Decision

Decision

Updated 26 January 2023

Applies to England, Scotland and Wales

Case Number: DI/27/2022

26 January 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SECTION 184 – 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 7 October 2022 pursuant to section 184 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 comply with an order of the Central Arbitration Committee dated 6 July 2022. ^{[footnote 1]}The Employer submitted an initial response to the Union’s Complaint dated 14 October 2022 and a further more detailed response dated 29 November 2022. Both responses were copied to the Union on 1 December 2022.

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 accepted that some of the information that the Panel ordered the Employer to disclose within four weeks of its decision handed down on 6 July 2022 had been provided, but that the information set out in its Complaint dated 7 October 2022 remained outstanding and was required for collective bargaining purposes.

6) The Union stated that in its original application it had sought the median salary for a UK employee on all role codes that existed within the Manchester Bargaining Unit. The Panel determined that the Employer should provide this information. The Union submitted that the Employer had provided some of this information but had unilaterally decided not to provide it in respect of any role code in which five or less employees were attached to it. The Union stated that the Employer had said that the basis for adopting this position was that historically the Union had not asked for information in relation to role codes with less than five employees and also that the data was inherently unreliable. The Union went on to add that this was not in accordance with the terms of the order dated 6 July 2022 and was not a point the Employer had previously sought to make.

7) The Union denied that it had not sought this information historically but contended that in any event this was an irrelevant consideration as was the fact that the data may or may not be unreliable. The Union stated that it had not limited its request to seeking median salaries for role codes where five or more employees were employed in post. It sought median salary figures for all role codes that existed within the Manchester Bargaining Unit. The Union therefore submitted that the Employer had failed to comply with the Panel’s decision.

8) The Panel ordered that information relating to the name of the department or division pay planning manager who determined the current salary of any employee within the Manchester Pay Bargaining Unit should be provided. The Union stated that the Panel had recognised within the decision that the Union should be provided with “the name of the individual who could make the case for recommending each particular employee within the bargaining unit should be put forward for a particular award or recognition.” The Union went on to state that the Employer made reference to a monthly report that the Union received giving the line manager of each individual within the bargaining unit. The Union stated “there are 189-line managers on that list and yet there are only 12 pay planning managers whose names have been provided to the Union. One of the Union representatives is able to identify from the data provided his pay planning manager has responsibility for over 3,000 employees. She is not the individual who would initiate a discussion about a proposal to reward that particular employee and would not even know who this particular employee is.” The Union therefore stated that it had not been provided with the name of the “pay planning manager” who determined the current salary of each of the employees in the Manchester Bargaining Unit.

9) The Union stated that the Panel determined that information relating to 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 should be provided. The Union stated that the Employer had provided some of this information but only in respect of those who had expressly consented to the Union being provided with it. The Union went on to say that the Employer did initially approach the Union to agree a way forward on how this information should be provided and that the Employer’s intention was to approach each employee within the bargaining unit and ask for consent to provide the data in question. The Union stated that it started to prepare a reply to this suggestion pointing out that an approach had already been agreed between the Union and the Employer that employees could be asked prior to disclosure if they wished to object to anonymised data being disclosed and therefore the approach should be to inform employees the information would be provided to the Union unless the Employer received any objection by a specified deadline. The Union submitted that before the Employer had received the Union’s response, the Employer proceeded with asking employees to “opt-in” to having data provided. The Union added that when the Employer subsequently received correspondence from the Union asking the Employer to proceed on the basis of an “opt-out” process the Employer failed to change course from the approach it had adopted. The Union argued that the requirement for employees to positively opt-in was materially different to the Panel’s decision which declared that this information must be provided, unless employees positively opt-out.

10) In conclusion the Union stated that the approach had a material bearing on the information actually provided by the Employer as a significant proportion of the Bargaining Unit had not “opted in” to having this data provided as they had not completed the relevant form and therefore the Union had not been provided with the data for these individuals. The Union stated that it only had equality data for 225 employees in the bargaining unit out of a total of 523 employees. The Union added that this had meant that it was unable to properly use the data to formulate a pay claim. The Union argued that the CAC was very clear in its decision that the parties had agreed the approach by which the data should be provided namely an “opt-out process”.

4. The Employers response to the Complaint

11) In its response the Employer submitted that the Panel should dismiss the Union’s Complaint as it believed it had complied with all aspects of the Panel’s order.

