Decision

Decision

Updated 6 July 2022

Applies to England, Scotland and Wales

Case Number: DI/01/2022

6 July 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SECTION 183 – DISCLOSURE OF INFORMATION

The Parties:

Unite the Union

and

Fujitsu Services Ltd

1. Introduction

1) Unite the Union (the Union) submitted a complaint to the CAC dated 8 February 2022 pursuant to section 183 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act). The complaint related to an alleged failure by Fujitsu Services Ltd (the Employer) to disclose information for the purposes of collective bargaining. The Employer submitted a response to the Union’s complaint dated 21 February 2022 which was copied to the Union.

2) In accordance with section 263 of the Act, the CAC Chair established a Panel to consider the complaint. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Mrs Susan Jordan, and Ms Claire Sullivan. The Case Manager appointed to support the Panel was Joanne Curtis.

2. Background

3) Fujitsu Services Limited (the Employer) is an information technology services company which designs, builds, operates, supports and maintains IT systems primarily for government departments and large businesses. The Company employs around 7,000 employees in the UK and around 500 employees in Manchester. The Employer recognises Unite for collective bargaining within its Manchester operation. The Manchester Bargaining Unit (MBU) consists of employees contractually based at Central Park Manchester, employees based at home and living within 30 miles of Central Park and a small group of home based employees living further away. The MBU comprises approximately 500 employees from over 20 business areas, covering more than 50 different role types.

4) The Employer voluntarily recognises the Union for collective pay bargaining purposes and the relationship is governed by the “Union Recognition Agreement for Fujitsu Services Manchester” (the Recognition Agreement). The agreement includes a provision that “establishes mechanisms for negotiating changes to and conditions of employment and for an annual pay review for Employees within the Bargaining Unit.” The Recognition Agreement was historically supplemented by a Pay and Benefits Agreement agreed each year. The last Pay and Benefits Agreement was agreed in 2017 (the “2017 Manchester Pay and Benefits Agreement”, or “MPABA”). The Employer terminated this agreement in February 2020 on the basis that it was outdated and contained references to data and information which were no longer relevant or available. No new replacement was agreed.

3. The Complaint

5) The complaint was made in respect of “Unite members employed by Fujitsu Services Ltd and covered by its recognition agreement entitled Union Recognition Agreement for Fujitsu Services Manchester.” The Union stated that it had requested information for collective bargaining purposes in correspondence on various dates between 28 April 2021 and 18 January 2022. In its complaint, the Union stated that it had requested, the following information for collective bargaining purposes: “The median salary for a UK employee on all role codes that exist within the Manchester Bargaining Unit. The guideline benefit levels for a UK employee (including car, medical benefit, bonus, notice periods, and overtime) that attach to a role code within the Manchester Bargaining Unit. The pay system for any other grade (not covered by the role codes above) which an employee is in within the Manchester Bargaining Unit. Typical examples would be Apprentice and Graduate, who have defined minimum salaries for their position / progression within the scheme. Performance Rating (commonly known as a PAC code) & Date (if produced) (Previous performance rating and date (if produced)) for every employee within the Manchester Bargaining Unit as assessed in April 2021. The remaining Role code and salary data for any employee within the Manchester Bargaining Unit which has not yet been provided. The date upon which the current salary became effective for any employee within the Manchester Bargaining Unit. The reason for the salary increase (if applicable) that led to the current salary being afforded for any employee within the Manchester Bargaining Unit (e.g. annual review or any other reason). Previous salary effective date if applicable for any employee within the Manchester Bargaining Unit. The name of the department or division pay planning manager who determined the current salary of any employee within the Manchester Bargaining Unit. Any “out of hours entitlement” of any employee within the Manchester Bargaining Unit, along with their out of hours overtime code, out of hours standby code and out of hours shift allowance. Annual leave entitlement. Any applicable roles within the company wants to focus spending, for example to address recruitment or retention difficulties. The role code and salary of every employee within the Manchester Bargaining Unit by applicable age / date of birth. A role code and salary of every employee within the Manchester Bargaining Unit by length of service / date employed by the company. The role code and salary of every employee within the Manchester Bargaining Unit by ethnicity/nationality. The role code and salary of every employee within the Manchester Bargaining Unit by disability/non-disability. List of roles which would be in scope of Recognition if undertaken by a Fujitsu employee that are currently being filled by contractors, temps or agency staff, including for each the job/skills; professional community code, location, start date, pay frequency, hours, contractor pay rate, indicated agency cost per month, performance rating, intention to offer role (y/n), business unit. Figures for vacancies over the last 12 months broken down by role code, for the UK as a whole. Previous Community Role Code for each employee within the Manchester Bargaining Unit before they moved over to their present Role Code. Previous Level/Detail code for each Community Role Code of each employee within the Manchester Bargaining Unit. Date on which each employee within the Manchester Pay Bargaining Unit obtained that previous Community Role Code & Level/Detail code. Contractual Working Hours of each employee within the Manchester Pay Bargaining Unit that obtained that previous Community Role Code & Level/Detail code. A Unique Identifier.”

6) The Union accepted that some of the information had been provided over the period in which the requests had been made, but that the information requested in its application remained outstanding and was required for collective bargaining purposes.

