed as merely a division or department of that single employer.

1. In coming to this conclusion I have only touched lightly on European authority. I have now to ask whether this initial domestic construction is inconsistent with the European Directive and the case law of the European Court of Justice. Given the view I have taken of the purpose of the Directive I cannot see that it is. Moreover, the very existence of the choice within the Directive demonstrates that to take such a choice would not be inconsistent with its aims.

1. I accept Mr Edge's point that the distinction between undertaking and establishment in the Directive would lack meaning if the latter could just as easily constitute an undertaking.

1. There is no case law directly defining "undertaking" for the purposes of the ICE Directive and the European description is circular. It cannot, however, be said that it is necessarily inconsistent with the domestic interpretation intended to implement it. I am not required to adopt any other interpretation in the light of the European case law on the Collective Redundancies Directive, or for that matter that in respect of the Acquired Rights Directive. As to the latter, it is entirely right to note that an economic entity could consist of one person alone fulfilling a function in a workplace: but since the Directive applies, not only to undertakings but to parts of an undertaking, it gives no assistance as to the meaning to be adopted where a court cannot play regard solely to part of an undertaking. As Advocate General Mengozzi in Case C-385/05 said at paragraphs 78-82, the Collective Redundancies Directive and the ICE Directive were founded on different legal bases. He concluded that the definition contained in the ICE Directive was not intended to extend to the Collective Redundancies Directive: it contains its own internal definitions of establishment and undertaking.

1. Though I accept that the CAC overstated the division between "undertaking" and "establishment" by suggesting they were mutually exclusive concepts when they are not (see paragraph 50 of the judgment of the Court in Usdaw) this was not material to its decision in the present case, and affords me no basis for upholding the appeal.

1. There was no challenge to the findings of fact made by the Tribunal. In paragraph 26, the CAC recorded the submissions made by Cofely in the following terms:

"it was to be noted that nowhere in the employees' letters to the CAC or their Response Form was it even argued that the Company ran the University London site as an "autonomous unit" or stand alone business. In truth, there was nothing to distinguish the present case from the facts as found by the CAC in Pye and the same reasoning would apply to the UOL site on the facts of the present matter. Site/contract in question was merely one of 600 operated by the Company and each site/contract was operated by a centralised operational and management structure. None of the sites was operated with any degree of autonomy and the statutory accounts of the Company made no suggestion of any independence of UOL contract. The inevitable conclusion was that the Company employed thousands of employees across hundreds of locations and the UOL contract was nothing more than one of the Company's "establishments". It was not an undertaking pursuant to the regulations".

This submission was that which was adopted in the words of paragraph 93 which I have cited above. The Appellant's submission that an undertaking "must be at least a separate grouping of employees which is operationally autonomous and identifiable within the boundaries of a single employer" would not be met by the facts as recorded at paragraph 93.

1. Ms Jolly argues that paragraph 93 has to be seen in the context of the decision as a whole, and as following paragraph 92 which precedes it and states:

"In the absence of any supporting evidence to the contrary we find that we cannot agree with Doctor Moyer-Lee's submissions, no matter how eloquently put, as to the interpretation of "undertaking". We do not believe that it was the intention of the UK Government that the word "undertaking" be so defined on such a scale. If it had so intended, it would have elected for "establishment" and not "undertaking". There is a difference between these terms and both the Directive and Regulations make this abundantly clear. Whilst we have commented on the weight to be placed on the definitions by the DTI we find that in the absence of any alternative interpretation, it is a framework within which to consider the parties submissions."

Ms Jolly submits that those last words show the lens through which the Tribunal was viewing the facts it set out at paragraph 93. Accordingly, paragraph 93 is a product of an erroneous approach, and should not be regarded as a finding of fact which concludes the appeal.

1. I do not accept this. In my view what the CAC was considering at paragraph 93 was not affected by the approach it had indicated at paragraph 92: it was asking whether it had been persuaded by an argument that the UOL contract was "a stand alone autonomous unit". That seems to me an issue of fact, independent of the lens of the reporter who describes it. It said it was not. That is a conclusion of fact unaffected by defective vision.

1. Accordingly, even if I had accepted the Appellant's argument as to the way in which "undertaking" should be construed, the appeal could not succeed.

1. I consider that the law is clear in respect of both of the grounds upon which I have determined the appeal, that it is not necessary for me to obtain a preliminary ruling from the European Court of Justice, and I decline the invitation to make a reference.

1. For these reasons the appeal is dismissed.