4.1 Median Salary for a UK employee on all role codes that exist within the Manchester Pay Bargaining Unit

12) The Employer stated that it had complied with the request for “median salary” information in accordance with the CAC’s Order and as articulated by the Union in its application of 14 February 2022. The Employer argued that the original complaint brought by the Union referred to “the provision of data which has been consistently provided in previous pay rounds” and also “the scope and content of the data being requested is consistent with what has been requested historically”. The Employer stated it understood the Union’s request to be for data to be provided in exactly the same way as it had been consistently, prior to 2018. The Employer denied it had unilaterally decided not to provide the data for groups of less than five employees or that it had adopted a new position in relation to the provision of this data. The Employer stated it provided the data, in the same way as it had consistently done historically, which it stated was exactly what the Union had requested.

13) The Employer submitted that there were two reasons why it had not historically provided a “median” salary (and the union had never previously requested it) where there was less than five employees within a role code. Firstly, to ensure a reliable IRS median over time, there had to be enough people within the role code to reduce the scale of fluctuation that could be experienced due to attrition, recruitment, and TUPE. Secondly to preserve employee privacy. The Employer explained that if a role code contained a single employee, the median would be their actual salary, and the data would not therefore be anonymised. Similarly, if the sample group was very small, individuals’ privacy would be undermined. Therefore, a minimum number of employees within a role code had always been set at five, to ensure that a median figure still amounted to anonymised personal data. The Employer stated that the Union had never challenged this approach in the past.

14) The Employer concluded by saying that it had provided median salary data to the Union on 2 August 2022, in line with its understanding of the Union’s request for disclosure to the CAC in its application dated 14 February 2022. The Employer stated that in summary, of 523 employees (117 role codes) in scope of the data disclosure, IRS median data was provided to the Union for 489 employees (95 role codes). The remaining 34 employees (22 role codes) sat within role codes where there were less than 5 employees nationally, and where no statistically reliable IRS median could be calculated. The Employer added that on 27 October 2022, Union members of the Manchester Bargaining Unit voted to accept the Employer’s pay offer. It stated that the offer did not use IRS median data in any way (nor did the preceding pay negotiations) and that no pay deal since 2018 had used IRS median data.

4.2 The name of the Department or Division Pay Planning manager who determined the current salary of any employee within the Manchester Pay Bargaining Unit

15) The Employer stated that in the Complaint dated 14 February 2022 the Union had sought information relating to the name of the department or division pay planning manager who determined the current salary of any employee within the Manchester Pay Bargaining Unit. “Pay planning manager” is not a clear term. The pay of employees in the MBU is determined by collective pay bargaining, not by employees’ managers. Collective pay negotiations are conducted between the Company Pay Team and Union representatives. The normal process in the Company (outside the Manchester Bargaining Unit) would be, if an individual’s line manager wished to vary an employee’s pay, it would be the line manager who would raise (initiate) those requests to the budget holder. The request would be governed by HR for consistency before being approved. The Employer stated that the Union know who everyone’s line manager is; they receive an updated list detailing each Manchester Bargaining Unit member’s line manager every calendar month. Additionally, the ‘Head of’ an employee’s business area (the approver/budget holder) is also known by the Union as they have full access to the Company’s directory and can ascertain appropriate ‘Head of Business Area’ information quite simply. During the hearing the Employer explained that there was a single person within the Company’s reward team who had overall responsibility for pay planning (the process), and this name had already been provided to the Union. During the hearing there was wide ranging discussion on what constituted a “pay planning manager”, following the ruling, the Employer produced ‘Head of Business Area’ (approver/budget holder) information for all employees within the Manchester Bargaining Unit. This was subsequently provided to the Union in full on 2 August 2022, within the CAC’s deadline.

16) The Employer stated that the Union did not raise any query about the “pay planning manager” information and did not make the Employer aware that the Union considered the Employer had not complied with the decision, until submitting the complaint of 7 October 2022 to the CAC. The Employer added that it was unclear from the Union’s complaint why the Union believed this had not been provided and what exactly was missing. The Employer concluded by saying that it had therefore provided all the information it possibly could to meet the Union’s request for “pay planning manager” information. The Employer stated it could not therefore understand what information the Union believed had not been provided and welcomed clarification should it be felt that any data has been inadvertently omitted.

4.3 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.

