Decision

Bargaining Unit Decision

Updated 20 April 2021

Case Number: TUR1/1152/2019

19 April 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

The Parties:

GMB

and

The Devonshire Group

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 18 December 2019 that it should be recognised for collective bargaining by The Devonshire Group (the Employer) for a bargaining unit comprising “The Guides Team at Chatsworth House”. The application was received by the CAC on 18 December 2019 and the CAC gave both parties notice of receipt of the application on 19 December 2019. The Employer submitted a response to the CAC, dated 6 January 2020, 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr David Crowe, who was subsequently replaced by Mrs Maureen Chambers, and Ms Virginia Branney. The Case Manager appointed to support the Panel was Linda Lehan.

3) By a decision dated 14 January 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A hearing was to be held on 17 March 2020 but, due to the COVID pandemic, it had to be cancelled. Both parties had wanted to hold out until a live hearing could be arranged, but due to the length of time that had elapsed they agreed to a Zoom hearing which was held on 12 March 2021. The names of those who attended the hearing are appended to this decision.

4) The Panel is required, by paragraph 19(2) of the Schedule to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. In order to accommodate the hearing, the Panel extended the period within which it must make its decision to 20 April 2021.

5) As well as the bundles that were provided to before the hearing, the Panel also received statements of case from both Mr Mick Coppin (GMB Organiser) and Mrs Julie Davison (Head of HR & Safety Devonshire Group). Both the Panel and the parties asked questions of Mr Coppin and Mrs Davison at the hearing.

2. Findings of Fact

6) After considering the evidence and submissions, the Panel made the following relevant findings of fact.

7) The Devonshire Group (The Group) is a group of legal entities, including a series of trusts that manage estates, companies, and charitable trusts. Currently, The Group does not recognise any trade union and there are no other applications pending. The Group engages employees on three main sites. The Chatsworth Settlement Trust (CST) owns and manages the Chatsworth estate in and around Derbyshire, the Bolton Abbey estate in North Yorkshire and property in Eastbourne, London and elsewhere in the UK. The Chatsworth Estate Trading Limited (CETL), operates the retail and catering outlets on the Chatsworth House site and the Chatsworth Estate Farm Shop. The Chatsworth House Trust (CHT) is a charity which leases the House, Gardens and Park from CST at a nominal rent and operates the visitor business at Chatsworth House. CHT has a wholly owned subsidiary, Chatsworth House Enterprises Limited (CHEL), which runs the events in the park and attracts sponsorship for both CHT’s and CHEL’s activities.

8) The entire Group is managed by the Devonshire Group Board of Directors. Payroll, Human Resources, IT, Finance, Health and Safety, support services and sustainability for the Group are centralised. At the time of the application, The Group engaged approximately 1,400 employees and workers in the United Kingdom. Approximately 900 employees and workers worked under the Chief Operating Officer, at Chatsworth House, Gardens, Stables, Retail, Farmyard and Estate Farm Shop.

9) The Proposed Bargaining Unit (“PBU”) of the “Guides team within Chatsworth House” originally comprised 76 of the 1,400 or so employees employed by the Group in the UK. Of those 76, 42 were engaged on seasonal permanent employment contracts, working 10 months per year, and 34 were engaged as casual workers (employees when they were actually working). In addition, 10 of the Guides fulfilled additional roles in the Group, although when they did so they were provided with additional contracts for those roles.

10) All Guides within the PBU are managed and supervised as part of the Visitor Experience department. The Visitor Experience department is managed by the Head of Visitor Experience & Marketing, who reports into the Chief Operating Officer. There is no separate management for the Guides. Visitor services also encompasses Marketing, Farmyard & Adventure Playground, Events and Visitor Interpretation & Engagement.

11) The Group’s businesses are seasonal, which means that employee numbers fluctuate across the year, with the largest number engaged in the Summer and during the Christmas period. This previously included many casual workers to allow for flexibility due to the seasonality of demand. Employees take on additional roles to their main duties at particularly busy times. This increases significantly during special events.

