Decision

Recognition Decision

Updated 5 December 2018

Case Number: TUR1/1069/2018

04 December 2018

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

GMB

and

Careline Lifestyles (UK) Ltd

1. Introduction

1) GMB (the Union) submitted an application dated 31 August 2018 to the CAC that it should be recognised for collective bargaining purposes by Careline Lifestyles (UK) Ltd (the Employer) in respect of a bargaining unit comprising “all support workers, care assistants, senior care assistants, carers, team leaders, domestics, maintenance workers, kitchen assistants, cooks, nurses and administrators”. “Management, Agency workers and contractors” were excluded from the application. The location of the bargaining unit was given as “Deneside Court, St Joseph’s Way, Jarrow, NE32 4PJ”. The application was received by the CAC on 6 September 2018 and the CAC gave both parties notice of receipt of the application on 7 September 2018. The Employer submitted a response to the CAC on 18 September 2018 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mr David Crowe and Mr Paul Talbot. The Case Manager appointed to support the Panel was Kate Norgate.

3) By a decision dated 4 October 2018 the Panel accepted the Union’s application. In aa decision dated 5 November 2018 the Panel decided that the Union’s proposed bargaining unit was an appropriate bargaining unit, namely “all support workers, care assistants, senior care assistants, carers, team leaders, domestics, maintenance workers, kitchen assistants, cooks, nurses and administrators” excluding “management, agency workers and contractors” at “Deneside Court, St Joseph’s Way, Jarrow, NE32 4PJ”.

4) The next stage of the procedure required the Panel to decide whether a majority of the workers in the bargaining unit are members of the Union. Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled. The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

The Panel decided that in this case it would be appropriate to decide whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the union as a preliminary issue before asking the parties to make submissions on the application of the qualifying conditions.

5) In an e-mail to the Case Manager dated 5 November 2018 the Union confirmed that it believed that it had majority membership within the bargaining unit. The Union said that there was a significant gap between the figure of 58 workers in its proposed bargaining unit it quoted in its application to the CAC dated 31 August 2018 and the Employer’s figure of 102. The Union said that the Employer could include workers such as agency workers or workers who worked in other locations and were outside the bargaining unit or were excluded from the bargaining unit by their job title and that it understood that some workers included by the Employer were on maternity leave and some had left their employment. In a letter to the Employer dated 6 November 2018 the Case Manager asked the Employer to confirm the number of workers in the bargaining unit as of that day. The letter asked the Employer to expressly confirm that this number excluded management, agency workers and contractors and those who had left the bargaining unit. The letter informed the Employer that the Panel considered that workers currently on maternity leave were members of the bargaining unit. The letter asked the Employer to respond by close of business on 8 November 2018. The Employer did not provide the requested information by this deadline. On 12 November 2018 the Case Manager wrote to the Employer requiring this information to be supplied by close of business on 15 November 2018 pursuant to the CAC’s powers under paragraph 170A of the Schedule. The Employer was informed that failure to supply the information by this deadline may result in the Panel drawing an inference against the Employer. In an e-mail to the Case Manager dated 14 November 2018 the Employer said that the numbers “will only have reduced” and asked whether an exact number would be needed given that it was “ever changing”. The Employer said that its Payroll Officer was on leave until the following week and that an exact number could not be provided until then. On 19 November 2018 the Case Manager asked the Employer to provide the exact number of workers in the bargaining unit that day and to confirm that this number excluded management, agency workers and contractors and those who had left the bargaining unit. The Employer replied by e-mail later the same day stating that there was a total of 92 workers in the bargaining unit.

6) The Panel did not, in the event, issue a decision on the question of whether it was satisfied that a majority of the workers constituting the bargaining unit were members of the union due to the issues that arose in relation to the Employer’s duty under paragraph 19D(2)(a) of the Schedule set out below.

2. Union communications with workers after acceptance of an application

7) The Schedule provides that after an application has been accepted by the CAC the Union can ask the CAC to appoint a Suitable Independent Person (SIP) to handle communications from the Union with workers in the bargaining unit. The Union bears the full cost of this process. The relevant paragraphs of the Schedule, so far as material to this decision, are set out below.

19C (1): This paragraph applies if the CAC accepts an application under paragraph 11(2) or 12(2) or (4).

     (2)    The union (or unions) may apply to the CAC for the appointment of a suitable independent person to handle communications during the initial period between the union (or unions) and the relevant workers

     (3) In the case of an application under paragraph 11(2) or 12(2), the relevant workers are –

(a) in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and

(b) in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon.

                 (4) ....

      (5)  The initial period is the period starting with the day on which the CAC informs the parties under sub-paragraph (7_(b) and ending with the first day on which any of the following occurs –

(a) the application under paragraph 11 or 12 is withdrawn;

(b) the CAC gives notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;

(c) the CAC notifes the union (or unions) of a declaration issued under paragraph 19F(5) or 22(2);

(d) the CAC informs the union (or unions) under paragraph 25(9) of the name of the person appointed to conduct a ballot.