17) The Employer stated that the Union’s application dated 7 October 2022 acknowledged that the Employer had provided information relating to the role code and salary of employees 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 “but only in respect of those who had expressly consented to the Union being provided with it”. In doing so, the Employer stated it had complied with the suggestion made by the Union during the hearing and recorded in the CAC’s Order of 6 July 2022 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 Employer went on to say that the order did not specify exactly how the process of asking employees if they wished to object to data being shared with the Union should be managed. The Employer further added that the panel had noted in its outcome that it recognised the attempts of both parties to resolve this issue and the agreement between both parties during the hearing that employees could be asked prior to disclosure if they wished to object to anonymised data being disclosed to the Union. The Panel did not make recommendations as to the process that should be applied to obtain employees consent or objections.

18) The Employer stated that it was concerned that the Union’s request included personal data including special category data (ethnicity/nationality and disability/non disability). The Employer stated it was mindful of the fact that UK GDPR applied stricter controls to the processing of special category data. The Employer stated that under the UK GDPR, the threshold for consent required a positive affirmation, and controllers could not use an implied or default consent. The Employer stated that it was not appropriate to rely on Article 9(2)(b)(employment law requirement), because it was not clear that all the conditions had been met, and it did not have an “Appropriate Policy Document” in place at the time the personal data was collected, as it had not anticipated this type of data sharing at that time. The Employer stated that as a result it sought consent from all employees in the MBU to share data with the Union. To do this, the Employer stated that it drafted a communication to be issued to members of the Manchester Bargaining Unit, to request their consent (or objection) to the Employer sharing this information with the Union. The draft communication was shared with the Union on 14 July 2022 for the Union’s contribution and feedback prior to issuing, and the Employer stated it also offered for it to be a joint communication from both parties. The Employer added that in the absence of any response from the Union it issued the communication to the Manchester Bargaining Unit asking the employees if they consented or objected to the sharing of sensitive personal data. The Employer attached a copy of the communication and the online questionnaire provided to employees to register their preference to its response. The Employer stated that having failed to respond the Union subsequently approached the Employer on 26 July 2022 asking for the communication to be withdrawn as the Union did not believe the Employer was approaching the matter correctly by not asking employees to simply opt out. The Employer stated it did not accept this as the communication clearly provided employees the opportunity to opt in and opt out on each of the data points being requested by the Union. The Employer stated that it had sent reminder emails to employees in the Manchester Bargaining Unit on four separate occasions to encourage as many responses as possible. The Employer said that it had confirmed to the Union that whilst it would provide its submission no later than 2 August 2022 in line with the CACs decision, it would also keep the response window open for a further 2 weeks for employees to continue to provide their preferences. This was to maximise the amount of data being made available to the Union and to also mitigate some of the delay caused by the lack of engagement from the Union at the outset. In the same communication, the Employer also asked the Union if it would kindly assist in encouraging members to respond, to help in maximising the data that the Employer could provide to the Union, however the Union did not provide the requested assistance. The Employer submitted all available consented data to the Union on 2 August 2022 in line with the CAC deadline. The Employer subsequently provided the Union with updated data disclosures on 9 August 2022 and 18 August 2022. The Employer reiterated that, the CAC’s Order allowed it to ask employees if they wished to object to the sharing of data and done exactly that. The Employer disagreed that it had failed to comply with the CAC’s Order simply because the Union did not agree with the wording of the Employer’s communication to employees.

19) In conclusion the Employer stated that it contacted employees on four separate occasions encouraging them to respond, and the Employer asked the Union if the Union could also assist by encouraging employees to provide their response. The Employer stated it did not consider it appropriate to assume consent by default and provide data unless people “opt out”. The Employer explained that the “ICO states that consent must be given and not assumed, and that it must be the result of a positive action or indication which must not be assumed because of an employee’s inaction.” It stated that in line with this, the Employer formulated a reasonable request to employees to confirm whether they wished to object to the sharing of data. The Employer stated it wrote to the Union to explain the approach and shared the ICO guidance. The Employer submitted that the CAC’s Order allowed the Employer to ask employees if they wished to object to the sharing of data and that the Employer had done exactly that. It stated that it was not correct to assert that the Employer had failed to comply with the CAC’s Order simply because the Union did not agree with the specific wording of the Employer’s communication to employees, having ignored the Employer’s best efforts to seek to agree wording.

20) The Employer summarised by saying that it believed it had provided all the information to the Union in line with the CAC ruling of 6 July 2022. A pay claim was submitted by the Union to the Employer on 16 September 2022. The Employer made a pay offer to the Union on 25 October 2022 following a series of collective pay discussions. This offer was subsequently voted on and accepted by the Union members of the Manchester Bargaining Unit on 27 October 2022 without the need for any further collective discussions.

