Decision

Paragraph 35 Decision

Updated 22 December 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1509/2025

22 December 2025

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER PARAGRAPH 35 OF THE SCHEDULE APPLIES TO THE APPLICATION

The Parties:

GMB

and

Diamorph (Formerly Permali)

1. Introduction

1)         GMB (the Union) submitted an application to the CAC dated 13 November 2025 that it should be recognised for collective bargaining purposes by Diamorph (Formerly Permali) (the Employer) for a bargaining unit described as “all those involved in production work.”

2)         The location of the bargaining unit was given as Frank Perkins Way, IRLAM, Salford M44 5PP. The application was received by the CAC on 13 November 2025, and the CAC gave both parties notice of receipt of the application on 13 November 2025. The Employer submitted a response to the CAC dated 19 November 2025 which was copied to the Union.

3)         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 Mr Benjimin Burgher, Panel Chair, and, as Members, Mr Sean Starbuck and Ms Amanda Ashworth. The Case Manager appointed to support the Panel was Joanne Curtis.

4)         The Panel extended the period for it to decide if the Union’s application was admissible until 16 January 2026 to allow time for the Panel to consider its decision on a point raised under paragraph 35 of Schedule A1 to the Act (the Schedule).

2. Issues

5)         The Panel is required by paragraph 15 of 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

6)         In its application to the CAC the Union stated that it had made its request for recognition to the Employer on 23 October 2025. The Union explained that the Employer had responded by letter of 5 November 2025 in which it said: “At the point of transfer, we had assumed that existing recognition would have transferred with the TUPE exercise that was concluded earlier this year. However, since this exercise, there have been organisational changes within the production team, namely, shop floor headcount having reduced and a marked decline in union membership. We also note there are currently no site union stewards in post. Given these changes, we do not believe that continued formal recognition of the union is currently representative of our workforce and we seek to reject your request/feel it’s sensible to seek de recognition as we maintain our commitment to open, direct, and constructive communication with all employees on matters relating to their employment. That said, we are open to constructive dialogue and would welcome a meeting to discuss the current situation. Please let me know your availability over the next week or two so we can check our schedule.”

7)         In a further email dated 6 November 2025 the Employer said “following further investigation into this I confirm that we reject the request for recognition from GMB. The reason being we already have a registered agreement with another trade union.” In an email from the Union to the Employer dated 6 November 2025 the Union said “before I commence with the formal process of applying for recognition, I wish to highlight that to my knowledge there is no recognised Trade Union as you mentioned in your first communication. In my experience it is good practice to engage with the informal process and allow GMB to meet with the SMT to fully represent the wishes of its membership as to not create an adversarial stance that doesn’t reflect good employee relations. I look forward to your revised position and a holistic approach to our meeting.”

8)         The Employer responded again on 6 November 2025 to say “I’d like to be clear I haven’t mentioned in my communication that there was no recognised union. There was confusion from our side initially as to why you were seeking recognition when we already felt this recognition was in place. As I confirmed in my last communication, this has been cleared up by identifying it wasn’t GMB that has recognition, but in fact another Union. Hence why we don’t accept your request for recognition as the other union has sole negotiating rights.” The Union responded to this the same day asking the Employer to confirm “that because GMB have now made an approach for recognition that you now recognise another Trade Union that does not reflect its membership density? I have been informed that at the point of TUPE from Permali to Diamorph that you did not accept the transfer of recognition hence why GMB was contacted and will now pursue recognition.”

9)         A further email was sent by the Employer on 10 November 2025 explaining that the Employer was not now recognising another union following the GMB’s request to seek recognition, but that the recognition was already in place and that the information the Union had been provided with regarding TUPE was incorrect. A copy of all the above correspondence was attached to the Union’s application.

10)       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, it had not proposed that Acas should be requested to assist the parties.