7) Asked to give details of the collective bargaining purpose for which the Union requested the information, the Union stated that it had requested the information to formulate the pay claim for 2021. It had been requested to ensure that pay within the organisation was fair and free from improper bias and that wage increases within the Manchester Bargaining Unit (MBU) bore comparison with those in the wider company. It stated that the information was requested in accordance with the provisions of the recognition agreement and cited Paragraphs 4.3 and 5.4 of the agreement. Paragraph 5.4 of the agreement stated “the company will provide information to assist effective consultation and collective bargaining, at least to the standard set out in the ACAS Code of Practice Disclosure of information to trade unions for collective bargaining purposes.”

8) When asked to give details as to how it had been materially impeded in collective bargaining by not receiving the information the Union stated that the information requested had been regularly and consistently sought previously. It added it could not make a pay claim without the equality data requested. It stated that the information sought was to ensure that a pay claim could be made that addressed any anomalies within the pay system and ensured that it had confidence to operate within a pay system which was objective and fair and without any undue prejudice or bias. It went on to state that a union was inevitably impeded if it did not understand how any recognition and reward package operated.

9) When asked to give details about the way it considered it would be in accordance with good industrial relations practice for the Employer to disclose the information, the Union stated that it made its request with specific reference to the Acas Code of Practice. It stated that the Parties own recognition agreement accepted this as a minimum standard that should be met. It added that the information requested was readily available and that it would work with the Employer to address any concerns relating to the General Data Protection Regulations 2018 (GDPR).

4. Overview of Employers response to the Complaint

10) In its response dated 21 February 2022 the Employer confirmed that the Union was recognised for collective bargaining for the workers described in the Union’s application and it accepted that the Union had requested information for the purposes of collective bargaining. The Employer stated that a number of the items of information requested had already been provided. It stated that where information had not been provided this was in accordance with the Acas Code of Practice namely that the information did not exist or was not in its possession and to compile the information would entail work which was out of proportion to the value of the information for collective bargaining purposes. It added that as well as GDPR concerns the Union had failed to provide reasons as to why they considered the information to be relevant and how its non-disclosure would impede collective bargaining to a material extent. It stated that it had identified to the Union where the data was either no longer available or where further clarification was required before it could be supplied. The Employer did not dispute that data was requested on the dates stated. It added that it had provided all data as set out in the Acas Code of Practice and more.

11) Commenting on the Employer’s response, the Union, in an email dated 4 March 2022, stated that it did not accept the proposition that much of the information sought did not exist. It stated that at the very least it existed in raw data form and that it was content to receive it on that basis. It stated that it did not believe the provision of information breached any data protection obligations however it made clear that it was content to receive data on an anonymised basis, as it has done for many years including 2018 and 2019 post GDPR implementation. The Union stated that it had set out in its application form why it contended the non-disclosure of the information sought impeded its ability to collectively bargain. Whilst it accepted the Employer had served notice on the last pay and benefits agreement, large elements of the agreement were incorporated into individuals’ contracts who were members of the Manchester Bargaining Unit at the time of termination. Those elements included provision of data and entitlement to a minimum salary for their role and an objective definition of promotion and employees had an expectation they would be honoured.

12) On 7 March 2022 the parties were reminded that the usual practice of the CAC, subject to the agreement of the parties, was to hold an informal meeting to clarify the outstanding issues and to establish whether the matter could be resolved by conciliation before the matter was set down for a formal hearing. The parties were asked whether they would be prepared to attend such a meeting with the Panel Chair. The parties agreed to this and an informal meeting took place using zoom on 22 March 2022. At the meeting the parties were able to agree the provision of further items of information and discussions took place thereafter as to how and when this information would be provided.

13) On 7 April 2022 the Union contacted the CAC requesting that a formal hearing be fixed. It stated that although various items of information had now been provided there were outstanding items that it required for collective bargaining purposes and in the absence of any agreement a CAC decision would be required. The Employer believed that from the information provided the Union had access to a comprehensive and detailed set of pay data which would enable productive and meaningful pay bargaining. The Union argued that it still required further information for collective bargaining purposes, and that the information requested had been cross referenced against paragraph 11 of the Acas Code of Practice on disclosure of information to trade unions for collective bargaining purposes.

5. The hearing

14) A formal hearing took place in Manchester on 21 June 2022. The names of those who attended the hearing are appended to this decision. The Union provided a submission prior to the hearing together with supporting documents; the Employer provided a statement of its case together with a supporting evidence bundle. These documents were exchanged, and submitted to the Panel, in advance of the hearing.

15) In the submissions provided the Union conceded that since the informal hearing certain items of information had now been provided. It listed them as follows: “the guideline benefit levels for a UK employee (including car, medical benefit, bonus, notice periods and overtime) that attach to a role code within the Manchester Bargaining Unit. The pay system for any other grade (not covered by the role codes above) which an employee is in within the Manchester Bargaining Unit. Typical examples would be Apprentice and Graduate, who have defined minimum salaries for their position / progression within the scheme. Performance Rating (commonly known as a PAC code) & Date (if produced) (Previous performance rating and date (if produced)) for every employee within the Manchester Bargaining Unit as assessed in April 2021. The remaining Role code and salary data for any employee within the Manchester Bargaining Unit which has not yet been provided. Any “out of hours entitlement” of any employee within the Manchester Bargaining Unit, along with their out of hours overtime code, out of hours standby code and out of hours shift allowance. Annual leave entitlement. Contractual Working Hours of each employee within the Manchester Pay Bargaining Unit that obtained that previous Community Role Code & Level/Detail code.”

