Decision

Validity Decision

Updated 25 June 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1441(2024)

25 June 2025

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER THE APPLICATION IS VALID FOLLOWING

AGREEMENT ON THE BARGAINING UNIT

The Parties:

GMB

and

The Montefiore Hospital

1. Background

1)         GMB (the Union) submitted an application to the CAC on 21 November 2024 that it should be recognised for collective bargaining by The Montefiore Hospital (the Employer) for a bargaining unit comprising the “Health Care Assistances, Sterile Service Technicians, Operating Department Practitioners and Nursing staff up to and including Senior and Sister level excluding Senior Managers who work at The Montefiore Hospital” based at Montefiore Hospital, 2 Montefiore Road, Hove, East Sussex, BN3 1RD.  The CAC gave both parties notice of receipt of the application on 22 November 2024.  The Employer submitted a response to the CAC dated 6 December 2024 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, Mr Sean McIlveen and Mr Nicholas Childs.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         By a decision dated 7 February 2025 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. Following the parties’ failure to reach agreement, a hearing was held on 30 April 2025 for the Panel to decide on the appropriate bargaining unit. Following that hearing, by a decision dated 20 May 2025, the Panel determined that the bargaining unit proposed by the Union was not appropriate and decided that the appropriate the bargaining unit was “All clinical staff based at The Montefiore Hospital below senior management level”.

2. Issues

4)         As the bargaining unit determined by the Panel differed from that proposed by the Union, Paragraph 20 of Schedule A1 to the Act (the Schedule) requires the Panel to decide whether the Union’s application is valid within the terms of paragraphs 43 to 50 the Schedule.  The matters that the Panel must consider are: -

• is there an existing recognition agreement covering any of the workers within the new bargaining unit? (paragraph 44)

• is there 10% union membership within the new bargaining unit? (paragraph 45(a))

• are the majority of the workers in the new bargaining unit likely to favour recognition?   (paragraph 45(b))

• is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? (paragraph 46)

• has there been a previous application in respect of the new bargaining unit? (paragraphs 47 to 49)

5)         In a letter dated 20 May 2025 the Panel invited the parties to make submissions on these matters for consideration.

3. The Union’s response re-application of the validity tests to the new bargaining unit

6)         In an email dated 23 May 2025 the Union answered the questions as follows:

• Is there an existing recognition agreement covering any of the workers within the new bargaining unit? No.  As per the Bargaining Unit Decision TUR11441(2024) GMB & The Montefiore Hospital, paragraph 31: ‘at present, the Employer did not recognise any other union for collective bargaining purposes’. Paragraph 46 of this decision document states that ‘there are no existing national or local bargaining arrangements’.

• Is there 10% union membership within the new bargaining unit? Yes.  In practice we are willing to establish this by providing a membership list for the new bargaining unit.

• Are the majority of the workers in the new bargaining unit likely to favour recognition? Yes.  We have a significant number of GMB members in the new bargaining unit and they are very much in support of union recognition.

• Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? Not to the best of our understanding, no.

• Has there been a previous application in respect of the new bargaining unit? Not that we are aware of, no.

4. The Employer’s response re-application of the validity tests to the new bargaining unit

7)         In a letter dated 23 May 2025 the Employer answered the questions as follows:

• Is there an existing recognition agreement covering any of the workers within the new bargaining unit? No

• Is there 10% union membership within the new bargaining unit? Yes (assuming that the 53 staff identified in the original bargaining unit remain GMB members)

• Are the majority of the workers in the new bargaining unit likely to favour recognition? No. For the general reasons set out in the Montefiore Hospital’s January submissions and in particular that if union membership has remained the same (and it is to be observed that the selection of the original Bargaining Unit was based at least in part on union density – see the summary of the union’s submissions at para 9 of the decision “The density of union membership did play a part in the Union’s formulation of the propose bargaining unit …” which might suggest further membership is not extensive) that the union percentage is only circa 30% of the new Bargaining Unit (29.78%).