11)       The Union said that it did not know the total number of workers employed by the Employer. The Union said that there were 20 workers in the proposed bargaining unit, of whom 19 were members of the Union. When asked to provide evidence that the majority of the workers in the bargaining unit were likely to support recognition for collective bargaining, the Union stated that it was willing to provide membership details to the CAC Case Manager on a confidential basis to enable a statistical check to be carried out. The Union said that it was also prepared to provide petition evidence to the CAC Case Manager on a confidential basis.

12)       The Union stated that the reason for selecting the proposed bargaining unit was because it was a traditional bargaining unit and comprised of hourly paid workers below the level of the Engineering Manager. The Union added “we believe this makes sense and is compatible with effective management.” The Union said that the proposed bargaining unit had not been agreed with the Employer.

13)       The Union confirmed that it held a current certificate of independence. The Union answered N/A when asked if it had copied its application and supporting documents to the Employer but was later able to confirm that this had been done on 20 November 2025 after the application had been submitted to the CAC.

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

14)       In response to the Union’s application the Employer stated that it had received the Union’s formal request for recognition by email on 23 October 2025. The Employer explained that it responded by rejecting the Union’s request on the basis that there was already a recognition agreement in place with Unite that covered the workers in the Union’s proposed bargaining unit.

15)       The Employer stated that it had not, before receiving a copy of the application form agreed the bargaining unit, and added “we already have an agreement with another trade union and so we cannot agree to a request from GMB.” The Employer stated that following receipt of the Union’s request it had not proposed that Acas be requested to assist.

16)       The Employer stated that there were 28 workers in the Union’s proposed bargaining unit. When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “Yes” and that it was willing to provide this on a confidential basis.

17)       When asked whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said, “they haven’t disclosed any list for us to review and determine why they may have excluded particular employees.” When asked whether it considered a majority of the workers in the bargaining unit were likely to support recognition, the Employer said, “this is unknown by us given we have another agreement in place with another union we haven’t discussed this with our workforce to determine.”

18)       When asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer answered “unknown”. When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer stated, “not received any recently as there is already a recognised union agreement in place.”

19)       From a perusal of the Union’s application and the Employer’s response it was apparent that there was a preliminary issue in dispute, namely: whether the application was inadmissible under the provisions of paragraph 35 of the Schedule. This provides that an application, in accordance with paragraph 11 or 12 of the Schedule, is not admissible if the CAC is satisfied that there is already in force a collective agreement, under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the bargaining unit proposed by the union.

5. Additional comments from the parties and Unite

20.       On 19 November 2025 the Case Manager wrote to Unite as a party having an interest in the matter within the meaning of paragraph 35(5) of the Schedule. Unite was asked to clarify its position in relation to recognition with the Employer. In an e-mail to the CAC dated 27 November 2025, Alison Treacher, Regional Officer, Unite the Union stated: “We believe there is a collective bargaining agreement with Tenmat who were originally located in Trafford Park Manchester. When they moved site, we continued with pay negotiations for 2025-26 for Tenmat but also Diamorph Manchester who some of our members TUPE transferred too. There was a ballot and acceptance from the employees and it halted a potential dispute with the employer. It is our understanding that we have a recognition and collective bargaining agreement with Tenmat and Diamorph Manchester following the TUPE transfer. We also have a check-off agreement and recognised reps at both workplaces.” Unite the Union attached the following correspondence to evidence its position:

• Letter dated 18 February 2025 from the Employer to the Unite Regional Officer

• Letter dated 23 May 2025 from the Employer to the Unite Regional Officer

• Email exchange dated 27 June 2025 between Unite Regional Officer and a Unite workplace representative.