6. Summary of the submissions made by the Union

The median salary for a UK employee on all role codes that exist within the Manchester Bargaining Unit

16) The Union said that the information which had been requested was specified explicitly within the Manchester Pay and Benefits Agreement 2017, as information which was required to be given for the purposes of effective collective bargaining. The Union added that the fact the agreement had been terminated did not mean the information should no longer be provided. Furthermore, the terms of the collective agreement remained incorporated into the contracts of employment of the individuals covered by the recognition agreement regardless of the fact the agreement itself had been terminated. It went on to say that whilst the Employer nationally now used a pay system based on Market Reference Salary (MRS). The National median salary for the role (sometimes referred to as IRS / internal reference salary) had been withheld since 2018, despite the fact that it gave a true picture of the implemented pay system / scales within Fujitsu, defined a minimum salary within the bargaining unit and was still used internally by Fujitsu. It stated median salary for a role continued to be a measure of the actual pay for the job rather than any aspirational measure and as such was essential for the purposes of collective bargaining.

17) The Union submitted that the information had been consistently provided in previous years and that it relied heavily on the information when formulating its strategy and proposals in pay negotiations. It added that without the information it was “effectively emasculated in tabling proposals in respect of median salary.” It said that the information was essential for it to be able to collectively bargain and to ensure a fair system of remuneration. The Union contended that the raw data to calculate those figures had been supplied to a least one third party consultant who assisted the Employer in compiling / providing pay and benefits information about the industry as a whole. The Union added that were the Employer to provide the Union with the raw data, the Union would be able to undertake the appropriate calculations. The Union stated that the data was essential to determine what Fujitsu pays for any given role. It provided a foundation on which to collectively bargain and ensured a fair and transparent system free from improper bias. Without the information the Union stated that it could not establish what the salary was for any given role across the organisation / undertaking. The Union stated that it was irrelevant what measures the Employer chose to use, it was information that the Union required to construct, and monitor pay within the Manchester Bargaining Unit in the context of Fujitsu pay nationally and local arrangements. It argued that from 2018 onwards the data was in the Employers possession and/or could easily be generated.

18) At the hearing the Union elaborated stating that the fact that there was no IRS was a distraction. Each role had a role code, the Employer had salary details for each role which had been provided for a decade. The Union requested that the Panel ignore the label as it was the median full time equivalent salary for employees on a role code that it was requesting. It added that this was within the Employers knowledge. The Union argued that under the MPBU employees had a contractual right to 75% of the median full time salary.

19) The Union took issue with the fact that the Employer stated it did not use the information and therefore did not have it. The Union referred to an equal pay audit delivered by the Employer in December 2021 which showed the methodology used by the Employer to do the audit. It stated that as it was an internal audit average pay data was accessible and useable in benchmarking. It added that a pay audit would be of little use if it used the data of other companies.

Previous salary effective date if applicable for any employee within the Manchester Bargaining Unit.

20) The Union stated that it was requesting both the previous salary and the date the previous salary became effective to ensure increases conformed to promotion expectations. In order to properly understand the pay system the Employer operated it needed to understand pay progression when members within the bargaining unit were promoted or salary levels changed as a result of a change in job description. The Union stated that this enabled it to understand what value was given to any particular role. It stated it was aware of 84 pay rises outside the normal pay review period and It needed further information on when these increases were made and why. It added that it was concerned staff had been promoted but may not have received the corresponding pay rise.

The name of the department or division pay planning manager who determined the current salary of any employee within the Manchester Bargaining Unit.

21) The Union stated that without the name and department of the pay planning manager it was impossible to analyse discrepancies to specific departments/managers. The Union stated that the Employer had provided the information as to the department, division and planning manager in every previous bargaining round. It added that without the information of the pay planning manager who had budgetary responsibility for each department it was not possible to know whether the budget was being used or how the managers discretion was being exercised, or in what areas.

22) The Union added that part of the pay deal allowed an element of discretion by managers as to how it should be allocated. It added that the Employer had given it the details of the individual person with overall budgetary responsibility however this did not give them the information they were seeking.

Any applicable roles within the company wants to focus spending, for example to address recruitment or retention difficulties.

23) The Union stated that this had featured in previous bargaining rounds. The Parties would identify roles which required post-holders to possess scarce skills or experience, or where there were issues affecting recruitment /retention. The parties would then negotiate about the rate of pay or benefits for such roles, and /or negotiate the level of “managers’ discretion” to be allocated.

The role code and salary of every employee within the Manchester Bargaining Unit by applicable age / date of birth. Length of service/ date employed by the company. Ethnicity / nationality and disability / non disability.

24) The Union stated that the data provided in 2022 was insufficient for it to carry out analysis of inequality by role. Sufficient data had been provided up to 2019. The Union added that the recognition agreement specifically provided for the Union and the Employer to work together to promote equal opportunities. The Union said it wanted to address any perceived inequalities through its approach to pay bargaining and was impeded from doing so without the data. The Union argued that when provided with the data in the past it had never been misused and that the Employer would normally give employees a period of time in which they could notify the Employer should they not wish this information to be shared. It went on to argue that there was a joint obligation on both sides to promote equal opportunities no less so in relation to pay negotiations. It added that even assuming some individuals would be identified this was not justification for withholding the data in entirety.

