Decision

Bargaining Unit Decision

Updated 5 December 2018

Case Number: TUR1/1069(2018)

05 November 2018

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

Careline Lifestyles (UK) Ltd

1. Introduction

1) GMB (the Union) submitted an application dated 31 August 2018 to the CAC that it should be recognised for collective bargaining purposes by Careline Lifestyles (UK) Ltd (the Employer) in respect of a bargaining unit comprising “all support workers, care assistants, senior care assistants, carers, team leaders, domestics, maintenance workers, kitchen assistants, cooks, nurses and administrators”. “Management, Agency workers and contractors” were excluded from the application. The location of the bargaining unit was given as “Deneside Court, St Joseph’s Way, Jarrow, NE32 4PJ”. The application was received by the CAC on 6 September 2018 and the CAC gave both parties notice of receipt of the application on 7 September 2018. The Employer submitted a response to the CAC on 18 September 2018 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr David Crowe and Mr Paul Talbot. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 4 October 2018 the Panel accepted the Union’s application. This was followed by a period designed to allow the parties the opportunity to reach agreement on the appropriate bargaining unit (“the appropriate period”). The parties were informed in a letter from the Case Manager dated 4 October 2018 that the appropriate period would end on 1 November 2018 subject to this period being varied by the Panel. In a letter from the Case Manager dated 5 October 2018 the parties were informed that if no agreement on the appropriate bargaining unit was reached by the parties during the appropriate period the CAC would make a decision on the matter within a further 10 days and a hearing would take place in Newcastle-upon-Tyne on 2 November 2018.^{[footnote 1]} The letter stated that should a hearing be necessary the Panel would reach its decision on the basis of evidence in the form of written submissions from the parties which would be exchanged prior to the hearing. The parties were informed that they should send six copies of their statement of case to the Case Manager by noon on 24 October 2018 together with a list of the names of the people on their side who would be attending the hearing. The letter stated that both parties would be invited to elaborate and comment on the submissions at the hearing.

4) Neither party provided the CAC with its written submissions by the deadline of noon on Wednesday 24 October 2018. Later that day the Case Manager contacted both parties by e-mail and telephone to discuss the matter. The Union responded by a telephone call to the Case Manager the same day and a subsequent e-mail on Thursday 25 October 2018 at 9:47 in which it apologised for the oversight concerning the deadline for its submissions and requested an extension until noon on 26 October 2018. The Union subsequently sent its written submissions to the Case Manager by e-mail on Thursday 25 October 2018 at 12:28. The Case Manager made several attempts to contact the Employer’s Director of Operations and Nominated Individual, Mr Stockdale, following the expiry of the deadline. Mr Stockdale eventually responded to the Case Manager by e-mail at 10:57 on Thursday 25 October 2018 stating that he was “just back today” and “just picking up” the Case Manager’s e-mails and he would appreciate an extension until the following Monday. The Case Manager’s colleague, Mr Nigel Cookson, acting on behalf of the Case Manager, replied to the Employer by e-mail at 09:18 on Friday 26 October 2018 to inform him that the Panel Chair had considered the matter and required him to lodge his submissions by noon that day. At 11.01 on Friday 26 October 2018 Mr Stockdale sent an e-mail to Mr Cookson in which he apologised for his previous e-mail being unclear and said that he was unable to submit anything until Monday, when he was “back at … [his] desk.” In that e-mail Mr Stockdale stated that if agreed by the Panel Chair, he would make his submission by noon on Monday 29 October 2018. Mr Stockdale also stated that he wished to inform the Panel Chair that he had asked the Union if it would agree to extend the process to give the parties time to try and agree a voluntary arrangement. Mr Stockdale copied the CAC into an e-mail sent to the Union at 10:43 on Friday October 26 2018 which responded to an e-mail sent to him by the Union on 5 October 2018. In its e-mail of 5 October the Union had confirmed its willingness to meet the Employer to try to resolve the bargaining unit under discussion and to discuss voluntary recognition arrangements at that bargaining unit and indeed more widely if that was something that he was willing to discuss. The Union asked Mr Stockdale to tell the Union if it would like to meet and to give available times and dates from 15 October 2018. On 26 October 2018 the Employer suggested to the Union that the parties should meet early the following week to discuss this but also asked for an extension of the panel process to give time to try and find a way through this. The Union responded to this e-mail at 14:46 on 26 October 2018 stating that this was the first time that the Union had received a response to its overtures from Mr Stockdale and felt that it was too far down the line to stay the process at this juncture. The Union asked that the hearing should proceed on Friday 2 November 2018 as arranged. The Union emphasised its preparedness and goodwill in going down a voluntary route in due course.

5) Mr Cookson responded by e-mail to Mr Stockdale at 14:10 on 26 October 2018 to inform him that he had spoken to the Panel Chair who had noted the contents of Mr Stockdale’s e-mail and his commitment to supply his submissions for the hearing on Friday 2 November 2018 by no later than noon on Monday 29 October.