21)       By a letter of the same date, the CAC also wrote to the Employer and asked it to submit to the CAC any documentary evidence to support their assertion that there was a recognition agreement in force. The Employer attached the following correspondence to evidence its position:

• Letter dated 23 May 2025 from the Employer to the Unite Regional Officer

• Letter dated 18 February 2025 from the Employer to the Unite Regional Officer

• 27 June 2025 Union activities and negotiations. 2024 COL negotiations and agreement going forwards

• 27 June 2025 redacted 2024 COL ballot result

• 16 April 2025 Letter from Unite Regional Officer confirming elected workplace stewards for Diamorph

• 21 January 2025 Announcement by Diamorph

• 31 January 2025 Letter from Diamorph confirming TUPE transfer

22)       The CAC copied the documents from Unite and the Employer to the Union and its comments were invited. In an email dated 27 November 2025 the Union said that from discussions with its members there were two separate entities. Tenmat that held a recognition agreement with Unite and Diamorph that took over Tenmat. The Union went on to say “Diamorph already existed and were a non-unionised site, as it was prior to the tupe transfer Diamorph accepted a joint pay claim, there was no recognition between Diamorph and unite. I was contacted by workers within Diamorph and requested that GMB seek a recognition agreement with Diamorph as unite were unable to convince Diamorph to recognise unite the union. I have a text message from unite officer to a contact of this vain. GMB are not in dispute that a recognition agreement existed with Tenmat. A membership density check would prove the fairest way forward for those employed at Diamorph and an employer should not have the say in which Trade Union they wish to recognise especially as the membership that was with unite have now defaulted to GMB.”

6. The Hearing

23)       In view of the conflicting information received by letter dated 8 December 2025, the Case Manager informed the parties that to assist the Panel’s consideration of paragraph 35, it intended to hold a hearing to determine, as a preliminary issue, the question of whether the GMB application was rendered inadmissible by the existence of an agreement between the Employer and Unite. The parties were informed that, consequently, the Panel would not address the other validity and admissibility provisions unless it was decided that the GMB application was not rendered inadmissible by paragraph 35. Unite were also invited to attend in order to assist the Panel with any enquiries it may have during the hearing. In advance of the hearing the parties were invited to supply the Panel with, and to exchange, written submissions specifically addressing paragraph 35 of the Schedule. A virtual hearing was held on 17 December 2025 and the names of those who attended the hearing are listed in Appendix A to this decision.

24)       According to paragraph 35, a union’s application to the CAC made under paragraph 11 (as in this instance) is not admissible if the CAC is satisfied that there is already a collective agreement in force under which a union is recognised for the purposes of collective bargaining on behalf of any workers falling within the bargaining unit proposed by the Union. A collective agreement is defined by section 178 of the Act as any agreement or arrangement made by or on behalf of a trade union and an employer relating to matters such as terms and conditions of employment and the machinery for negotiation. 

7. Summary of the submissions made by the Union

25)       The Union submitted that there was no collective agreement already in force under which Unite were recognised to conduct collective bargaining on behalf of any workers falling within its proposed bargaining unit.

26)       The Union explained that on 3 September 2025 the GMB was contacted by ex-members of unite the union employed at Diamorph, Manchester site. The Union said that this was because following the TUPE transfer of employees from Tenmat to Diamorph, Manchester site. Diamorph employees were included within the Tenmat pay talks due to the TUPE transfer but would not be included in subsequent years as no recognition agreement was in place. The Union said this was evidenced in the correspondence from the Employer dated 27 June 2025 and signed by the Unite representatives employed at Tenmat at the time.

27)       The Union said that it does not dispute that Unite represents those at Tenmat, nor that Unite included those employed at Diamorph for the purposes of the 2024 pay. The Union said that it does dispute that any recognition agreement was ever formalised between Unite and Diamorph. The Union produced a text message dated 3 September 2025 between both the previous Unite Officer Alison Treacher and a Unite member at the time in support of this. Which said “this is disappointing. I have arranged meetings with Tenmat and Diamorph. It is hard to negotiate a way into the workplace with no recognition agreement, reps nor consent from the employer. I hope we will be able to prove ourselves moving forward but I understand your concerns. I can only do so much in this respect. The only other thing I can suggest is a teams meeting of current membership but this of course would not be in work time.” The Union also produced a text message of an exchange between HR and a Unite representative in which a copy of the recognition agreement was requested and the response was “we don’t have one, Unite are aware of this.”