12) Changes to terms or benefits are agreed centrally at Board level. Group pay scales were introduced in or around 2002 as part of a programme to ensure fairness. The employer stated that all the Group’s employees and workers are paid on the same pay scale - including those within the PBU - barring a very small minority of people on legacy rates of pay. The current pay scale has five grades. This pay scale also has separate rates of pay for employees under the age of 21. The Guides are all paid in accordance with Grade 1, which is also known as the “estate rate” and is closest to the Living Wage. There were, at the time of the application, approximately 570 employees across the Group engaged on the same rate as those in the PBU (Grade 1).

13) The next grade up is Craft Grade/Assistant Supervisor, which has three bands, followed by Grade 3 Skilled Craft/Supervisor and Grade 4, Internal Department Manager. Grade 5 covers Senior Department: Manager/Department Specialist. Pay bands exist in all grades above Grade 1. As we have said, Grade 1 has a single ‘estate rate’. Grades 2 and 3 are both comprised of three bands. There are six bands in Grade 4 and seven bands in Grade 5. All the Grades and bandings have hourly rates of pay. A number of exercises have taken place since 2002 to benchmark and rationalise these grades and bandings.

14) Grade 1 Guides report to the Supervisor for Visitor Experience in the first instance. This initial reporting line is for issues relating to the rota and day-to-day management. Then, as set out in the job description, the next level up is Senior Supervisor Visitor Experience Team. These Supervisors carry out appraisals and more general people management for the Guides as well as for the Visitor Experience team. Next up in the line is the Visitor Services Manager who is salaried and above Grade 5. The Visitor Services Manager reports to the Head of Visitor Experience. Those employed at the level beyond Grade 5 have bespoke salaries.

15) The purpose of the role of a Guide, as set out in the job description, is described as proactively welcoming and engaging with visitors, and to share the Chatsworth’s Stories, its collection and its people. The main duties and responsibilities of Guides include delivering talks and tours to individuals, groups and education visitors. Guides are also required to provide accurate and up-to-date information in a warm and enthusiastic manner, tailoring that information to each visitor’s needs.

16) The contracts of employment for Guides, and also for Visitor Welcome Assistants, provide that they are required to attend work during the ‘open season’ only. Both contracts go on to say that during the ‘closed season’ there will generally be no work available, and they will not be required to attend for work. Guides wear a uniform which is provided for them. This is the same uniform worn by others within the Visitor Services Group.

17) Visitor Experience Assistants and Guides both receive compulsory common training. In addition, Guides are told to familiarise themselves with room cards, the documents which provide information about the parts of the house they work in. Both Guides and Visitor Experience Assistants work on a rota-based system. Their contracted hours tend to be 12, or 16 per week with some on other hours.

18) The HR function serves the whole of the Group. Previously, the businesses within the Group operated independently. Policies and procedures shared across the Group are contained in a Group Handbook. The introduction to the Staff Handbook provides that the policies and procedures form part of the terms and conditions of employment. They include standardised employee benefits and discounts. Annual pay is decided centrally in April every year. A flat rate for overtime is paid across the Group.

19) Efforts were made to centralise and harmonise terms and conditions and policies because, at the employer’s own admission, there was a lack of transparency and discrepancies existed, in relation to, for example, the provision of life assurance, pensions, holiday entitlement and overtime rates, which were difficult to justify and adversely impacted on employee relations.

20) During the past 20 years, the employer has made significant progress in harmonising terms across the Group, which has improved employee relations and brought greater consistency and fairness. The main terms and conditions of employment are uniform across the Group (with the exception of some historical anomalies). These uniform terms relate to holiday entitlement, sick pay, pay (to the extent that it is linked to the established grades and banding), and pension (save for those who joined prior to 1999). Although anomalies remain, the numbers are small and are reducing over time as employees on these legacy terms, leave the workplace.

21) Employees are able to move and are promoted to new jobs in different parts of the business. During 2019, there were 37 internal promotions of which 5 resulted in a department or business move.