List of roles which would be in scope of recognition if undertaken by a Fujitsu employee that are currently being filled by contractors, temps or agency staff, including for each the job/skills; professional community code, location, start date, pay frequency, hours, contractor pay rate, indicated agency cost per month, performance rating, intention to offer role (y/n), business unit

25) The Union stated that this information would enable it to identify which parts of the workforce were in particular demand, and that pay negotiations were specifically concerned with rewarding skills.

Figures for vacancies over the last 12 months broken down by role code, for the UK as a whole

26) The Union submitted that this information had been consistently provided in previous bargaining rounds. The Union was unclear as to why the Employer had altered its position. The Union added that vacant roles are a barometer as to whether a given role is in demand or whether there are issues with retention. It added that it needed the information to formulate a pay claim, as it has done in previous years.

Previous Community Role Code for each employee within the Manchester Bargaining Unit before they moved over to their present Role Code. Previous Level/Detail code for each Community Role Code of each employee within the Manchester Bargaining Unit. Date on which each employee within the Manchester Pay Bargaining Unit obtained that previous Community Role Code & Level/Detail code.

27) The Union submitted that non provision of former role codes that employees had prior to their current role code impeded the Union. It stated that the purpose of the request was to enable it to monitor career development/progression and ensure that where a promotion had taken place (for example a move from one role code to another with a higher median salary) that had been recognised and rewarded. Where it hadn’t it submitted that it would wish to negotiate adjustments in the collective bargaining process as it had done previously.

Unique Identifier

28) The Union submitted that pursuant to the MPABA a unique identifier for each individual which was the same in each set of disclosed information had been provided between 2011-2017. It stated that the data requested for each single employee should have an “identifier” associated with it which was consistent across everything that was provided for that particular individual. Save for that it said that the data should be anonymised. The Union said it wished to have a unique identifier for each individual rather than random ones as without it the pay data disclosed from one year to the next would be meaningless and impossible to track or identify anomalies or issues. The Union went on to say that the data assists in formulating its pay claim by allowing it to track previous trends that had arisen from negotiations. It added that the Employer had agreed to provide consistent unique identifiers in the past for this very reason and it could not understand the Employers change in position. In relation to the concerns regarding anonymity being compromised, the Union argued that a blanket approach was illogical. It stated the fact a small handful might be identifiable was not a justification for withholding data for the remainder of the bargaining unit. It argued that any concerns could be addressed in a proportionate way.

7. Summary of the submissions made by the Employer

The median salary for a UK employee on all role codes that exist within the Manchester Bargaining Unit.

29) The Employer said that it accepted that it was possible to calculate the median salary for all UK Employees by Fujitsu Role Framework (FRF) codes but that it did not currently do so. It made a conscious and considered decision to stop using IRS as a pay benchmark in 2017, and this information had been shared with the Union. It added that the Union were invited to participate in discussions regarding the change but chose not to attend. The Employer stated that it did not believe “median salary” data was necessary to conduct pay bargaining as pay managers, Unite and other Unions had successfully completed pay reviews without the information. The Employer added that the Union had agreed pay deals in 2018, 2019 and 2020 without “median salary” (IRS) data, and that median salaries had not been calculated, shared or used in pay discussions elsewhere in the business, including other collective bargaining units since 2017. The Employer added that pay is reviewed annually and is undertaken by a business unit manager, or by the Union in a collective bargaining context. It stated that a fixed budget was allocated to fund pay rises. The business unit manager (or Union) was allocated a budget and asked to distribute it amongst team members in accordance with the “Company’s Pay Guidelines”, which identified factors to take into consideration when awarding pay rises. It went on to say that the manager (or Union) was provided with the MRS for each employee so they could benchmark or cross check the pay against the market. The same principles applied whether the pay review was handled by the employee’s manager or by the Union.

30) The Employer stated that the Union’s reason for requiring median salary data was unclear, as the Union was aware of what all employees in the MBU were paid for any given role and were also aware of the relevant MRS for that role. The Employer suggested that if the Union’s concern was assessing whether an individual’s pay was appropriate or fair the appropriate bench mark to cross check against was MRS. It added that if the Union’s concern was to understand whether pay in the MBU was comparable to the rest of the company then this could be done in different ways with reference to MRS. The Employer stated it would be happy to discuss possible options with the Union.

31) The Employer stated that it treated information regarding employees pay and benefits as confidential. It said that Employees could request the MRS for their own FRF role code, and this would be shared. Otherwise, MRS data and data relating to benefits for other roles across the organisation were not published or shared. The Employer said it had concerns as to how the Union had historically used data provided to it for the purposes of collective pay bargaining. The Employer did not believe it would be in accordance with good industrial relations practice to require it to calculate and provide “median salary” (IRS) data to the Union which would be commercially sensitive pay data when there was a serious risk that the Union would publish the data to Fujitsu employees (if they were Union members).

32) The Employer did not agree with the Union’s assertion that it was obliged to pay employees a specific amount based upon a percentage of the internal median salary for any given role, in accordance with terms incorporated from a previous collective agreement. It stated that it did not accept this was the effect of the 2017 MPABA. It added that the 2017 MPABA applied before the FRF (Fujitsu Role Framework) was introduced and the “median salaries” referred to in the 2017 MPABA related to Professional Community Codes (PCC role codes) and were not a like comparison for “median salaries” calculated according to FRF codes. It added that the FRF divided roles into families, and identified specific roles within those families. It said that each employee was assigned an FRF code, which identified the area in which they worked, and their seniority. The move to the new FRF framework and to MRS took place in parallel.