28)       The Union referred to the Employer’s initial response to the voluntary request for recognition dated ….  Which stated “At the point of transfer, we had assumed that existing recognition would have transferred with the TUPE exercise that was concluded earlier this year. However, since this exercise, there have been organisational changes within the production team, namely, shop floor headcount having reduced and a marked decline in union membership. We also note there are currently no site union stewards in post. Given these changes, we do not believe that continued formal recognition of the union is currently representative of our workforce and we seek to reject your request/feel its sensible to seek de-recognition as we maintain our commitment to open, direct, and constructive communication with all employees on matters relating to their employment”. The Union said that this clearly showed that the Employer had confused GMB’s application with an application by Unite the Union to recognise them. The Union said that it would not make sense that Diamorph refer to a ‘decline in membership’ had it not been referring to Unite the Union. The Union suggested that potentially a U-turn had occurred and Diamorph were now stating that it recognised Unite but with no formal representation after the 2024 pay talks.

29)       The Union said that it had written to Unite suggesting joint recognition as it believed whatever the CAC outcome was it should not be for the Employer to say which Union it recognised, but for the members. The Union said that there should be a membership density check as it was unfair for a company to recognise a union that had no members at Diamorph. The Union fully accepted that the agreement with Unite and Tenmat would remain, and its arguments related solely to Diamorph. The Union reiterated that in communications with them the Employer had been confused and the correspondence appeared to suggest that the Employer thought it was corresponding with Unite and not the GMB putting forward the fact that due to declining membership and organisational change that the Employer was looking to serve notice on Unite to terminate recognition.

30)       The Union concluded by stating that its application was therefore admissible under paragraph 35 of the Schedule.

8. Summary of the submissions made by the Employer

31)       The Employer said that there was an existing agreement with Unite, its recognised Union. The Employer said that this was evidenced in the documentation it had submitted and demonstrated collective bargaining with Unite, including negotiations on pay during the current year and a cost-of-living review which occurred and concluded post the TUPE exercise. The Employer said that Tenmat underwent restructuring in January 2025, after which a group of employees TUPE’d from Tenmat to a new division (Diamorph Manchester, a division of Permali Gloucester Ltd) of which all entities remained under the Diamorph Group. The Employer said that Unite was consulted on the TUPE. The union representatives were involved in the TUPE transfer and TUPE’d over to the new entity (Diamorph Manchester).

32)       The Employer said that it was agreed that for the 2025 cost of living, the HR team would continue to represent both divisions for negotiation with Unite. The Employer said that this decision was taken/agreed for continuity purposes with negotiations. The Employer said that this concluded in July 2025. There was then a handover of HR responsibilities to the new team in July/August 2025. The Employer said that it had since been made aware that Tenmat had then conducted an exercise to elect their own representatives so that their collective bargaining could continue to take place. The Employer explained that the letters provided as evidence (named ‘TUPE Confirmation Letter’) was a redacted copy of the letter that was sent to the Diamorph Manchester employees explaining the engagement with the union representatives and the letter (named ‘2024 COL Ballot Results’) also confirmed that the business took the decision to ballot jointly for the 2025 cost of living increase and that the future negotiations would be held by each entity separately, therefore confirming the intention of the continuing agreement.

33)       The Employer said it disagreed with GMB’s view that an agreement was never formalised with the new entity and said that it was the Employer’s view that the original recognition agreement (whether in writing or agreed through custom and practice) TUPE’d across with the workforce and its union representatives when the transfer took place. The Employer said that it intended to continue negotiations for 2026 Cost of Living under its custom and practice agreement which would be picked up by the new HR team in January with Unite.

