Decision

Bargaining Unit Decision

Updated 3 June 2025

Applies to England, Scotland and Wales

Case Number: TUR1/1454(2025)

3 June 2025

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

Unite the Union

and

Mitchells & Butlers Retail Limited

1. Introduction

1)         Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 6 March 2025 that it should be recognised for collective bargaining purposes by Mitchells & Butlers Retail Limited (the Employer) for a bargaining unit comprising “Employees based at the Toby Carvery Bolton (Crompton Way), excluding salaried managers, working in the areas of the Front of House, Back of House, Bar, Kitchen, Waiting/Serving, Cleaning or any employee described as a ‘Team Leader’ or ‘Retail Assistant’. Specifically, the General Manager, Assistant Manager and Kitchen Manager are excluded.” The location of the bargaining unit was given as “Toby Carvery Bolton Crompton Way Bolton BL1 8TJ.”

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Mr Stuart Robertson, Panel Chair, and, as Members, Mr John Rawling and Mr Ian Hanson. The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 27 March 2025 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the Panel held a virtual hearing to decide that issue on 15 May 2025. The names of those who attended the hearing are appended to this decision.  The parties provided written submissions and supporting documentation prior to the hearing, and Ms H Ifeka, counsel, and Mr N Caiden, counsel, represented the Union and the Employer respectively at the hearing. They provided oral submissions and answered questions raised by the Panel during the hearing, for which the Panel is grateful.

2. The issue to be decided by the Panel

4)         The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3), a bargaining unit which is appropriate.  Paragraphs 19B(1and (2) state that, in making those decisions, the Panel must take into account

(a)    the need for the unit to be compatible with effective management; and

(b)   the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need.

The matters listed in paragraph 19B(3) are:

(a)   the views of the employer and the union;

(b)   existing national and local bargaining arrangements;

(c) the desirability of avoiding small fragmented bargaining units within an undertaking;

(d)   the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and

(e)   the location of workers.

Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

5)         The Panel must also have regard to paragraph 171 of the Schedule which provides that “In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

6)         The Panel has set out the parties’ views relating to the provisions described in paragraphs 4 and 5 above when summarising their submissions below.

3. Relevant facts

7)         The relevant facts have not been materially in dispute. The Employer, Mitchells & Butlers (Retail) Limited,  is a UK-wide operator of restaurants, pubs and bars. It has about 1,700 sites in the UK, most of which (just under 1,600 sites) it directly manages. It has just over 40,000 hourly-paid workers in the UK in its managed sites, in a variety of front and back of house roles similar or identical to the roles described in the Union’s proposed bargaining unit.

8)         There are 39 workers in the Union’s proposed bargaining unit, which comprises hourly-paid workers at a single site at Toby Carvery, Crompton Way, Bolton.

9)         The Employer operates its sites through a dozen or more national pub and restaurant brands such as (by way of example) All Bar One, Ego, Vintage Inns, Ember Inns, Harvester and O’Neill’s.  Toby Carvery is one of these brands. Toby Carvery has 151 sites, including the location of the proposed bargaining unit at Crompton Way,  Bolton. This is about 9% of the Employer’s 1,600 managed sites across its various brands. Across its sites, Toby Carvery has about 5,400 hourly-paid employees in roles similar or the same as those in the proposed bargaining unit in Bolton (where, as already mentioned, it has 39 employees).  

10)     Looking at the area relatively local to the Crompton Way site, there is another Toby Carvery site in Bolton and within an approximately 45-minute drive, there are five others in the Toby Carvery brand, and 69 other sites across all brands, with 1,865 employees including 138 employees within Toby Carvery sites.

11)       The Employer determines its terms and conditions of employment including rates of pay nationally through its Executive Committee. Terms and conditions excluding pay are standard across the business. There is no recognised trade inion for any of the brands nor collective bargaining nor any regional or local determination of pay and conditions.  Rates of pay broadly reflect the National Minimum Wage or National Living Wage but there is some variation between brands, particularly, the Panel was told, for kitchen staff.