• Is there a competing application, from another union, where their proposed bargaining unit covers any workers in the new bargaining unit? No

• Has there been a previous application in respect of the new bargaining unit? No

5. The membership and support check

8)         To assist in the determination of two of the validity tests specified in the Schedule, namely, whether 10% of the workers in the determined bargaining unit are members of the union (paragraph 45(a)) and whether a majority of the workers in the determined bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 45(b)), the Panel proposed an independent check of the level of union membership and support for recognition within the determined bargaining unit. The Union provided a list its members in the bargaining unit which was received by the CAC on 2 June 2025.  The Employer also provided a list of workers in the bargaining unit on 2 June 2025. 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 from the Case Manager to both parties dated 28 May 2025.  The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

9)         The list supplied by the Employer indicated that there were 172 workers in the determined bargaining unit. The list of members supplied by the Union contained 58 names. According to the Case Manager’s report, the number of union members in the determined bargaining unit was 54, a membership level of 31.40%.

10)       A report of the result of the membership check was circulated to the Panel and the parties on 2 June 2025 and the parties were invited to comment on the result.

6. Employers’ comments on the membership check

11)       In an email dated 4 June 2025 the Employer stated that the proportion of Union members in the bargaining unit was 31.40% and it accepted that, in the light of the analysis in the further report, that the Union membership within the revised bargaining unit exceeded the 10 percent threshold for admissibility. Furthermore, the Employer stated that the Union has not demonstrated on the balance of probabilities that a majority of workers in the bargaining unit were likely to favour recognition. The Employer also stated that the likelihood of majority support, the percentage of 31.40% of union members within the bargaining unit of 172 workers fell far short of the degree of evidential support for recognition which has previously been found by the CAC in a number of cases to be sufficient evidence for the purposes of paragraph 36 (and similarly paragraph 45) of likely majority support, namely evidence which shows the likelihood, on the balance of probabilities, of the majority of workers within the bargaining unit favoring recognition.

12)       The Employer indicated that there was no evidence of support for recognition amongst non-union members within the bargaining unit and that the Union had solely relied upon membership numbers within the bargaining unit as evidence of likely majority support. And that no evidence at all (e.g. petition evidence of support) has been adduced going to the issue of the likelihood of support for collective bargaining.

13)       The Employer submitted that no assumptions should be made as to likely support for recognition among non-members of the union as there was no evidence at all which demonstrated any support from this group of workers.  The Employer stated that the original membership check, showed that there were 59 members whereas the further check showed that membership now stood at 58 (down from 59).  Thus, in the period 13 December 2024 to 2 June 2025 rather than evidencing a continuing increase in union membership, there had been a slight decrease.

7. Unions comments on the membership check

14)       The Union noted that there were four members not appearing on the Employer’s list and it had been in communication with the CAC Case Manager about this anomaly. The Union wanted to state that the data it provided on 2 June 2025 with regard to its members was to the best of its knowledge accurate.

15)       The Union confirmed there was no existing national or local bargaining arrangements for the new determined bargaining unit at present, and that the Employer did not recognise any other union for collective bargaining purposes.. The Union stated that the membership check of 2 June 2025 confirmed the proportion of union members in the new bargaining unit was 31.40%. The Union further stated that the majority of the workers in the new bargaining unit were likely to favour recognition with a 31.40% union density. It already had a significant number of union members in the new bargaining unit who were very much in support of union recognition.

16)       The Union confirmed that 31.40% was a high level of density considering all of its organising had been done outside of the workplace and it did not have any formal access to the workforce. The Union said it was in the process of recruiting new members and there was a considerable interest that had been expressed in joining the union. The Union asserted that it was highly likely that the majority within the determined bargaining unit would be likely to favour the Union and this had been expressed enthusiastically by those within the bargaining unit.

17)       The Union wanted to draw the Panel’s attention to case reference MSF & APW New Forest Limited (2001) where the proportion of union members in the bargaining unit was, as in this application, in excess of the 10% level required at 32%. In this case the Panel decided that it was a ‘reasonable prospect’ that those in the bargaining unit would be in support of union recognition and the application could proceed by route of a ballot.