34)       In its oral submissions the Employer explained the organisational structure and that Permali was an entity under Diamorph as is Tenmat. The Employer explained that the agreement with Tenmat and Unite was a longstanding one, however as part of the TUPE process it was unable to identify the written recognition agreement with Tenmat. The Employer said that just because a written agreement could not be located it did not mean that Unite was not recognised. The Employer said that its understanding was that recognition transferred under TUPE as the employees and bargaining unit transferred across. The Employer said that it was a decision at company level that, because pay discussions had already been commenced by Tenmat, they would continue rather than introduce the new HR team from Permali Gloucester and prolong it. The Employer said that those pay discussions with Unite were concluded in July and backdated. They applied to both Tenmat and Diamorph employees.

35)       The Employer accepted it had caused some confusion when corresponding with the GMB but that what it was trying to convey to the GMB was why the GMB was seeking recognition when Diamorph already had a recognition agreement with Unite. The Employer said that it could not accept the request for voluntary recognition from the GMB when it believed that the existing agreement with Unite had passed over under TUPE. The Employer said that Tenmat had handed all the information over and it intended to pick up on the next pay negotiations going forward with Unite. The Employer said it acknowledged that there had been a decline in Unite membership within the bargaining unit, or at least those paying through salary but that it still had a legal obligation to acknowledge the relationship and existing agreement that was there with Unite. In answer to one of the Panel’s questions the Employer said that in terms of consultation under TUPE it had not seen any documentation which specifically referenced that recognition would continue however the documentation from the outgoing HR department had been scarce. The Employer said it did have the document concluding the pay negotiations which stated that pay negotiations for Tenmat and Diamorph would be separate next year however the Employer’s view of this was that these negotiations would be with Unite who would have representatives at both Tenmat and Diamorph Manchester. The Employer added that the TUPE documents alluded to consultations and discussions with the Union.

36)       When questioned by the Panel, the Employer was able to provide more detail on how TUPE came about and said Diamorph is private equity owned and restructured by product lines. The group is Diamorph with legal entities of Permali and Tenmat. Tenmat had two product lines. Tenmat was split and the proportion split off became Diamorph Manchester. The Employer said this was done to try and facilitate the sale of Tenmat as its own business. The TUPE came from Tenmat into Diamorph Manchester. The Employer explained that Diamorph Manchester shared the same building as Tenmat, however the Diamorph leadership team was entirely separate and reported to the Diamorph Group in Gloucester. When asked about the bargaining unit and how the day-to-day work looked the Employer explained that little had changed for those workers who used the same equipment and had the same supervisor and manager they historically had. In terms of the management team there had been a change as they now reported into Gloucester. When asked by the Panel who Tenmat and Diamorph consulted with as part of the TUPE transfer the Employer explained that meetings took place with Unite Union representatives and also employee representatives. The Employer said that there were no specific discussions around transfer of recognition however all the communications issued to workers confirmed that in terms of the day-to-day business things would not change. The Employer confirmed that there was no written document that could be located for a practice that had been in place for many years with Unite at Tenmat and neither had anything been written down or varied since the TUPE transfer. The Employer said its understanding was that Union recognition transferred in the same way that the union workplace representatives transferred. The Employer said that as the representatives moved over to Diamorph the indication was that Tenmat would elect their own separate representatives going forward and that there would be two separate sets of negotiations with Unite for the workers in the bargaining unite one with Tenmat and one with Diamorph. The Employer did accept that the representatives that did transfer were only in place for a short period of time, due changes in role and other unforeseen circumstances and that there were no elected replacements at present in place.

37)       In answer to the Panel’s question on what day-to-day contact the Employer has had with Unite since June 2025, the Employer said there had not really been any but that was because it had not needed to and Unite accepted this. The Employer said that the pay review and any consultations would begin in January and that this would be with Unite and would include the election of new representatives within the factory. The Employer explained that neither it nor Unite had had an opportunity to put anything in place and that they were proceeding on the basis of the long-standing agreement that had been in place with Unite for over 20 years prior to the transfer. The Employer said it would comply with whatever decision the Panel was to make and if that was that there was no agreement with Unite it would proceed on that basis but did not want to do anything at this stage that would mean it would “be in breach of any of their legal obligations,” or act in a way which would contradict the law or the CAC process. The Employer said that it had noticed a decline in the number of deductions being taken from wages for Unite Union membership but at the same time it had not seen these be replaced by GMB membership. It was accepted that this was not surprising because it could only gauge the position by what went through payroll and not memberships paid through any other method. The Employer could not verify whether the contracts of employment referred to collective bargaining and recognition.