33) When asked specifically by the Panel why the Employer felt the Union would not be materially impeded the Employer stated that it had provided the most appropriate information to the Union to allow them to formulate a pay claim. It stated that the mid point MRS and IRS were very different. It reiterated its concern that the Union was requesting the information for purposes outside pay negotiations and that if this was the case then the Union could not be impeded. It added that it was concerned about sharing potential data that could be circulated within the wider organisation and be potentially misleading. The Employer stated that it could not understand how the Union would be impeded when the information had not been requested in previous pay negotiations.

Previous salary effective date if applicable for any employee within the Manchester Bargaining Unit.

34) The Employer stated that they had provided each employees current salary, effective date and the reasons for the most recent pay increases. The Employer confirmed that it did not believe that previous outdated salary information would aid pay discussions. During a meeting on 29 April 2022 the Union stated it needed the information to ensure that increases conformed to promotion expectations set out in the MPBA of at least £1500. The Employer argued that that the MPBA (no longer in force) merely stated that employees who were promoted would receive a pay rise at that time. It added that it was not obliged to implement a standard minimum pay rise on promotions and this had been confirmed to the Union. The Employer went on to say that it was not clear what purpose the information would serve. The Employer concluded by stating that the Union was not materially impeded from conducting collective pay bargaining without the details of each employees previous salary and previous salary effective date. Further the Union had not demonstrated how they would be materially impeded, and that it had provided enough information to meet the Union’s request, and the Acas Code of Practice did not envisage the provision of information with the level of detail that the Union had requested.

The name of the department or division pay planning manager who determined the current salary of any employee within the Manchester Bargaining Unit.

35) The Employer stated that this information no longer existed. It said that pay reviews and pay increases were no longer conducted by pay planning managers working with line managers. All business areas were allocated an annual budget which was managed by a single individual. Every employee had the same pay planning manager allocated to them. It added that the Union had received the information and there was no further information to provide. The Employer stated that it did not understand the reference to analysing discrepancies between departments and pay planning managers as the Union controlled pay negotiations for all of the employees in Manchester.

36) The Employer explained that the Union received a monthly report giving each individuals line manager. It added that the budget was held at business unit level and requests could be made by line managers as to how this should be spent, but that the line managers were the initiators not the decision maker.

Any applicable roles within the company wants to focus spending, for example to address recruitment or retention difficulties.

List of roles which would be in scope of recognition if undertaken by a Fujitsu employee that are currently being filled by contractors, temps or agency staff, including for each the job/skills; professional community code, location, start date, pay frequency, hours, contractor pay rate, indicated agency cost per month, performance rating, intention to offer role (y/n), business unit

37) The Employer stated that pay guidelines were provided to the Union on 26 January 2022 and previously. No skills or roles had been highlighted. In the meeting on 29 April the Union requested more on the types of role for which the Employer was recruiting and “hot skills” so that it could focus on them. In its written submission the Employer argued that this information would not aid pay discussions. After hearing further submissions from the Union at the hearing the Employer conceded that the information requested was relevant to collective bargaining and that the Union could be materially impeded without it. It added that it would need to obtain the information from the companies recruitment strategy and that discussions could take place with the team who had the insight into trends.

The role code and salary of every employee within the Manchester Bargaining Unit by applicable age / date of birth. Length of service/ date employed by the company. Ethnicity / nationality and disability / non disability.

38) The Employer stated that the Union was not materially impeded from conducting collective pay bargaining without the information being provided so specifically. It added that it was conscious of its obligations under GDPR and the Data Protection Act 2018 and that information provided to the Union should be anonymised and not enable individuals to be identified. The Employer went on to say that it was committed to the principle of pay equality and it was happy to work with the Union to address the issue and analyse the data in an appropriate way without compromising an individual’s privacy. The Employer added that on 29 April it agreed to look at providing the Union with an overview of the equality analysis it had undertaken on a national level. The Employer added that age is an identifying factor and when coupled with data already provided (role code, gender, benefits information etc), it became increasingly easier to identify individuals in specific roles.

39) In relation to length of service the Employer stated that the Union was provided with a monthly report stating the date of employment for each person within the Manchester Bargaining Unit by name. It added that adding date of employment to the anonymised data would mean that individuals would be immediately identifiable by a simple cross reference. The Employer said that even just the year of joining would make employees immediately identifiable and therefore should not be shared.

40) In relation to ethnicity / nationality the Employer stated that it relied on employees voluntarily providing the information and that data was therefore limited. It added that the information was provided on the basis that it was only accessed by human resources. It stated that providing this data alongside the data already provided increased the risks that individuals were identified. As a result it said the information should not be shared.

41) In relation to disability/non disability the Employer argued that it relied on employees voluntarily providing the information and therefore data was limited. It added that employees provided the information on the basis that it was only used for certain activities, which did not include collective pay bargaining. It added that as many disabilities were visible it would increase the risk of employees becoming identifiable. The Employer went on to say that it had received direct feedback from employees who did not want their disability status shared with the Union. The Employer therefore considered this information should not be shared.