18)       The Union wanted to re-iterate as communicated in its oral submissions of 30 April 2025, that a number of those in the new determined bargaining unit of clinical staff were already in specific trade unions connected to their roles and membership density from these professions was incredibly high: The Union confirmed that the Society of Radiographers represented 90% of all diagnostic and therapeutic radiographers in the UK. And also, that the British Medical Association represented over 80% of all resident doctors. The Union continued by stating, that the Pharmacists Defence Association represented over 67% of all registered pharmacists and the Chartered Society of Physiotherapists over 80% of registered physiotherapists.

19)       The Union said traditionally these clinicians had high union density and support recognition and bargaining rights in their workplaces. The Union wanted to put to the Panel that in order for this to be fairly and accurately assessed, a ballot of the determined bargaining unit should be carried out.  The Union mentioned a selection of CAC decisions which affirmed this position in earlier decisions with similar fact patterns to this application such as TUR1/1386(2024) Community and Euro Car Parts Issue, TUR1/674(2009) Unite & Britannia Parking and TUR1/72(2001) GPMU & Derwent Information Ltd.

20)       The Union confirmed there was no competing application, from another union and it was not aware of any previous applications in respect of the new bargaining unit.

21)       Finally, the Union brought to the Panel’s attention that four Union members that constituted part of the new bargaining unit were notified by Employer on 22 May 2025 that their roles had been placed at risk of redundancy and a period of consultation had been started by the Employer.  The four union members in question were permanent members of staff in the Sterile Services Team and the Union had been advised that the Employer was seeking to replace these members with bank staff.

8. Considerations

22)       Paragraph 20 of the Schedule applies where (1) the CAC accepts an application under paragraphs 11(2) or 12(2),  (2) the CAC has decided an appropriate bargaining unit, and (3) the bargaining unit differs from the proposed bargaining unit. Paragraph 20(2) provides that in these circumstances, which apply in the present case, the CAC must decide whether the application is invalid within the terms of paragraphs 43 to 50 of the Schedule. By paragraph 20(3), the CAC must consider which has been provided by the Union and the Employer. Under paragraph 20(4), if the CAC decides that the application is invalid, it must give notice of its decision to the parties, it must not proceed with the application, and no further steps are to be taken under this Part of the Schedule.

23)       Paragraph 43 of the Schedule provides that paragraphs 44 to 50 apply if the CAC has to decide under paragraph 20 whether an application is valid. The Panel is satisfied that the application is valid in terms of the tests laid down in paragraphs 44, 46 and 47 of the Schedule, namely that there is no existing recognition agreement in force, that there is no competing application and that there has been no previous CAC application in respect of the new bargaining unit.  Paragraphs 48 and 49 do not apply in this case.

24)       The Panel must also consider, in accordance with paragraphs 45(a) and (b) of the Schedule, whether (a) 10% of the workers constituting the new bargaining unit are members of the Union and (b) that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.  In this regard, the Panel has considered the evidence and submissions of the parties.

25)       The Panel finds that the test in paragraph 45(a) is satisfied. The Panel accepts the Union’s evidence that it has 54 members within the new bargaining unit. The Panel also accepts the Employer’s evidence that there are 172 workers within the unit. This means that 31.40% of the new bargaining unit are members of the Union, meeting the 10% threshold test.

26)       The Panel, however, is not satisfied that the test in paragraph 45(b), namely that a majority of the workers constituting the new bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit, is satisfied in this case.  The Union has not produced any evidence of support for recognition beyond its membership figure. Whilst it has suggested that workers within the bargaining unit are members of other unions, it has not produced any evidence in support of this contention; in any event, membership of another union would not of itself provide support for recognition of this particular union.  Since the CAC carried out its membership check, the level of membership at just over 31.40% falls substantially below a majority and well below a level from which the Panel would be prepared to conclude that a majority of the workforce in the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

9. Decision

27)       For the reasons given above, the Panel’s decision is that the application is invalid for the purposes of paragraph 20 of the Schedule, and in accordance with paragraph 20(4), the CAC will not proceed any further with the application or take any further action within this Part of the Schedule.

Panel

Ms Naeema Choudry, Panel Chair

Mr Sean McIlveen

Mr Nicholas Childs

25 June 2025