12)       Sometimes a branded site will change from one brand to another, for example a Toby Carvey may become a Browns. Since 2020, 43 businesses have changed brand, a small proportion of the whole. Some employees work at different sites, about 1,850 workers across all brands, and some of these will work at different brands, temporarily or permanently.

4. Submissions for the Union

13)        Ms Ifeka says that the key principles can be found in the decisions in Kwik Fit and Lidl, to which reference is made below.

14)        Ms Ifeka submits that there are two stages to the Panel’s determination.  The first stage under paragraph 19B(2)(a) focusses on whether the proposed bargaining unit is compatible with effective management. The second stage is to consider the five factors within paragraph 19B(2)(b) insofar as they do not conflict with the primary consideration of compatibility with effective management.

15)        Looking at the first stage, Ms Ifeka submits that the Panel must decide whether the proposed bargaining unit is appropriate within paragraph 19B(2)(a). This is set “at the comparatively modest level of appropriateness, rather than of the optimum of best possible outcome.”^{[footnote 1]}This means that if the Panel is persuaded that the proposed bargaining unit is appropriate, it must find in favour of the Union’s request.”^{[footnote 2]} When considering the overriding requirement for the bargaining unit to be compatible with effective management, “compatible” in paragraph 19B(2)(a) means “consistent with” or “able to co-exist with” effective management.^{[footnote 3]} “Effective management relates mainly to the employer’s methods of resolving issues of pay, hours and holidays by collective bargaining, and it might be reasonable to expect the employer to make some changes to its existing management structures to accommodate the bargaining unit.^{[footnote 4]}

16)        Ms Ifeka submits that it the employer objects and proposes an alternative bargaining unit, the Panel is not required, at the first stage of the exercise, to compare the union’s proposal with the employer’s and choose between them. Nor is it required ‘to seek the optimum bargaining unit,’ ‘search for’ or determine ‘the most suitable bargaining unit’.^{[footnote 5]} It is required to consider the employer’s proposals under paragraph 19B(4), but at the first stage, the issue is simply whether the union’s proposal  was appropriate.

17)       Ms Ifeka contends that the proposed bargaining unit is appropriate and compatible with effective management. The workers in the proposed bargaining unit are all hourly-paid and work as front and back of house staff on the same or similar terms and conditions. They share common skills and responsibilities. They work in operational positions: cooking, cleaning, preparing and serving food and drinks, serving customers and handling cash and card payments.  They have different responsibilities to the salaried managers at the site who are responsible for the day to day running of the business, including setting rotas for the hourly paid workers and performing business-facing responsibilities such as reporting to the regional office and recruiting staff.

18)       Ms Ifeka notes that the hourly-paid workers are on the same terms and conditions and paid an hourly rate based on the National Minimum Wage. The hourly rate is not linked to the Employer’s financial performance and their take-home pay depends on the decisions of local management to allocate them sufficient shifts. Holiday entitlement is based on the number of days per week worked on average and calculated on a rolling year basis. There are common absence reporting requirements and terms in respect of Statutory Sick Pay and company sick pay.

19)       Ms Ifeka notes that the Employer has recently addressed a collective grievance by 16 employees at the Crompton Way site relating to pay, conditions and alleged harassment. This has been dealt with by management from another site. This shows that the Employer can address collective issues at a single site. She highlighted differences between hourly-paid and salaried management workers in respect of workplace practices and procedures, disciplinary procedures and uniforms. She concludes that the differences between the hourly-paid employees and salaried management illustrates that the appropriate bargaining unit is the proposed bargaining unit, which comprises the workers in operational positions, identified by uniform and workplace practices as a common group subject to the same or similar terms and conditions and workplace practices.

20)       Moving on to her second stage, Ms Ifeka addresses the factors in paragraph 19B(3). 

21)       As to the parties’ views, she reminds the Panel that the Union’s position is that the proposed bargaining unit is compatible with effective management. There are no national or local bargaining arrangements at Toby Carvery or within the Employer’s wider business. As there are no existing collective bargaining arrangements, there is no risk of fragmentation across the arrangements for collective bargaining. As to the characteristics of the workers, it makes sense to define the constituent members of the bargaining unit by reference to their terms and conditions, their skills and responsibilities, the operational nature of the work they perform and the equipment and apparel with which they are provided and required to use and the workplace practices that these workers are required to follow.