42) The Employer concluded by saying that it was happy to continue discussions with the Union to establish an alternative way to analyse the equality data that would assist in formulating a pay claim whilst maintaining anonymity.

Figures for vacancies over the last 12 months broken down by role code, for the UK as a whole

43) In its written submission the Employer argued that this information would not aid pay discussions, after hearing further submissions made by the Union at the hearing the Employer conceded that the information requested was relevant to collective bargaining and that it would be happy to provide it.

Previous Community Role Code for each employee within the Manchester Bargaining Unit before they moved over to their present Role Code. Previous Level/Detail code for each Community Role Code of each employee within the Manchester Bargaining Unit. Date on which each employee within the Manchester Pay Bargaining Unit obtained that previous Community Role Code & Level/Detail code.

44) The Employer submitted that it did not believe that outdated role code information would aid pay discussions or that non provision of the data would materially impede the Union whilst validating the size of the total salary spend. The Employer further submitted that there was no progression process for the Union to compare the outdated information against and it would not assist in understanding the size of the current pay budget. The Employer added that it was unclear as to what insight the data would provide in support of collective pay bargaining. The Employer went on to say that the information requested was not available and could not easily be provided. It believed that a lot of the MBU employees were still on the same FRF code from when the system was first introduced, meaning that the role codes held previous to that would be old PCC ones. It submitted that since the introduction of FRF it had transitioned to a new HR system whereby employees had new personnel numbers and the aged data which included PCC codes and history was archived off the system. It added that it would be an extremely onerous task to attempt to produce and as such the compilation would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining.

Unique Identifier

45) The Employer submitted that it did not believe this information would aid pay discussions. It stated that previous disclosures by the Employer had contained random unique identifiers which were not consistent from disclosure to disclosure. It did not accept that the Union was materially impeded from conducting pay negotiations without each individual being identified by a unique identifier. The Employer submitted that it was not clear how a unique identifier would allow the Union to track previous trends or why tracking trends was necessary in order to undertake collective bargaining. The Employer went on to say that providing a unique identifier which may or may not be cross referenced from one disclosure to another compromised its ability to ensure that anonymity was maintained for its employees. It believed that the data should not be supplied as it would compromise employee’s privacy and the Employers obligation to provide only anonymised data to the Union.

8. The Relevant Law

46) The legislative provisions can be found in sections 181 to 184 of the Trade Union and Labour Relations (Consolidation) Act 1992. In conjunction with the Acas Code of Practice.

Section 181 of the Act provides that:

(1) An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section.

In this section and sections 182 to 185 “representative”, in relation to a trade union, means an official or other person authorised by the union to carry on such collective bargaining.

(2) The information to be disclosed is all information relating to the employer’s undertaking (including information relating to use of agency workers in that undertaking) which is in his possession, or that of an associated employer, and is information –

(a) without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining with him, and

(b) which it would be in accordance with good industrial relations practice that he should disclose to them for the purposes of collective bargaining.

(3) A request by trade union representatives for information under this section shall, if the employer so requests, be in writing or be confirmed in writing.

(4) In determining what would be in accordance with good industrial relations practice, regard shall be had to the relevant provisions of any Code of Practice issued by ACAS, but not so as to exclude any other evidence of what that practice is.

(5) Information which an employer is required by virtue of this section to disclose to trade union representatives shall, if they so request, be disclosed or confirmed in writing.

47) Section 182(1) sets out circumstances wherein an employer is not required to disclose information. In effect, it lists the various defences an employer can argue against disclosing information requested by a trade union.

(a)the disclosure of which would be against the interests of national security, or

(b)which he could not disclose without contravening a prohibition imposed by or under an enactment, or

(c) which has been communicated to him in confidence, or which he has otherwise obtained in consequence of the confidence reposed in him by another person: or

(d) which relates specifically to an individual (unless that individual has consented to its being disclosed);

(e) the disclosure of which would cause substantial injury to his undertaking for reasons other than its effect on collective bargaining.

The Panel noted that none of the defences listed in Section 182(1) have been put forward by the Employer in this case. The argument put forward by the Employer for non-disclosure was based on whether the Union could be said to be materially impeded in carrying out collective bargaining under Section 181(2)(a)

48) Section 182(2) then sets out further restrictions on the employer’s duty to disclose. It provides that in performing its duty under section 181 an employer is not required -

(a) to produce, or allow inspection of, any document (other than a document prepared for the purpose of conveying or confirming the information) or to make a copy of or extracts from any document, or

(b) to compile or assemble any information where the compilation or assembly would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining.

The Panel noted that in some cases, the Employer argued that the information sought would require a disproportionate amount of time, effort and resources to provide.

49) Section 183 is the enabling provision that allows a complaint to be made to the CAC in circumstances whereby an employer has either failed to disclose to representatives of the union information which it was required to disclose under section 181 or it failed to confirm such information in writing. This section then goes on to set out how the CAC should dispose of a complaint brought under these provisions.

9. Considerations

50) The Panel’s decision on this complaint has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and amplified at the hearing. The Panel records its gratitude for the forbearance shown by the parties in answering the many questions put during the course of the hearing and which greatly assisted our understanding of their respective positions on the matters that are subject to this complaint. In arriving at each of its decisions below the Panel has taken the view that the precise method of data extraction may be in contention and that the Employer may no longer use previous role codes because it is operating under updated data management systems. In the Panel’s view, the parties must not become caught up in the precise language of systemic terminology. If the nature of the information sought by the Union is understood and the purpose for which it is intended is known, then the Employer should take steps to meet the spirit of the request and make reasonable and proportionate efforts to provide meaningful information.

