Decision

Acceptance Decision

Updated 21 June 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1326(2023)

21 June 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

CWU

and

Boots Hearing Care

1. Introduction

1) CWU (the Union) submitted an application to the CAC on 24 May 2023 that it should be recognised for collective bargaining by Boots Hearing Care (the Employer) for a bargaining unit comprising of “The Data and Development department, IT department including the following grades: senior professional software development, software development professional, business applications associate, IT service desk professional, IT service desk associate”. The CAC gave both parties notice of receipt of the application on 25 May 2023. The Employer submitted a response to the CAC dated 1 June 2023 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mrs Susan Jordan, and Ms Joanna Brown. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 8 June 2023. The acceptance period was then extended to 22 June 2023 in order to allow time to conduct a membership check and to allow time for the parties to comment thereon before the Panel arrived at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it made its formal request for recognition on 6 March 2023 and that, in an email received by the Union on 17 March 2023, the Employer invited the Union to withdraw its request and for the parties to meet and discuss matters fully.

6) The Union responded to the Employer’s proposal by attending a meeting which took place between both parties on 28 March 2023. The Union confirmed that no progress was made even after it gave the Employer extension dates.

7) When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “No”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

8) The Union stated that the total number of workers employed by the Employer was approximately 725 and that approximately 10 of these workers were in the proposed bargaining unit, of whom 6 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”. When called upon to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated, “The majority of the proposed bargaining unit are members of the CWU”.

9) The Union stated it had selected the proposed bargaining unit as “Only technology staff/departments in the business (IT and Date & Development- both part of overall “Business Solutions” department)”. When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

10) Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it confirmed that it held a current certificate of independence and it confirmed that it had copied the application and supporting documents to the Employer on 24 May 2023.

4. Summary of the Employer’s response to the Union’s application

11) In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 6 March 2023 and it replied by way of an email dated 17 March 2023 , stating “Boots Hearing care Limited (the “Company”) proposed that the parties meet to understand the request and for the purposes of the statutory process, the Company could not accept the request or reject it at that time. However, the Company confirmed, including for the purposes of Schedule A1 paragraph 10(2), that it was willing to negotiate with the Union”. A copy of the email dated 17 March 2023, although mentioned by the Employer was not attached to its response.

12) The Employer confirmed that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. The Employer stated “There has been significant change within the Company’s business, and it is not clear from the Union’s description of the bargaining unit which roles are included. The Union has said that the number of workers in the bargaining unit is 10 but the description of the unit says that it is the Data and Development department, IT department including five roles. It is unclear to the Company if additional roles are intended to be included”.

13) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

14) The Employer stated that it employed a total of 719 (as of 31 May 2023) permanent workers. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered “no” adding “The Company is not clear from the Union’s description of the bargaining unit which roles are included”.

15) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

16) Asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated “The Company is a joint venture owned 51% by Sonova Holding AG and 49% by Boots UK Limited. On 6 March 2023, four employees from the Data and Development department and two employees from the IT department raised a collective grievance relating to various aspects of their working arrangements (the “Grievance”). The letter setting out the Grievance highlighted seven areas of concern, previously raised informally. The Company was told that the Grievance was the driver for the request to recognise the Union. On 25 May 2023, the Company sent an outcome letter in relation to the Grievance, partially upholding the Grievance. Further clarity on the outcome was requested on 26 May 2023 and the Company is reviewing this currently. However, after receiving the Grievance outcome, those who raised the Grievance told the Company that they were impressed with the way this process has been dealt with and appreciated the work that has been put into working on a better way forward for all parties”.

17) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer referred to its previous answer detailing why it believed the proposed bargaining unit was not appropriate.

18) Finally, the Employer answered it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit. On whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer confirmed “None”.

5. The check of membership and support

19) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names and dates of birth. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 6 June 2023 from the Case Manager to both parties.

20) The information requested from the Employer and the Union was received on 12 June 2023. The Panel is satisfied that this check was conducted properly, impartially and in accordance with the agreement reached with the parties.

21) The list supplied by the Employer showed that there were 10 workers in the proposed bargaining unit. The list of members supplied by the Union contained 6 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 6, a membership level of 60.00%. A report of the result of the membership check was circulated to the Panel and the parties on 12 June 2023 and the parties’ comments invited

6. Parties’ comments on the membership check

22) In an e-mail to the CAC dated 12 June 2023, the Union stated “CWU has no comment to make – the report clearly shows that a majority of staff support CWU recognition for collective bargaining”.

23) In an e-mail to the CAC dated 14 June 2023, the Employer repeated the points it made in paragraph 16 above adding that it understood that there was no plan to appeal the Grievance. The Grievance had led to much better communication between the Employer and its employees in the relevant teams and work was already taking place to resolve the concerns raised in the Grievance. Recent one-to-one meetings between the Head of Transformation & Operations and each member of the Data and Development team and the IT team were very positive and the Employer considered there was a lack of understanding on what union recognition involved such that it was not clear to the Employer, notwithstanding that 60% of the proposed bargaining unit were union members, a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

7. Considerations

24) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

25) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 12. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

26) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the Union’s proposed bargaining unit. The membership check conducted by the Case Manager described in paragraph 21 above showed that 60.00% of the workers in the proposed bargaining unit were members of the Union. The Panel is satisfied that this check was conducted properly, impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

27) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

28) The Panel considers that, on balance, members of the Union would be likely to favour recognition of the Union for collective bargaining (60.00%). On the basis of the evidence before it, the Panel has decided that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule and accordingly, this test is also met.

10. Decision

29) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Naeema Choudry, Panel Chair

Mrs Susan Jordan

Ms Joanna Brown

21 June 2023