22)       As to any alternative bargaining unit should the Panel decide that the Union’s proposed bargaining unit is not appropriate, Ms Ifeka asserts that it would be very difficult for the Union to organise across an hourly-paid workforce as large as the Employer’s, either nationally or within Toby Carvery. She says that the Employer’s proposition that the appropriate bargaining unit would be the whole of its hourly-paid workforce, this is a naked attempt to defeat recognition by proposing an unrealistic unit.

5. Submissions for the Employer

23)       Mr Caiden broadly agrees with Ms Ifeka as to the applicable law. He observes that although under paragraph 19B(2)(a), compatibility with effective management is the primary concern, the factors in paragraph 19B(3) would feed into that assessment, meaning the paragraphs are not wholly distinct^{[footnote 6]}.  He submits that effective management relates principally to achieving workable methods of resolving pay, hours and holiday issues by collective bargaining. He contends that it is necessary to look at how the business operates in practice based on functionality. It is inconsistent with paragraph 171 to ignore the vast number of employees outside the proposed bargaining unit. Questions arising from there being a small island of recognition in a sea of non-recognition are relevant to the general consideration of compatibility with effective management^{[footnote 7]}.

24)       Mr Caiden submits that the proposed bargaining unit is not appropriate. The primary consideration under paragraph 19B(2)(a) is that the Union’s proposed bargaining unit be compatible with effective management, A bargaining unit consisting solely of hourly-paid workers at one site in Bolton is not compatible with effective management nor would it satisfy paragraph 171 of the Schedule, the objective of which was encouraging and promoting fair and efficient practices and arrangements in the workplace. A small group of 30-odd employees at one site collectively bargaining on matters which otherwise are set centrally including at immediately neighbouring sites could not co-exist with workers on different, non-bargained terms at different sites. This would not promote better working practices.

25)       Mr Caiden notes that the Employer operates a highly centralised workplace. with the 39 workers in the proposed bargaining unit being on precisely the same terms and conditions as the other 40,483 workers on hourly-paid contracts, as well as having nationwide policies. The characteristics of the 40,843 workers are identical to the 39 in the proposed bargaining unit.

26)       Mr Caiden contends that “splintering” of workers into a small bargaining unit when a previously uniform approach has been taken on the ground by management nationwide has frequently led to the CAC rejecting union proposals in the past: see GMB v Carillion TUR1/963/2016 and Unite the Union v DHL Parcel UK Limited TUR1/1217/2021. In these cases, the union’s local bargaining unit proposal was rejected in favour of the Employer’s nationwide proposal. Mr Caiden says that the Union’s proposal does not offer a sensible and workable vehicle for collective bargaining in respect of pay, hours, and holidays so as to be compatible with effective management. The result would be a small island of union recognition amongst a sea of non-recognition, something that is a relevant consideration under the primary requirement to be compatible with effective management. The result would be unworkable and create tension between this small grouping and others who are all on the same terms and conditions and would lead to difficulties in the event the brand changes over or one of the workers moves to one of the other nearby restaurants.

27)       Turning to the views of the Employer and the Union within paragraph 19B(3)(a)), Mr Caiden contends that the Employer has set out cogent reasoning for its position and also what would be the appropriate bargaining unit. The Union has failed to set out any coherent reason why it’s one site only bargaining unit would ‘promote fair and efficient practices and arrangements in the workplace’, or provide workable methods of resolving pay, hours and holidays, when considering what was happening in practice. The  Union has not advanced a reason why the Bolton location was different to the other Bolton location or locations local to it or within the same brand.

28)       Mr Caiden accepts that there are no existing national or local bargaining arrangements and that the desirability of avoiding small, fragmented bargaining units within an undertaking (para 19(3)(c)) is only relevant if there are other bargaining units already present, which is not the case in this undertaking with a national and centralised approach without any prior union recognition.  He submits, however, that the fact there is no other bargaining unit does not mean the Union could artificially create a ‘small island’ that would conflict with effective business management.