51) The question for the Panel to address is whether, given the circumstances of this case, the Employer is under the duty set out in section 181 to disclose the information requested by the Union. If the Panel is to find in the Union’s favour and uphold its complaint, it must be satisfied that the conditions set out in section 181 are satisfied.

52) Turning now to the tests under section 181(2), for the Employer to be under a duty to disclose information to the Union, it has to be information without which the Union would be to a material extent impeded in carrying out collective bargaining with the Employer. If the Panel is satisfied that this is the case, it will then move on to consider the second limb under section 181(2) and whether it would be in accordance with good industrial relations practice that the Employer should disclose the information for the purposes of collective bargaining. To assist the Panel with its determination as to what would be in accordance with good industrial relations practice, the Act states that the Panel should have regard to the relevant provisions of any Code of Practice issued by Acas, but not so as to exclude any other evidence of what that practice is.

53) Clearly, the purpose of the disclosure provisions is to encourage the flow of information with the aim that it improves a Union’s knowledge of the relevant undertaking and therefore its ability to take part in the process of collective bargaining with an employer. The information concerned must have some relevance to whichever element of collective bargaining happens to be the subject of the parties’ negotiations. The test in section 181(2)(a) refers to information without which the trade union would be impeded. In other words, does the absence of this information hinder the Union’s efforts to take part in collective bargaining with the Employer.

54) The Panel’s conclusions relating to each of the items of information requested by the Union are as follows:

The median salary for a UK employee on all role codes that exist within the Manchester Bargaining Unit.

55) It is the Panel’s assessment that information relating to internal median salary (IRS data) is an important factor for the construction of the Union’s pay claim. The Employer fundamentally rejects the merits of arguing a pay claim based on internal benchmarking as opposed to market rate benchmarking (MRS data). It is the view of the Panel that the Employer has not established a sustainable counter-argument as to the issue of ‘material impediment’ but instead has strongly stated a difference in approach to the benchmarking of pay.

56) A difference of opinion as to the relevance of the information from the Employer’s perspective, (which is that pay negotiations should be focused on market rate information), is not an argument as to material impediment caused to the Union by the non-disclosure of the information in terms of its ability to carry out its collective bargaining. Instead it is an argument as to the Employer’s view of the merits of any pay claim which may eventually be advanced on such a basis by the Union.

57) In all the circumstances, it is the view of the Panel that it is reasonable for the Union to advance its case that internal median salary is a relevant factor for the carrying on of collective bargaining between the parties, particularly given that The Union seeks to argue the legal point that the provisions in the rescinded Manchester Pay and Benefits Agreement 2017 created a contractual obligation for some employees to be paid at least 75% of median pay. The Panel makes no judgment on this untested legal point. However, the issue somewhat strengthens the essential nature of the information in the context of the Union’s intention to formulate a pay claim with reference to median salary. Therefore, the Panel concludes that the Union is materially impeded from advancing its pay claim without this information.

58) The Employer is of course at liberty to entirely reject the basis upon which any such pay claim is advanced by the Union. That is a matter for negotiations between the parties in due course. At this point, the Panel need only determine that the lack of this information will materially impede the Union in carrying out collective bargaining. The issue of how other Unions have approached the issue of benchmarking pay, in the view of the Panel, is of no consequence. Nor indeed is the Union’s approach to pay benchmarking in earlier years. The Union wishes to advance its current pay claim which it intends to link to internal median salary and it is materially impeded from doing so without the information requested.

59) Further, the Panel has considered the second limb of the test under section 181(2) and is of the view that it would be in accordance with good industrial relations practice that the Employer should disclose the information for the purposes of collective bargaining. The information should be disclosed within 4 weeks of the date of this decision.

Previous salary effective date if applicable for any employee within the Manchester Bargaining Unit.

60) The parties agreed at the Hearing that this information could be provided. The Panel is of the view that under Section 181 (2) it is information without which the Union would be to a material extent impeded in carrying out collective bargaining with the Employer. The Panel is also of the view that it would be in accordance with good industrial relations practice that the Employer should disclose the information for the purposes of collective bargaining. The information should be provided within 4 weeks of the date of this decision.

The name of the department or division pay planning manager who determined the current salary of any employee within the Manchester Bargaining Unit.

61) The parties disagreed on the extent to which this information had been provided and that changes in structure and management reporting lines may be confusing the nature of the information sought. The Panel is of the view that under Section 181 (2) it is information without which the Union would be to a material extent impeded in carrying out collective bargaining with the Employer. By way of observation the Employer conceded at the hearing that this information could be provided in terms of who initiated the case for salary changes for employees. The Union stated that it had still not been provided with individual names of those who initiated such recommendations for matters such as enhanced reward or promotion, only the name of a person who handles the overall budget within the organisation. It is the understanding of the Union that decisions are made on several different levels. This blockage on the exchange of information appears to the Panel as being due to a misunderstanding as to who makes the final decision on approval of an award within the pay budget and who can make the case recommending that certain Employees should be put forward for particular rewards and recognition. For example, an application may be made by a manager at lower level or intermediate level, but this does not mean that such a manager has final responsibility and control for approval or that the applications they put forward on behalf of employees would be accepted. The Employer clearly accepted the reasonableness of the request for such information in the context of collective bargaining and stated that the Union already had access to all line manager details. Again, as per the Panel’s view at paragraph 51, it is not for the Panel to involve itself with the terminology used by the parties and the overall budgetary structure and administration of the Company. It is the view of the Panel that it would be in accordance with good industrial relations practice to disclose this information within 4 weeks of the date of this decision.

