Decision

Acceptance Decision

Updated 12 February 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1384(2024)

12 February 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

Prospect

and

ECEBS

1. Introduction

1)         Prospect (the Union) submitted an application to the CAC dated 17 January 2024 that it should be recognised for collective bargaining purposes by ECEBS (the Employer) in respect of a bargaining unit comprising “all staff in grades of Manager and below (excluding senior management i.e., heads of departments and above) and in the following departments within, ECEBS. Admin, Technical (including Development and Engineering Operations), Sales Support, Product management, Risk management.” The location of the bargaining unit was given as “The Torus Building, Rankine Avenue, Scottish Enterprise Technology Park, East Kilbride, Glasgow, G75 0QF.” The application was received by the CAC on 17 January 2024 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 24 January 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 Chairman established a Panel to deal with the case. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mr Alistair Paton and Mr Matt Smith. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         The CAC Panel has extended the acceptance period in this case. The initial period expired on 31 January 2024. The acceptance period was extended to 15 February 2024 in order to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision.

2. Issues

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

3. Summary of the Union’s application

5)         In its application to the CAC the Union stated that it had sent a request to the Employer on 29 November 2023, and that the Employer had responded on 13 December 2023 requesting that the Union send to the Employer “numbers of support”, which the Union had provided. The Union went on to say that “the talks between Ecebs and Prospect have not reached an agreement. The employer has constantly attempted to delay talks and has not replied to emails. I have advised the company that if they fail to respond to our letters, I would apply via CAC. This is why this step has been taken.” A copy of the Union’s letter of 29 November 2023 and e mails exchanged dated 13 December 2023, 29 November 2023, 28 November 2023 and 23 November 2023 were attached to the Union’s application.

6)           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, “N/a.” The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7)         The Union stated that the total number of workers employed by the Employer was 29. The Union stated that there were 27 workers in the proposed bargaining unit and that the number of Union members in the proposed bargaining unit was 14. The Union said that it had over 50% membership in the proposed bargaining unit. The Union said that it would be happy to provide evidence of this to the CAC on a confidential basis.

8)         The Union stated that the reason for selecting its proposed bargaining unit was that all roles within the bargaining unit were below senior management grade. The Union went on to say that “given the small nature of the company and the fact that all the roles were specialised the rationale was to have one bargaining unit for all staff.”  In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “NO”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

9)         The Union confirmed that it held a current certificate of independence. The Union said it had copied its application and supporting documents to the Employer on 17 January 2024.

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

10)       In its response to the Union’s application the Employer stated that it had received the Union’s written request under Schedule A1 for recognition on 29 November 2023 and had responded by e mail on 13 December 2023 seeking clarification that the workers supported the application and confirmation of “the percentage of current employees who did so.” The Employer stated that it had received a copy of the Union’s application form from the Union on 17 January 2024. The Employer said that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union. In answer to the question on whether the Employer agreed the proposed bargaining unit the Employer said “No”. The Employer went on to say “The Union’s CAC application form proposes a bargaining unit of 27 people, made up of: All staff in grades of Manager and below (excluding senior management i.e., heads of departments and above) and in the following departments within, ECEBS. • Admin • Technical (including Development and Engineering Operations) • Sales • Support • Product management • Risk management. We disagree with the Union’s suggested numbers for the following reasons: • There have been significant changes to the workforce of late which we do not believe are reflected by their calculations. • There is no Risk Management function within the business.”

11)       The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said “the union suggest that the bargaining unit is composed of 27 people. We disagree, for the reasons set out at point 4 above, with the correct number TBC.”^{[footnote 1]} The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

12)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, “overall staff numbers are wrong.” When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said, “We cannot answer this question until it is agreed which workers constitute the bargaining unit”.

13)       The Employer answered “N/A” 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 and when asked if it had received any other applications in respect of workers in the proposed bargaining unit. The Employer stated that it consented to its contact details being provided to Acas.

5. The Union’s comments on the Employer’s response

14)       In an e mail dated 25 January 2024 the Union said it disagreed with the Employer’s analysis regarding the bargaining unit “and nebulous headcount for staff.” The Union went on to say “to provide context for the Risk Management area within the BU our rationale is that it is linked to a ‘Corporate Risk’ role within the company. Prospect felt that this was different to other roles within the business and therefore decided that there should be an acknowledgement. It is confusing that the company are not able to provide their own numbers for how many people are in the company. However, I agree that there has been change since we submitted the application, and on that basis, I have mapped the bargaining unit within the company and would like to provide the following numbers and role specification for the bargaining unit:

• Admin - General admin and corporate finance functions within the Ecebs business (1)

• Technical - All technical functions, development, and QA engineers, eng ops and dev ops engineers, IT, and systems administration (15)

• Sales - Sales and business development team (1)

• Support - All support operations and app support engineers for Ecebs products (4)

• Product Management - (No one currently in this role)

• Project Management - Project managers, responsible for scheduling and management of projects for delivery (3)

• Risk Management - Responsible for quality processes in the business (ISO compliance etc) (1)

Total member of staff within Bargaining Unit – 25 Current union membership 13.”

6. The membership and support check

15)       To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job roles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party. These arrangements were confirmed in a letter dated 25 January 2024 from the Case Manager to both parties.

16)       The information requested by the CAC was received from the Employer on 30 January 2024 and from the Union on 31 January 2024. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

17)       The list supplied by the Employer indicated that there were 25 workers in the Union’s proposed bargaining unit.

18)       The list of members supplied by the Union contained 14 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 14, a membership level of 56.00%.

19)       A report of the result of the membership and support check was circulated to the Panel and the parties on 31 January 2024 and the parties were invited to comment on the results of that check by noon on 7 February 2024.

7. Summary of the Employer’s comments following the membership and support check

20)       In an e mail dated 7 February 2025 the Employer said that it acknowledged that more than 10% of the workers were members of the union. The Employer went on to say “based on the fact that at least 50% of the workers in the proposed bargaining unit are members of the union we anticipate that the Panel will conclude that limb (b) of the admissibility test will also be met on the basis that a majority of the workers constituting the proposed relevant bargaining unit would be likely to favour recognition of the union. Therefore, we have no further comments to make on admissibility.”

8. Summary of the Union’s comments following the membership and support check

21)       In an e mail dated 5 February 2024 the Union stated that the membership and support check showed that there was an “overwhelming” majority within the bargaining unit that supported Union recognition.

9. Considerations

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

23)       The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

24)       Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit. 

25)       The membership check conducted by the Case Manager (described in paragraphs 15 to 19 above) showed that 56.00% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 16 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

26)       For the reasons set out in paragraph 25 above the Panel has decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

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

28)       For the reasons given in paragraph 25 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 56.00%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union.

29)    On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

10. Decision

30)       For the reasons given in paragraphs 22-29 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair.

Mr Alistair Paton.

Mr Matt Smith.

12 February 2024

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1. The reference to point 4 by the Employer is a direct reference to the comments made by the Employer in Paragraph 10 of this decision. ↩