9. The comments of Unite

38)       When invited by the Panel to clarify its position Unite said that it had looked for any documentation that might relate to Tenmat but could not find one. Unite said that it was not unusual that a written document dating back over 20 years could not be located. Unite said it was very much involved in the TUPE process. Unite said that workers were balloted on the pay offer and that it was accepted by its members at both Tenmat and Diamorph. Unite said that after TUPE it had representatives at Diamorph and Tenmat and that subsequently changed due to circumstances. Unite said that it was told that as a result of TUPE there may be separate discussions with Tenmat and Diamorph as the bargaining unit had essentially been split in two. Unite said that it had no idea why membership had decreased but that nothing had changed regarding Unite’s contact with the company. Unite said that the day-to-day interactions with the new Employer post TUPE had been less however there had been discussions around how the next set of pay talks would take place given that there were now two product lines and profitability on those lines may impact on an Employer’s ability to pay. Unite said there was a vacancy for a representative at Diamorph but that Unite had stood back once the CAC process had commenced. Unite said that arrangements were being made to go into Tenmat and Diamorph to speak to members to see what was happening but that these were paused to allow the CAC process to conclude and so as to not influence those on site discussions with workers who may or may not be members of Unite. Unite said that it didn’t want to cause more confusion as it worked closely with the GMB in some industries. When asked if Unite had been involved with Diamorph post TUPE transfer Unite said that the officer had attended site on a few occasions but this was more business as usual as opposed to formal negotiations. Unite said that the intention was to let the transfer take place and settle and then go ahead again with talks in 2026. Unite said that if there had been any issues on site like grievances these would be dealt with between the officer and the members but that these were few and far between.

39)       Unite said that the reduction in membership was fairly new and that it had maintained its members in Tenmat but there appeared to be issues in Diamorph, so the intention was to go into the workplace, find out what the issues were and have new workplace representatives elected. Unite said this had not been possible due to the CAC application. Unite said that it had not received anything from either Tenmat or Diamorph seeking to end the recognition arrangements and as far as Unite was aware the only ongoing issue was when the 2026 discussions would start.

10. Union’s concluding comments (GMB)

40)       The Union concluded the submissions by stating that given there was a TUPE transfer and the fact that no one could locate a copy of the recognition agreement it would have been a good opportunity at the point of transfer for the Trade Union and receiving company to sit down and update the agreement. The Union said that this had not taken place and therefore there had to be a dispute as to whether there actually was an agreement. The Union said that it was a massive assumption that just because Unite had members in Tenmat it would be right for that Trade Union to be recognised by the new Employer. The Union said there was no recognition at Diamorph and nor should it be enforced where there were no members of Unite the Union in that bargaining unit at Diamorph. The Union argued that had the agreement been transferred then it would have been the role of that trade union to set up “JCC’s”, set up how often they would meet and organise the representatives and pay data. The Union said in this case after TUPE there were no discussions to arrange any form of meeting. The Union argued that if Unite were recognised you would expect these basics to have been in place.

11. Considerations

41)       The Panel’s task under paragraph 35 is to decide whether there is already in force a collective agreement under which a union(s) is recognised as entitled to conduct collective bargaining on behalf of any of the workers falling within the Union’s proposed bargaining unit. The Panel, in reaching its decision, has taken account of all the evidence to date in this application along with the written and oral submissions at the hearing on 17 December 2025.

