6.—(1) For the purposes of determining whether an undertaking is a Community-scale undertaking or a group of undertakings is a Community-scale group of undertakings, the number of employees employed by the undertaking, or group of undertakings, shall be determined—
(a)in the case of UK employees, by ascertaining the average number of employees employed during a two year period, calculated in accordance with paragraph (2) below;
(b)in the case of employees in another Member State, by ascertaining the average number of employees employed during a two year period, calculated in accordance with the provisions of the law or practice of that Member State which is designed to give effect to the Transnational Information and Consultation Directive.
(2) Subject to paragraph (3), the average number of UK employees is to be ascertained by—
(a)determining the number of UK employees in each month in the two year period preceding the relevant date (whether they were employed throughout the month or not);
(b)adding together all of the monthly numbers, and
dividing the number so determined by 24.
(3) For the purposes of the calculation in paragraph 2(a) if for the whole of a month within the two year period an employee works under a contract by virtue of which he would have worked for 75 hours or less in that month—
(a)were the month to have contained 21 working days;
(b)were the employee to have had no absences from work; and
(c)were the employee to have worked no overtime,
the employee may be counted as half a person for the month in question, if the UK management so decides.
(4) For the purposes of this regulation, regulations 7 to 10 and regulation 20 “relevant date” means—
(a)where a request under regulation 7 is made and no valid request under regulation 9 has been made, the last day of the month preceding the month in which the request under regulation 7 is made; and
(b)where a valid request under regulation 9 is made (whether or not a request under regulation 7 has been made), the last day of the month preceding the month in which the request under regulation 9 is made.
(5) Where appropriate, the references in paragraph (4) to regulations 7 and 9 shall be read, instead, as references to the provisions of the law or practice of a Member State other than the United Kingdom which are designed to give effect to, respectively, Article 11(2) and Article 5(1) of the Transnational Information and Consultation Directive.