5. The Union’s response to the submissions made by the Employer

21) The Union was provided with a copy of the Employers responses dated 14 October 2022 and 29 November 2022 on 1 December 2022 and was given the opportunity to respond to all points raised. The Union subsequently submitted a written response dated 9 December 2022. The Union stated that its Complaint centred on three discrete areas in which it submitted that the Employer had not provided information as ordered by the CAC in its decision dated 6 July 2022.

5.1 Median Salary for a UK employee on all role codes that exist within the Manchester Pay Bargaining Unit

22) The Union submitted that this was not a complicated point. The Union sought the national median salary for a UK employee on all role codes that existed within the Manchester Bargaining Unit. The Union stated that this was a deliberate and considered request. The Panel’s decision was unequivocally clear that median salaries should be provided in accordance with the Union’s request and therefore for all role codes that existed within the Manchester Pay Bargaining Unit. The Union stated that what had happened historically, was of no relevance. The Union submitted that it was not for the Employer to try and interpret what the Union had requested and what the Panel had determined when the wording in both the Union’s request and in the Panel’s decision was clear and left no room for doubt. The Union went on to state that although what had occurred in the past should be of no relevance pay disclosures from the Employer for 2013 and 2016 included IRS Median Salary Data for every role in the bargaining unit and with no exclusion for role codes with five or less employees employed within them. The Union went on to say that it accepted that in 2017 the Employer withheld median salary data for roles with five or less employees within them and the Union challenged this position particularly as no alternative figure for pay modelling was provided. The fact that this problem occurred in 2017 informed the basis upon which the request for information was made this time around.

23) The Union sated that part of the rationale for seeking median salary data was that the Union and its members wished to argue the legal point that the provisions in the rescinded Manchester Pay and Benefits Agreement 2017 created a contractual obligation for employees to be paid at least 75% of the median pay. The relevant term of that agreement did not seek to exclude that right for those roles codes in which five or less employees were deployed. It applied to everyone in the Manchester Bargaining Unit no matter how many people were employed in their respective role code. The Union stated it would therefore make no sense for them to have limited the information it was seeking on median salaries. The Union stated that it strongly objected to the Employer now trying to introduce an argument it had not disclosed data for those individuals in a role code with five or less employees in order to protect the personal information of the individuals concerned. The Union stated that it is not able to identify any employee from the provision of their median salary data.

24) In conclusion the Union stated that the Employer had breached the Panel’s order for disclosure by not providing the median salary for all UK employees and that there was nothing in either response lodged by the Employer that showed anything to the contrary.

5.2 The name of the Department or Division Pay Planning manager who determined the current salary of any employee within the Manchester Pay Bargaining Unit

25) The Union submitted that it accepted it was supplied with details of the Line Manager of each named individual within the Manchester Bargaining Unit on a monthly basis in what was referred to as the “Scope List”. However, the Union said that there was no way of cross-referencing that information with the anonymised data the Union sought in its original disclosure application. The Union submitted that to comply with the Panel’s original decision the Employer needed to provide the name of the line manager of each individual through this process as the Employer had done in the past, in order to facilitate analysis of pay and pay rises made by individual line managers. The Union submitted that at present the Employer had provided two lists, one of line managers (by way of the “Scope List” received on a monthly basis) and one of individuals who in many cases were not the individual “who initiated the case for salary change for employees”. The Union submitted that this was equivalent to the Employer providing a list of role codes and a separate list of median salaries, but not said which salary related to which role code rendering the information useless. In conclusion the Union said that what it was asking for was a list of “initiators” (normally Line Managers) to be provided against the role code and salary for each anonymised individual, and that this was in accordance with the decision of the panel.

5.3 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.

26) The Union submitted that the Panel had ordered the information should be provided and expressly set out a way in which it could be done. It submitted that instead the Employer chose to adopt a different approach. The Union stated that it did not deny that the Employer had approached the Union to seek to agree an “opt-in” proposal. In response to this the Union stated that it had made it clear it would respond to that proposal. The Union added that when it made its position clear that it did not agree to the “opt-in” proposal the Employer then refused to change its position and accede to an “opt-out” model as proposed by the CAC, and as favoured by the Union. The Union concluded by saying that as a direct result it had received much less data. In addition, and as an aside the Union stated that it was aware of at least one recently issued contract of employment which contained the following statement “Please also note that the company may share anonymised and sensitive employee information with Unite for the purposes of collective negotiations, such as, gender, year of birth, date of employment, ethnicity, nationality, disability information. Should you not wish for this information to be shared with Unite, please raise an ASKHR call.” The Union submitted that this indicated the Employer explicitly recognised an “opt-out” system process as recommended by the CAC panel as a sensible way to approach the issue.