42)       The Panel is satisfied with the information before it that the Employer has a collective bargaining agreement with Unite, under which it is recognised as entitled to conduct collective bargaining on behalf of the workers in the GMB’s proposed bargaining unit. The Employer has supplied evidence of exchanges in correspondence between the Employer and Unite since the TUPE transfer that support the fact that the Employer adopted this agreement going forwards. It is not for the Panel to decide which Union would be the better Union to represent the workers in the bargaining unit, or to undertake a membership check to ascertain which Union has the highest membership density. The Panel can only apply the legislation, it is thereafter up to the parties how they move forwards, and what discussions they choose to have outside of this statutory process.

43)       The Panel had regard to regulation 6 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 which states:

Effect of relevant transfer on trade union recognition

6.—(1) This regulation applies where after a relevant transfer the transferred organised grouping of resources or employees maintains an identity distinct from the remainder of the transferee’s undertaking.

(2) Where before such a transfer an independent trade union is recognised to any extent by the transferor in respect of employees of any description who in consequence of the transfer become employees of the transferee, then, after the transfer—

(a)the trade union shall be deemed to have been recognised by the transferee to the same extent in respect of employees of that description so employed; and

(b)any agreement for recognition may be varied or rescinded accordingly.

44)       There was no dispute that Unite was recognised prior to the transfer. There is no dispute that the Diamorph entity in Manchester maintained an identity and it is not contended that the recognition agreement was varied or rescinded. 

45)       The Panel will therefore reject the Union’s application by virtue of paragraph 35 of the Schedule.

46)       The Panel would again remind the parties that its role is not to determine which trade union is best suited to represent the workers in the proposed bargaining unit. The forum for such disagreements lies elsewhere. Rather, its role is to adjudicate.

12. Decision

47)       The Union’s application is inadmissible under the provisions of paragraph 35 of the Schedule. The application is therefore not accepted by the CAC.

Panel

Mr Benjimin Burgher, Panel Chair

Mr Sean Starbuck

Ms Amanda Ashworth

22 December 2025

13. APPENDIX A

Names of those who attended the hearing:

For the Union

Karen Lewis - GMB Regional Officer

For the Employer

Stephanie Topping - Head of HR

Kane Marshall - Operations Director

Barrie Davies - HRBP

For Unite

Andrew Fisher – RCO NW Region

14. APPENDIX B

THE RELEVANT STATUTORY PROVISIONS

In so far as is material, paragraph 35 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 provides:

(1) An application under paragraph 11 or 12 is not admissible if the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit.

(2) But sub-paragraph (1) does not apply to an application under paragraph 11 or 12 if—

(a) the union (or unions) recognised under the collective agreement and the union (or unions) making the application under paragraph 11 or 12 are the same, and

(b) the matters in respect of which the union is (or unions are) entitled to conduct collective bargaining do not include pay, hours or holidays.

(4) In applying sub-paragraph (1) an agreement for recognition (the agreement in question) must be ignored if—

(a) the union does not have (or none of the unions has) a certificate under section 6 that it is independent,

(b) at some time there was an agreement (the old agreement) between the employer and the union under which the union (whether alone or with other unions) was recognised as entitled to conduct collective bargaining on behalf of a group of workers which was the same or substantially the same as the group covered by the agreement in question, and

(c) the old agreement ceased to have effect in the period of three years ending with the date of the agreement in question.

(5) It is for the CAC to decide whether one group of workers is the same or substantially the same as another, but in deciding the CAC may take account of the views of any person it believes has an interest in the matter.

(6) The relevant bargaining unit is—

(a) the proposed bargaining unit, where the application is under paragraph 11(2) or 12(2);

(b) the agreed bargaining unit, where the application is under paragraph 12(4).

The definition of collective agreement and of collective bargaining are to be found in section 178 of the Act:

(1) In this Act “collective agreement” means any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more of the matters specified below; and “collective bargaining” means negotiations relating to or connected with one or more of those matters.

(2) The matters referred to above are:

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c) allocation of work or the duties of employment between workers or groups of workers;

(d) matters of discipline;

(e) a worker’s membership or non-membership of a trade union;

(f) facilities of officials of trade unions;

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.

(3) In this Act, “recognition”, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; and “recognised” and other related expressions shall be construed accordingly.