22) The Group was forced to close Chatsworth House and the Farmyard during the pandemic. All major events were cancelled and all the hotels in the group, restaurants and shops were also closed. Although there was a brief window when visitors were permitted at Chatsworth House, numbers were significantly reduced. Unfortunately, as is the case in other hospitality businesses, downturn in revenue is unprecedented. Steps were taken by the employer prior to the announcement of the Government’s Coronavirus Job Retention Scheme (CJRS), including continuing to pay all permanent staff four weeks’ pay. When the CJRS scheme was announced all workers who could not work, including those in the PBU, were furloughed from March 2020. As the businesses began to open, permanent staff were brought back from furlough only to be re-furloughed when the businesses closed again. Many of the casual workers remained on furlough until the end of the season in January 2021. The Group topped up furlough payments to 100% to the end of May 2020 and then to 90% for the June to July 2020 period.

23) There have been 22 redundancies in the Group since March 2020, across all departments. Of the 76 employees who were originally in the PBU, 34 were casual workers and 42 were seasonal permanent workers. As of March 2021, this reduced to only 39 seasonally employed workers with 6 outstanding vacancies. Of these, one is covering sickness absence and so if the vacancies were filled the PBU would comprise 44 individuals. Many of the casual workers were issued P45s. Some of the casual workers became seasonal permanent employees. As of March 2021, the total number employed by the Group is 855 (not including Ireland), which is down from 1400 in January 2020.

3. Summary of the submissions made by the Union

24) The Union explained that its PBU was brought about by requests from the Guides Team at Chatsworth House seeking out the GMB Trade Union for membership and support. According to the Union, although they had members on site, historically this group of Guides all joined together very quickly as a result of what were said to be imposed Christmas working and associated conditions in 2018/19, followed by cuts to contractual hours.

25) The Union stated that their proposed bargaining unit did not cut across any existing national or local bargaining arrangements and their members genuinely desired recognition. They also pointed out that all the workers in the PBU were permanently based at one site and creating such a bargaining unit could enhance effective management.

26) According to the Union, although those in the PBU received very similar rates of pay to some other employed roles this was only because in recent years increases had taken place due to the National Living Wage. The Union argues that the PBU of the Guides Team possessed “many almost unique” characteristics such as training, daily briefings, uniform and a separate rota which lent itself easily to a bargaining unit that could be considered as a separate group. The Union believed that the Guides Team had no comparators or very close role comparisons throughout the Devonshire Group of businesses. The Union said that although most workers were on a national pay scale this was not unusual (e.g. in the NHS, LGA) but large organisations still needed to have manageable groupings of staff, roles and structure compatible with ease of efficient functionality.

27) The Union argued that the alternative bargaining unit put forward by the Employer, consisting of the whole Devonshire Group of 1400 employees (at the time of their submission), could not possibly be considered an appropriate bargaining unit because of its UK wide varied locations, densities of staff and diverse roles.

28) The Union’s understanding was that the Guides Team, though part of an overall workforce, were located at Chatsworth House only, and were only loosely part of the Visitor Experience cohort of staff at this location. The Guides, according to the Union, were managed and controlled on a day-to-day basis as a separate group of staff with different rotas, uniforms, working hours, and skills which include educational interaction with the tour visitors and private groups.

29) The Union stated that the Guides Team were a clearly identifiable group and were likened to the Yeoman Warders (Beefeaters) whose special uniform and job role were very similar. It was argued that Beefeaters are employed in a charitable visitor attraction similar to Chatsworth House. Beefeaters are included in one of the union’s recognition agreements.

30) The Union stated that the current job advert for Guides Team Members on Indeed (set out below) evidences the employer’s interpretation of the role offered to a new starter on a 12 hours contract over varied hours and shifts. This, they say, is illustrative of the fact that there were no other job roles the same or similar within the Devonshire Group.

INDEED JOB ADVERT (24/02/2021)

Do you enjoy engaging with members of the public and have an interest in history and art?

You will be integral to the enjoyment of our visitors, bringing the history of Chatsworth alive as you proactively share your knowledge of the exhibitions art displays and fabric of Chatsworth. You will create a warm and engaging welcome for our visitors. Using your understanding of the visitor route and security procedures, you will also help safeguard the security of the house, our visitors and the collection.

With training, you will have the opportunity to deliver short talks and tours, both in the house and garden. Excellent communication skills and the willingness to learn is a prerequisite.

To succeed in this role you will be an approachable person who enjoys variety in their role, ranging from costumed interpretation through to walking tours in the garden.