29)       Mr Caiden submits that if the Panel determines that the Union’s proposed bargaining unit is not appropriate, it must consider what is the appropriate bargaining unit. He submits that this should be all the Employer’s hourly-paid workforce. This is because looking at what is presently the case on the ground, the Employer operates a nationwide centralised model. The national Executive Committee decides the pay rate for all employees, meaning the most appropriate bargaining unit is for a union to be recognised to deal with all those workers on hourly paid contracts,  to bargain in effect with the Executive Committee. Further, this would reflect that there is nothing localised within the Employer’s current practices at all. It would be appropriate, compatible with, consistent with and could coexist with, effective management and workable methods for national collective bargaining of pay, hours and holidays. Whilst not abandoning the Employer’s secondary proposal that the appropriate bargaining unit would be all hourly-paid employees with in the Toby Carvery brand, which might reflect different rates of pay between brands, Mr Caiden submitted that this would not reflect the Employer’s centralised approach to arriving at pay, terms and conditions across all brands.

6. Considerations

30)       The Panel begins by restating the legislative provisions relevant as to the issue before it.

31)       The Panel is required, by paragraph 19(2) of the Schedule, to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3), a bargaining unit which is appropriate.  Paragraphs 19B(1) and (2) state that, in making those decisions, the Panel must take into account:

(a)    the need for the unit to be compatible with effective management; and

(b)   the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need.

32)       The matters listed in paragraph 19B(3) are:

(a)   the views of the employer and the union;

(b)   existing national and local bargaining arrangements;

(c) the desirability of avoiding small, fragmented bargaining units within an undertaking;

(d)   the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and

(e)   the location of workers.

33)       Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

34)       The Panel must also have regard to paragraph 171 of the Schedule which provides that in exercising functions under this Schedule in any particular case, the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.

35)        The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the bargaining unit proposed by the Union is appropriate. The overriding requirement under paragraph 19B(2) is the need for the unit to be compatible with effective management which relates principally to the matters to be collectively bargained under the statutory regime, namely pay, hours and holidays.

36)       As the parties accept, the requirement that the proposed bargaining unit is appropriate is pitched at the comparatively modest level of appropriateness, rather than of the optimum or best possible outcome. That does not require the Panel to determine whether it is the most appropriate bargaining unit; merely whether it is appropriate. The focus is on the question whether the bargaining unit is compatible with effective management. That involves consideration of whether the bargaining unit proposed is compatible with effective management rather than whether it is compatible with the most effective management, or the precise management structure that the Employer wishes to adopt. Against the background of that overall responsibility the Panel has to consider the matters listed in paragraph 19B(3) of the Schedule, reminding itself that these matters must not conflict with the need for the unit to be compatible with effective management.

37)       As to the matters set out in paragraph 18B(3), the parties agree that sub-paragraphs (b) and (c) do not arise on the facts of this case. In respect of sub-paragraph (a), the Panel has taken account of the views of the Union and the Employer as expressed during the hearing. The Panel will comment on the factors at sub-paragraphs (d) and (e) as appropriate below.

38)       Finally, whether the proposed bargaining unit is compatible with effective management is a matter for the Panel’s judgment in the circumstances of the particular case. The fact that the bargaining unit may be an isolated and small part of the Employer’s business is a consideration to be taken into account but is not necessarily a bar to the unit being deemed appropriate as compatible with effective management.

39)       The Panel finds that the bargaining unit proposed by the Union is appropriate as being compatible with effective management. When considering compatibility with effective management, the focus is on management of issues about pay, hours and holidays by means of collective bargaining, rather than day-to-day line management of staff. The Panel finds that the practical difficulties that the Employer suggests would arise are considerably overstated. There is nothing unusual about collective bargaining on a geographical basis or in this case an individual site. The Employer accepted when asked by the Panel that there would be steps that could be taken to allow for collective bargaining at the Toby Carvery Crompton site, though it may not prove possible to implement any changes arising from the process.