6) No written submissions in either electronic or hard copy form were received by the CAC from the Employer by the deadline of noon on Monday 29 October 2018. The Case Manager made several attempts to contact the Employer by telephone between noon and 14:40 in order to check whether the Employer had sent written submissions prior to the noon deadline which had not been received by the CAC. At 17:19 on 29 October 2018 the Case Manager’s colleague, Mrs Linda Lehan, acting on behalf of the Case Manager, wrote to Mr Stockdale to inform him that as the CAC had received nothing from him the Panel would proceed to make a decision on the basis of the material before it and that being so, the hearing scheduled for 2 November 2018 would not now take place. This e-mail reflected the view of the Panel that the Employer had been given ample opportunity to send its submissions.

7) At 22:34 on 29 October 2018 Mr Stockdale sent an e-mail to Mrs Lehan informing her that he had sent his written submissions to the Case Manager by e-mail at 15:10 that day. It subsequently transpired that these had not been received by the CAC until some time after they had been sent owing to a technical fault on the CAC’s system. The Panel was informed of this. The Panel noted that the submissions were sent at 15:10 on 29 October 2018 which was after expiry of the noon deadline. The Panel decided that it remained of the view that the matter should be decided on the basis of the material before it immediately following the expiry of the third deadline. The Case Manager wrote to the Mr Stockdale informing him of this decision at 16:55 on 30 October 2018. At 17:45 on 30 October 2018 Mr Stockdale wrote to the Case Manager stating that this was a “really unfair” decision. He asked for the decision to ignore his evidence to be reconsidered and if this was not forthcoming details of how to complain about the process. At 10:38 on 31 October 2018 the Case Manager wrote to Mr Stockdale stating that the Panel Chair had asked her to confirm the Panel’s position as stated in its letter of 30 October 2018 and stating that he should contact the CAC’s Chief Executive if he wished to complain about the process.

2. Summary of the Union’s submissions

8) The Union stated that on 5 October 2018 it had contacted the Employer to seek its opinion on the way forward with a view to entering negotiations on the bargaining unit. The Union said that at the time of writing it had had no contact from the Employer in respect of this e-mail. The Union stated that earlier in the process it had sent an e-mail to the Employer seeking a meeting about a way forward in respect of discussing partnership working with the Employer but that it had received no response.

9) The Union submitted that its proposed bargaining unit was appropriate. The Union reminded the Panel that the test was not whether the proposed bargaining unit was the most effective or desirable, only whether it was “appropriate”. The Union referred to the comments made by the Employer in its response to the Union’s application in which it had stated that Deneside Court was one of ten homes that the Employer operated and it was therefore not appropriate to recognise that individual home as a collective bargaining unit. In relation to the factors set out in paragraph 19 of the Schedule, the Union stated that were no existing local bargaining arrangements. The Union submitted that its proposed bargaining unit was neither small nor fragmented. The Union stated that it had written to the Employer in respect of two other bargaining units (Lanchester Court and St Stephens Court) within the Employer’s portfolio of homes, with a view to discussing voluntary recognition. The Union stated that whilst no response was forthcoming from the Employer, it showed that the Union viewed those establishments as discrete bargaining units in themselves.

10) The Union said that it had included within its proposed bargaining unit what it believed was relevant through existing membership of the Union and, on the balance of probabilities, through petitions signed by employees indicating that they would support the Union’s endeavours to gain recognition. The Union stated that it considered that Home Manager(s) should be excluded as they were responsible for supervising and managing members of the proposed bargaining unit and they were at effective management level.

11) The Union cited the CAC decision in Community and Four Seasons Healthcare Limited (TUR1/487/2006). The Union stated that this was a case in which the CAC had recognised a bargaining unit that was a residential care home of a national care home company. The Union also cited the CAC decision in GMB & Bondcare (TUR1/796/2012). The Union stated that this application was in respect of Donwell House. The CAC had accepted that this care home was an appropriate bargaining unit and then proceeded to a ballot and subsequent recognition agreement of it as a stand-alone bargaining unit. The Union cited other applications made to the CAC in respect of care homes as separate bargaining units which were subsequently withdrawn on the signing of a National Recognition Agreement with the Employer.

12) The Union pointed out that its national structure included nine geographic regions of which its Northern Region was one such Region. Each Region had its own managerial and operational autonomy to collectively bargain for workers in bargaining units, big and small, national and regional. The Union said that as part of that process the Employer had been approached on several occasions with a view to seeking discussion including a Regional Recognition Agreement for collective bargaining purposes, which in the Union’s view demonstrated that collective bargaining could be conducted at a regional and sub-regional level. The Union stated that the current application related to a regional application in which its Northern Region felt it had the necessary support by a clear majority of the workforce within the proposed bargaining unit to undertake collective bargaining for the purposes of recognition.