27) Finally, the Union addressed the pay settlement. It stated that a deal had been reached without prejudice to the fact that the Union had been impeded in the collective bargaining process by not being provided information as ordered by the CAC Panel. However, Union members felt there was no alternative but to accept the pay offer made by the Employer given the current cost of living crisis. It stated that further delay would have meant no pay increase at all and the Employer had refused to implement the real living wage for members in the Manchester Bargaining Unit until negotiations had been concluded which disproportionally impacted the lowest paid. The Union added that the information it had been provided with assisted its stance in the negotiations and in determining how to formulate its pay claim but nevertheless it remained the case that the Union had been impeded by the failure of the Employer to adhere to the Panel’s decision. The Union therefore stated that it considered it very important to continue to pursue the application and hold the Employer to the precise terms of the Panel’s decision.

6. The Relevant Law

28) 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 184 of the Act provides that:

(1) After the expiration of the period specified in a declaration under section 183(5)(c) the trade union may present a further complaint to the Central Arbitration Committee that the employer has failed to disclose or, as the case may be, to confirm in writing to representatives of the union information specified in the declaration.

The complaint must be in writing and in such form as the Committee may require.

(2) On receipt of a further complaint the Committee shall proceed to hear and determine the complaint and shall make a declaration stating whether they find the complaint well-founded, wholly or in part, and stating the reasons for their finding.

(3) On the hearing of a further complaint any person who the Committee consider has a proper interest in that complaint shall be entitled to be heard by the Committee, but a failure to accord a hearing to a person other than the trade union and employer directly concerned shall not affect the validity of any decision of the Committee in those proceedings.

(4) If the Committee find the further complaint wholly or partly well-founded the declaration shall specify the information in respect of which the Committee find that that complaint is well-founded.

7. Considerations

29) 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. The Panel decided that this was a case where the Complaint could be dealt with on the papers and the need for a hearing was dispensed with. This decision was notified to the Parties on 19 January 2023. The Panel records its gratitude for the detailed nature of the submissions which greatly assisted in understanding the Parties respective positions on the matters that are subject to this Complaint.

30) The question for the Panel to address is whether, given the circumstances of this case, and pursuant to section 184 (2), the Union’s complaint is well founded either wholly or in part, in that the Employer has failed to disclose or, as the case may be, to confirm in writing to representatives of the Union information specified in the declaration. In arriving at its decision, the Panel has taken the view that the precise method of data extraction and other considerations around data management may be in contention.

31) Clearly, the purpose of the disclosure provisions under the legislation 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. Although not relevant when determining whether the Panel’s order dated 6 July 2022 has been complied with the Panel has noted that the data provided to the Union as a result of the Panel’s decision, resulted in the reaching of a pay settlement. It is further noted that a pay deal for 2021 and 2022 has now been fully implemented.

32) The Panel has looked at the Complaint and like the Parties has addressed each point separately.

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

The Panel find that the Employer can be said to have acted reasonably and complied with the Panel’s order. The Panel is of the view that the current impasse between the Parties is a dispute on method of extraction of the data and balancing data protection considerations and privacy issues. In addition, there is some dispute around the interpretation of the CAC Order. The Panel is of the view therefore that the issue has moved from the issue of non-disclosure for the purpose of collective bargaining to a dispute around the expectations about the process of data extraction and presentation of information. The Panel has considered whether the Employer has, provided the information sought and which the CAC, in agreement with the Union’s original complaint, declared to be provided in order to enable effective collective bargaining.