Any applicable roles within the company wants to focus spending, for example to address recruitment or retention difficulties.

62) The Panel is of the view that under Section 181 (2) it is information without which the Union would be to a material extent impeded in carrying out collective bargaining with the Employer. The Panel is also of the view that it would be in accordance with good industrial relations practice that the Employer should disclose the information for the purposes of collective bargaining. The Employer conceded that the Union would be impeded without further information in this context and recognised that there could be more information available to the Union after further discussions as to the detail sought. The Employer stated that it would be happy to facilitate such discussions with the Union and work with them. The Panel recognises this as a positive development. The information should be disclosed within 4 weeks of the date of this decision.

The role code and salary of every employee within the Manchester Bargaining Unit by applicable age / date of birth. Length of service/ date employed by the company. Ethnicity / nationality and disability / non disability.

63) The Panel is of the view that under Section 181 (2) it is information without which the Union would be to a material extent impeded in carrying out collective bargaining with the Employer. The Panel is also of the view that it would be in accordance with good industrial relations practice that the Employer should disclose the information for the purposes of collective bargaining. The Employer conceded that the Union would be impeded without further information in this context and recognised that there could be more information available to the Union after further discussions as to the terms of the detail required. The Employer stated that it would be happy to facilitate such discussions with the Union and work with them. However, there were concerns in relation to the disclosure of this information and the ease of identifying individuals due to certain characteristics even with anonymised data. The Employer was concerned about the potential sensitivity for individuals and their right to dignity and confidentiality. The Panel recognises the attempts of both parties to resolve this issue to mutual satisfaction and that this is a positive development. It was also noted that both parties have a mutual interest in their joint discussions and analysis of these equality and diversity issues. The Panel understands the concerns of the Employer in this disclosure of information, but it was noted at the hearing that the Union were in agreement with the Employer as regards the sensitive handling of such information. The Union and the Employer agreed at the hearing that employees could be asked prior to disclosure if they wished to object to anonymised data being disclosed as a method of giving assurance to the Employer. The Panel is of the view that employees provide employers with the information about such issues so that it will be taken into account for their benefit and therefore, in the judgement of the Panel, there would not be an automatic breach of confidence by the Employer in the disclosure of anonymised data for the purpose of joint analysis of workplace equality and progress in matters of organisational diversity. This information should be provided within 4 weeks of the date of this decision.

List of roles which would be in scope of recognition if undertaken by a Fujitsu employee that are currently being filled by contractors, temps or agency staff, including for each the job/skills; professional community code, location, start date, pay frequency, hours, contractor pay rate, indicated agency cost per month, performance rating, intention to offer role (y/n), business unit

Figures for vacancies over the last 12 months broken down by role code, for the UK as a whole

Previous Community Role Code for each employee within the Manchester Bargaining Unit before they moved over to their present Role Code. Previous Level/Detail code for each Community Role Code of each employee within the Manchester Bargaining Unit. Date on which each employee within the Manchester Pay Bargaining Unit obtained that previous Community Role Code & Level/Detail code.

Unique Identifier

64) The Panel is of the view that under Section 181 (2) the items above all consist of information without which the Union would be to a material extent impeded in carrying out collective bargaining with the Employer. The Panel is also of the view that it would be in accordance with good industrial relations practice that the Employer should disclose the information for the purposes of collective bargaining. The Panel is mindful that in its submissions the Employer was seeking to apply Section 182(2) which sets out further restrictions on the employer’s duty to disclose. It provides that in performing its duty under section 181 an employer is not required to compile or assemble any information where the compilation or assembly would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining. A sensible and realistic estimate of work or expenditure is one which is based on the specific circumstances of the case. In other words, it should not be based on general assumptions, for example, that all records would need to be searched in order to obtain the requested information when it is likely that staff in the relevant department would know where the requested information is stored. In this case, the Panel find that the Employer did not provide it with sufficient information to substantiate that the restriction on an Employer’s duty in accordance with Section 182(2) had been met. This information should therefore be disclosed within 4 weeks of the date of this decision.

10. Decision

65) For the reasons given above. It is the Panel’s assessment that the non-disclosure of the information does impede the Union to a material extent in carrying out collective bargaining. The Employer should disclose the information to the Union within four weeks of this declaration.

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Ms Claire Sullivan

6 July 2022

11. APPENDIX

Names of those who attended the hearing

On behalf of the Trade Union:

Stuart Brittenden – Counsel - Old Square Chambers

Neil Todd – Solicitor- Thompsons Solicitors

Gary Fairclough – Regional Officer – Unite

Kevin Davies – Workplace Representative

Lynne Hodge – Workplace Representative

Mark Norman – Workplace Representative

On behalf of the Employer

Kay Fereday - HR Consultant

Ellie Neville - Head of People Operations