3. Considerations

13) 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 appropriate, 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.” The Panel’s decision has been taken after a full and detailed consideration of the views of the Union. The Panel has also had regard to the Employer’s response of 18 September 2018 and other material recorded in the Panel’s acceptance decision of 4 October 2018. For the reasons explained in paragraphs 6 and 7 above, the Panel has not read the Employer’s late submissions.

14) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel notes that it cannot 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, can it consider whether it is the most effective or desirable unit in that context.^{[footnote 2]}

15) The Panel considers that, in the absence of evidence to the contrary, the Union’s proposed bargaining unit is compatible with effective management. In its response to the Union’s application the Employer stated that Deneside Court was one of ten homes that the Employer operated and that it was therefore not appropriate to recognise that home as a collective bargaining unit. The Panel does not consider that the fact that Deneside Court is only one of ten homes of itself means that the Union’s bargaining unit is not appropriate. The Union’s proposed bargaining unit comprises a discrete, identifiable group at a single location which, according to information supplied by the Employer on 25 September 2018, consists of around 100 staff. ^{[footnote 3]} In its response to the Union’s application the Employer’s Director of Operations said that he was a regular presence in the Home. There would, therefore, be a structure for collective bargaining at the Home.

16) The Panel has also considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the bargaining unit to be compatible with effective management. Firstly, the Panel has taken into account the views of the Union and those of the Employer as known at the time immediately following the expiry of the extended deadline (see paragraphs 6 and 7 above). The Panel has no evidence that there are any existing national or local bargaining arrangements in this case. In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Union’s proposed bargaining unit would be the sole existing bargaining unit within the Employer’s undertaking. The Panel notes the statement by the Union that it had written to Employer in respect of two other bargaining units within the Employer’s portfolio of homes with a view to seeking voluntary recognition but had received no response. The Union submitted that this showed that the Union itself regarded these establishments as discrete bargaining units. The Panel does not consider that the Union’s view of the matter is determinative but is satisfied, on the balance of probabilities, that in the circumstances as they currently exist the Union’s proposed bargaining unit would not lead to fragmentation between bargaining units or fragmented collective bargaining. ^{[footnote 4]} As stated in paragraph 15 above, the Union’s proposed bargaining unit comprises a discrete, identifiable group which, according to the Employer, consists of more than 100 staff. Moreover, on the basis of the job titles provided by the Employer for the purposes of the membership and support check ^{[footnote 5]} it is easy to understand whether a given individual should be included within that bargaining unit. Fourthly, the Panel considers that workers within the proposed bargaining unit have sufficient common characteristics to fall within the same bargaining unit. All the workers in the proposed bargaining unit are based at a single location. The Panel is satisfied, on the basis of the evidence before it, that its decision is consistent with the object set out in paragraph 171 of the Schedule.

4. Concluding observations

17) The primary purpose of requiring written submissions from the parties by a specified deadline prior to a hearing is to enable those written submissions to be exchanged and to afford each party a fair opportunity before the hearing to read the submissions of the other party and to consider the case it needs to meet. The parties are given advance notice of the deadlines they are required to meet at the time that hearing dates are notified. Extensions to those deadlines are permitted only to the extent that they do not prejudice fairness to the other party. It is inconsistent with the fair and efficient operation of the recognition procedure for parties to send late submissions at the time of their own choosing.

18) The Panel notes that both parties in this case have expressed their willingness to explore a voluntary recognition agreement. The CAC encourages voluntary agreements and it remains open to the parties to explore a voluntary agreement in this case. The Panel will be happy to consider granting a stay at any stage of the proceedings if the request for a stay of a specified duration is made by both parties.

5. Decision

19) The appropriate bargaining unit is the Union’s proposed bargaining unit, namely “all support workers, care assistants, senior care assistants, carers, team leaders, domestics, maintenance workers, kitchen assistants, cooks, nurses and administrators” excluding “management, agency workers and contractors” at “Deneside Court, St Joseph’s Way, Jarrow, NE32 4PJ”.

Professor Gillian Morris

Mr David Crowe

Mr Paul Talbot

05 November 2018

1. The 10-day period specified in the letter reflects the CAC’s statutory obligation to decide the matter within the period of 10 working days starting with the day after that on which the appropriate period ends: paragraph 19(1) of the Schedule to the Act. ↩

2. R (Cable and Wireless Services UK Ltd v Central Arbitration Committee [2008] EWHC 115 (Admin), Collins J at [9]. ↩

3. Acceptance decision of 4 October 2018, paragraphs 16-20. In an e-mail to the CAC dated 19 September 2018 the Employer said that it operated with about 100 staff members but that the number could fluctuate. The list supplied by the Employer on 25 September 2018 for the purposes of the membership and support check indicated that there were 102 workers in the Union’s proposed bargaining unit. As recorded in the acceptance decision the Union considers that there are 58 workers in the bargaining unit: see paragraph 17. ↩

4. See Lidl Ltd v Central Arbitration Committee [2017] EWCA Civ 328 at [36]-[38]. ↩

5. Acceptance decision of 4 October 2018, paragraph 20. ↩