31) The Union stated that concern has been expressed to them about issues relating to health and safety, breaks, shift arrangements as well as alleged changes to contractual terms. They argue that local effective union representation would prevent miscommunication issues and improve relations between the Guides and the employer.

32) Finally, the Union stated that since the increase in Trade Union membership within the Guides Team and the application for recognition, the Employer had made changes to try and integrate the Guides much more into the Visitor Experiences Team, by changing the staff coffee room layout and lockers etc. Despite such attempts at integration the Union maintain that the Guides were still very separate and different in all important identifiers.

4. Summary of the submissions made by the Employer

33) The Employer put forward an appropriate bargaining unit as one comprising of all of the Group employees, excluding the Board, and those employees employed in Ireland.

34) The Employer believed that the bargaining unit put forward by the Union would cut across multiple boundaries of pay, terms, management, budget and support functions. They point out that the PBU now represents an even smaller fraction (4.56% from 5.43 % in March 2020) of the general workforce.

35) The Employer asserts that the PBU was not managed separately and did not have a separate management structure. According to them, a centralised structure for pay and terms and conditions meant that decision and communications were streamlined and fair and would be hindered if the proposed bargaining unit was in place. The Employer stated that the COVID 19 pandemic had clearly underlined the necessity and appropriateness of the centralised approach undertaken by them in terms of decision-making and implementation concerning staffing matters (such as furlough, pay freezes, safety, holiday matters etc). The Employer felt that approach was important to the viability of the business and continuing to operate and implementing that approach Group wide would help to ensure the business maintained effective management for the future.

36) The Employer also stated that uniformity across staff was not just a matter of convenience, but necessary in fairly managing a large, seasonally fluctuating workforce where employees frequently took on, or were promoted to, alternative roles in different parts of the business. Previous, separate management, negotiation, and terms for small parts of the Group had, according to the employer, led to a whole range of inconsistent terms and pay causing significant difficulties in managing the business.

37) The Employer stated that the role of the Guides was not a standalone role, but rather one which is part of a large and interrelated group of employees who deliver what was described as ‘the visitor experience’ doing sometimes different but equally valuable work. The Employer’s fear was that if such a small PBU was adopted other such groups would seek to require separate bargaining about terms and conditions across a series of locations.

38) The Employer stated that there was nothing materially unique about the PBU that rendered it appropriate to have a separate bargaining unit, especially where, as here, the interests, terms and pay of all those doing the work in the Group are fundamentally and closely interrelated.

39) They argue the geographical distinction was an artificial and inappropriate one in determining the effective management and bargaining forum for the employees of the Group in this case.

40) Finally, the Employer stated that the inappropriateness of the PBU has become even more pronounced as the Group faced financial and operational uncertainly. Conclusions

41) The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and amplified at the hearing. The Panel is required by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be so, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

42) The Panel is first tasked with determining whether the bargaining unit proposed by the Union is appropriate. The Panel should not reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, should it consider whether it is the most effective or desirable unit in that context. There is no requirement on the Panel to seek to identify a more appropriate bargaining unit if it finds that the union’s proposed bargaining unit is appropriate. However, we note that paragraph 2(3) of the Schedule states that “References to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition”. It is the bargaining unit set out in the union’s request that we must first assess.

43) The determinative question therefore is simply whether the PBU is “appropriate”. Although the term is not defined, we are obliged to take into account the matters specified in paragraph 19B (2). We also note that among those matters the need for the unit to be compatible with effective management, as specified under (a), clearly has primacy over the sub-paragraph (3) matters (brought in via (b)). That appears from the provision that the latter are only to be taken into account “so far as they do not conflict with that need”. However, the considerations covered by the two heads under paragraph 19B (2) are not wholly distinct: to a considerable extent the assessment of the sub-paragraph (3) matters will feed into the assessment of the compatibility of the unit with effective management.

44) The primary argument advanced by the Union is that the PBU possesses “many almost unique” characteristics which lend themselves easily to a bargaining unit. These are said to include training, a daily briefing, uniform and a separate rota. We have found that Visitor Experience Assistants and Guides both receive common compulsory training. Both Guides and Visitor Experience Assistants work on a rota-based system, and Guides have the same uniform worn by others within the Visitor Services Group. Guides also deliver only part of the customer experience.