40)       The Panel acknowledges that the Toby Carvery Crompton Way, Bolton bargaining unit would be a small part of the Employer’s business. The Panel appreciates that is a factor that may be taken into account in the overall assessment of compatibility with effective management. However, as in Lidl, the Panel does not consider it of great significance in this case, when one is looking at one coherent unit where collective bargaining can take place.

41)       The Panel appreciates that if the Union is successful in collective bargaining it may obtain benefits for workers based at the site that are not available to workers based at other sites. That is the case for employees in all jobs. It is no more the case for hospitality than it is for those in operations or service delivery. It is inherent where there is recognition in part of a business, but not throughout the business, as commonly is the case.

42)       The Panel notes the Employer’s evidence that the terms and conditions of employment, and policies and procedures relating to employment, of workers at the 1,597 restaurants, pubs and bars (sites) operated by the Employer are dealt with at a central level.^{[footnote 8]} However, the Panel also notes, as the Employer acknowledged, that there are some differences in rates of pay across the brands and various sites. The Panel can appreciate that a bargaining unit consisting of hourly paid workers from all of its 1,597 sites or 151 of its Toby Carvery sites has its attractions. However, the Panel’s role is not to decide whether another bargaining unit would be more appropriate than that proposed by the Union. The Employer gave as its second preference at the hearing a bargaining unit composed of all those hourly paid workers nationwide who work for the Toby Carvery brand, thus impliedly indicating that a bargaining unit confined to Toby Carvery sites could, if necessary, be managed effectively even if it was not its preferred outcome. The Panel notes the Employer’s comments on the mobility of workers between its sites and at times brands and that workers can be paid at a higher rate if appropriate when they work at another site. The Union’s proposed bargaining unit would not inhibit this flexibility.

43)       The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the unit to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. In relation to existing national and local bargaining units, there are none within the Employer’s business. The Union’s proposed bargaining unit would cover 39 workers out of a total of 40,483 employed on hourly paid contracts across all brands nationwide. There is no evidence of any further demands for recognition elsewhere, As far as the characteristics of workers are concerned, all those within the Union’s proposed bargaining unit are hourly paid. They are a discrete group of workers. They are based at a single location. The Panel has had regard to the objectives set out in paragraph 171 of the Schedule in reaching its decision and is satisfied that the proposed bargaining unit achieves those objectives.

7. Decision

44)       The Panel’s decision is therefore that the appropriate bargaining unit is “Employees based at the Toby Carvery Bolton (Crompton Way) site, excluding salaried managers, working in the areas of the Front of House, Back of House, Bar, Kitchen, Waiting/Serving, Cleaning or any employee described as a ‘Team Leader’ or ‘Retail Assistant’. Specifically, the General Manager, Assistant Manager and Kitchen Manager are excluded.”

Panel

Mr Stuart Robertson, Panel Chair

Mr Ian Hanson

Mr John Rawling

3 June 2025

8. Appendix A

Union:

Ms Helena Ifeka - Counsel

Helen Flanagan - regional officer Unite 

Kevin Reynolds - organiser Unite

Jude Percival - Unite rep

Employer:

Mr Nathaniel Caiden, Barrister, Cloisters.

Fiona Bradely – Head of Legal (MAB)

Sally Laughton – Solicitor (Otium Legal Ltd)

Anthony Kay – Solicitor (Otium Legal Ltd)

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1. R (on the application of Kwik-Fit Ltd v Central Arbitration Committee (2002) ICR 1212 ↩

2. R (Cable & Wireless Services UK Ltd) v Central Arbitration Committee (QBD) (2008) EWHC 115 ↩

3. Harvey on Industrial Relations (summarising two 2002 and 2009 CAC decisions) at [1250]. ↩

4. Harvey at [1253.01]. ↩

5. Kwik Fit at [15, 11, 18] ↩

6. See Lidl at [15}. ↩

7. Lidl, at [38]. ↩

8. Of these the Toby Carvery brand has 151 sites. ↩