The Public Commercial Services (PCS) made a complaint to the Central Arbitration Committee (CAC) that Acas, as an employer, had failed to consult with its employees pursuant to a collective agreement.

Acas contended the CAC lacked jurisdiction to hear the complaint stating it was not an “undertaking” within the meaning of Regulation 2 of the Information and Consultation of Employees Regulations 2004 (ICER) because it was not “carrying out an economic activity, whether or not operating for gain”. The CAC rejected this argument stating a sufficient part of its activities met the test.

In deciding whether the undertaking carried out an economic activity the EAT considered the EU Acquired Rights Directive and the distinction made in Scattolon v Ministero dell'Istruzione, dell'Universita e della Ricerca between economic activity and activities "which fell within the exercise of public powers”.

The EAT held the CAC panel incorrectly concluded that all Acas activity constituted economic activity. According to the EAT the CAC panel took too narrow an approach to the excluded category of activities “within the exercise of public powers” and focused too much on the entity rather than its activities.

The EAT disagreed with the CAC's conclusion that all Acas services constituted economic activity for the purposes of ICER Regulation 2, but said a sufficient part of its activities did so, for example, the Good Practice Services i.e. services for which the ‘customer’ makes a payment were considered economic activity and were neither ancillary nor de minimis.

For those reasons the Regulation was satisfied and the appeal dismissed.
https://www.gov.uk/employment-appeal-tribunal-decisions/advisory-conciliation-and-arbitration-service-acas-v-public-and-commercial-services-union-pcs-ukeat-0160-17-rn