45) We do not accept that the Guides Team have no comparators or no close role comparisons throughout the whole group of the Devonshire group of businesses. There is no separate line management for Guides. The same Supervisors carry out appraisals and more general people management for the Guides as well as for the Visitor Experience team. The Guides form part of a large and interrelated group of employees.

46) There are a number of compelling reasons why the PBU is not appropriate and not compatible with effective management. Not only would it cut across common boundaries relating to pay, other contractual terms and management, but there is the added complication that, at the time the application was made, 10 Guides fulfilled additional roles in the Group. In addition, there are a number of sector specific factors which militate against such a small and narrowly defined PBU. Broad contractual uniformity has proved to be an important factor in fairly and effectively managing what has been a large and seasonally fluctuating workforce. This is especially so when Guides, and others, take on or are promoted to alternative roles in different parts of the business.

47) We obviously factor in and take account of the differing views of the union and the employer. It is also relevant that there are no other collective bargaining arrangements. Fragmentation is not an issue, in the sense that the Union’s proposed bargaining unit would be the sole existing bargaining unit within the Employer’s undertaking and there is no evidence of any current demand elsewhere. The PBU would therefore not involve fragmentation between bargaining units or fragmented collective bargaining. Although all the employees in the PBU are located at one site the centrally managed structure renders the geographical distinction less important in managerial terms.

48) Appropriateness must also be considered in the context of the desirability for both agile and equitable management, both during and in the aftermath of the pandemic. The ability to navigate, not only the choppy waters of an unprecedented downturn in demand but also the response to Government schemes and regulations, inevitably requires clear, effective and focussed management. Potential fragmentation of terms and a move away from a previous long-term goal of standardisation, risks compromising effective management not only of the PBU but also of the wider business. We conclude that adopting the PBU would not encourage and promote fair and efficient practices and arrangements in the workplace, particularly in the current climate.

49) Accordingly, for these reasons we conclude that the PBU is not appropriate. When coming to our conclusion on this issue, we have been careful not to reject the PBU because we feel that a different unit might be more appropriate. We have also been careful not to consider whether the PBU is the most effective or desirable unit.

50) We therefore move on to consider, under paragraph 19(3), a bargaining unit which is appropriate. As we have set out, the bargaining unit proposed by the employer was one comprising of all of the Group employees, excluding the Board, and those employees employed in Ireland.

51) The move towards a uniformity of terms and conditions led to the introduction of a pay structure (the Group’s Pay Scale) with separate pay rates for employees under 21 years of age and grades which range from Grades 1 to 5. Beyond these Grades, employees have what were described as bespoke salaries. It is not only members of the Board who exceed these Grades but also lower levels of management, down to the Visitor Services Manager. In the industrial relations experience of the Panel, many organisations retain separate pay arrangements for senior management having harmonised grading and pay structures for employees below that level. Accordingly, in this case, a bargaining unit excluding employees above Grade 5 would not undermine centralised decision-making in relation to pay scales and bandings as those decisions are not applied to the salaries of employees above Grade 5.

52) We conclude that the appropriate bargaining unit in this case comprises all Group employees excluding those beyond Grade 5 and excluding those employed in Ireland. In our judgment, this will facilitate the promotion of fair and efficient practices and arrangements in the workplace. It will not cut across existing boundaries such as to hinder effective management. However, it also takes account of the limits of uniformity within the Group.

Panel

Mr Rohan Pirani, Panel Chair

Mrs Maureen Chambers

Ms Virginia Branney

19 April 2021

5. Appendix

Names of those who attended the hearing:

For the Union

Mr Mick Coppin (GMB Organiser)

Mr Ricco Rixon (Legal Representative, Simpsons Solicitors)

For the Employer

Deshpal Panesar QC (Old Square Chambers)

Alice Yandle (Legal representative, Farrer & Co)

Sophia Coles (Legal representative, Farrer & Co)

Julie Davison (Head of HR & Safety)

Andrew Lavery (Chief Financial Officer)

Ted Cadogan (Chief Operating Officer)

Mary Marsden (HR & HR Systems Manager)