In its order the Panel made no reference to ‘all role codes’, simply that the information as provided in the past should be provided. The Employer provided to the Union the information it had provided in previous years that it had not provided before the CAC Order and the Employer believes that this disclosure has complied with the order and is the information sought by the Union. The CAC Order cannot force the Employer to act in a way which may breach other legislation and considerations around information management requirements on data protection and privacy, therefore it is the view of the Panel that the order has been complied with. The approach of the Employer strikes the Panel as being a cautious one taken in line with legal advice rather than an attempt to distract or erect barriers to providing information which would enable effective collective bargaining between the Parties. The CAC cannot, despite it being contested by the Union, involve itself in potentially sensitive data disclosure issues. The information has been provided save for exclusions which are claimed by the Employer as sensitive information. The Panel cannot assume the Employer is wrong in the approach they have taken. This is an information management issue. The Panel would further add that the rationale behind the obtaining of the information is to assist the Union in formulating a pay claim and not to argue a legal point in a different arena on contractual obligations in a rescinded agreement. This particular aspect of the Complaint is therefore not well founded either wholly or in part.

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

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, 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. The Panel finds that the Employer has acted in a reasonable way and complied with the Panel’s earlier order. The Union stated in its most recent response that it wanted a list of initiator (normally line manager) to be provided against the role code and salary for each anonymised individual. The Panel understood that this was not what was being requested in either the original Complaint or at the earlier hearing. The Union asked the name of the department or the identity of the division pay planning manager who determined the current salary of any employee within the Manchester Pay Bargaining Unit. The fact that the format of the information does not meet expectations on the part of the Union does not mean the order has not been complied with. The Panel cannot prescribe how the information is presented or what it should look like, only that the information should be provided. The Panel has previously made clear in its Order that “it was not for the Panel to involve itself with the terminology used by the Parties.” The order did not require the Employer to provide an explanation or any reporting analysis only the information which related to the persons who took decisions on pay. This information has been disclosed. This particular aspect of the complaint is therefore not well founded either wholly or in part.

7.3 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.

The Panel find that the Employer can be said to have acted in a reasonable manner and complied with the Panel’s order. The Panel ordered that this information should be provided as without it the Union would be impeded. Although the Panel made suggestions as to how the Parties could make this work to alleviate the Employer’s concerns, the Panel has no authority to determine how this should take effect between the Parties. This should be by way of agreement between the Parties alone. The Panel’s order stated: “The Union and the Employer agreed at the hearing employees could be asked prior to disclosure if they wished to object….The Panel is of the view that employees provide Employers with the information for their benefit and therefore there would be no automatic breach of confidence by the Employer in disclosure of anonymised data.” The Panel does not determine the application of provisions under GDPR legislation or what this may mean for an Employer’s procedures and how they navigate these statutory requirements. The Panel stated the information should be provided and has not prescribed how that should be done. The fact the Union does not agree with the wording of the Employer’s communication to its employees does not mean the Employer has failed to comply with the order of the CAC. The Employer has therefore complied with the Panel’s order. This particular aspect of the Complaint is therefore not well founded either wholly or in part.

8. Concluding Comments

33) It is the conclusion of the Panel that although the Union raised three discreet areas in its Complaint it is more accurate to say that the Union and Employer are in disagreement as to the interpretation of the order of the CAC and also the process by which the terms of the order were to take effect. Any issues between the Parties that are outstanding are extraneous to the central purpose of the legislation, which is the flow of information to enable collective bargaining. This is now a dispute on method of extraction of data, and balancing data privacy issues rather than a pure issue of non-disclosure for the purpose of collective bargaining. It is of note that the collective bargaining on the relevant pay claim has concluded. The Panel notes that it is a source of continuing tension that the Manchester Pay and Benefits Agreement has been rescinded and that no replacement agreement has been negotiated. In addition, there have been changes to the Employer’s data management systems. This has resulted in a more difficult negotiation context with opposing expectations on the format of disclosure and the Parties are navigating new processes which are not the same as the previous routines established under the MPBA. Legal proceedings may well be contemplated in respect of the legal point made by the Union that the MPBA established an implied contractual term for employees on the applicable benchmark measure for pay. This is not a matter in which the CAC can involve itself. The view of the Panel is that information was sought, disputed, ordered for disclosure, provided and a pay deal was reached. The prescription of the precise methodology of data format and extraction codes and issues of consent for individual data disclosures are matters for realistic negotiation between the Parties and not for the CAC to dictate. The Complaint that the order for disclosure of information has not been complied with is not well founded either wholly or in part and the Panel is not minded to make any further order in this regard.

9. Decision

34) For the reasons given above the Panel does not find the Union’s Complaint well-founded.

Panel

Mrs Sarah Havlin, Panel Chair

Mrs Susan Jordan

Ms Claire Sullivan

26 January 2023

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1. DI/01/22 Unite the Union & Fujitsu Services Limited ↩