       (6) A person is a suitable independent person if –

(a) he satisfies such conditions as may be specified for the purposes of paragraph 25(7)(a) by an order under that provision, or is himself specified for those purposes by such an order, and

(b) there are no grounds for believing either than he will carry out any functions arising from his appointment otherwise than competently or that his independence in relation to those functions might reasonably be called into question.

       (7) On an application under sub-paragraph (2) the CAC must as soon as 
      reasonably practicable –

(a) make such an appointment as is mentioned in that sub-paragraph, and

(b) inform the parties of the name of the person appointed and the date of his appointment.

(8) The person appointed by the CAC is referred to in paragraphs 19D and 19E as “the appointed person”.

19D: (1) An employer who is informed by the CAC under paragraph 19C(7)(b) must comply with the following duties (so far as it is reasonable to expect him to do so).

        (2) The duties are –

(a) to give to the CAC, within the period of 10 working days starting with the day after that on which the employer is informed under paragraph 19C(7)(b), the names and home addresses of the relevant workers;

(b) ….

(c) to give to the CAC, as soon as reasonably practicable, the name and home address of any worker who joins the bargaining unit after the employer has complied with paragraph (a) …;

(d) to inform the CAC, as soon as reasonably practicable, of any worker whose name has been given to the CAC under paragraph (a) …or (c) and who ceases to be a relevant worker….

(3) ….

(4) As soon as reasonably practicable after CAC receives any information under sub-paragraph (2), it must pass it on to the appointed person.

              19E  (1) During the initial period, the appointed person must if asked to do  so by the union (or unions) send to any worker-

(a) whose name and home address have been passed on to him under paragraph 19D(4), and

(b) who is (so far as the appointed person is aware) still a relevant worker, any information supplied by the union (or unions) to the appointed person. ….

19F (1) If the CAC is satisfied that the employer has failed to fulfil a duty mentioned in paragraph 19D(2), and the initial period has not yet ended, the CAC may order the employer –

(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and

(b) to do so within such period as the CAC considers reasonable and specifies in the order;

and in this paragraph a “remedial order” means an order under this sub-paragraph.

(2) If the CAC is satisfied that the employer has failed to comply with a remedial order and the initial period has not yet ended, the CAC must as soon as reasonably practicable notify the employer and the union (or unions) that it is satisfied that the employer has failed to comply.,

(3) A remedial order and a notice under sub-paragraph (2) must draw the recipient’s attention to the effect of sub-paragraphs (4) and (5).

(4) Sub-paragraph (5) applies if –

(a) the CAC is satisfied that the employer has failed to comply with a remedial order,

(b) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit,

(c) in the case of an application under paragraph 11(2) or 12(2) the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid, and

(d) the initial period has not yet ended.

(5) The CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

8) In a letter to the parties dated 4 October 2018 the Case Manager informed them of the Union’s right to request the appointment of a SIP. On 25 October 2018 the Union applied to the CAC for the appointment of a SIP and Mi-Voice was appointed on 6 November 2018. In a letter to the Employer dated 6 November 2018 the Case Manager informed the Employer of the identity and date of appointment of the SIP. ^{[footnote 1]} The letter also informed the Employer that it had a duty to give to the CAC the names and home addresses of the workers in the bargaining unit within 10 working days starting with the day following the notice and that on this basis the information was due no later than 20 November 2018. The letter told the Employer of its ongoing duty to inform the CAC, as soon as reasonably practicable, of any workers who leave the bargaining unit and to give the CAC the names and home addresses of any new joiners. The letter informed the Employer that in the event that these duties were not complied with the Panel could order the Employer to remedy the failure within a set timescale and in the event of a continued failure, declare the Union recognised. The letter referred the Employer to paragraphs 4.17-4.20 of the Guide for the Parties for further details of the Employer’s duties and this penalty. The letter said that the Employer may wish to give consideration to informing the relevant workers that it had provided their names and addresses to the CAC for a statutory purpose and that the Union did not have access to these personal details.

9) On 19 November 2018 the Case Manager sent the Employer’s Director of Operations and Nominated Individual, Mr David Stockdale, a courtesy e-mail to remind him of the deadline of 20 November 2018, together with a copy of her letter of 6 November 2018 for ease of reference. The Case Manager sent Mr Stockdale a further courtesy e-mail on 20 November 2018. In response to the Case Manager’s e-mail of 20 November 2018, a Tuesday, Mr Stockdale sent an e-mail in the following terms:

I’m sorry Kate but this is quite frankly getting ridiculous. You are asking me to notify at least 98 employees at Deneside Court that I have been forced to share their personal details with CAC and then compile the data to send to you all within 30 minutes! I have previously explained that my priority has to be to my role and the individuals we have in our care. I have not had any time to pull this information together or to send letters out to 98 individuals - which presumably I would have to do before providing you with their personal information. CAC are not being reasonable in putting me under this kind of pressure. We are not a big business with limitless resources and I have to do much of this work myself. Please be reasonable in your request on my time and please try to understand that I need reasonable time to do these things.

The Employer requested an extension until “next Friday to complete this and I want time to consult with my legal advisors on this.”

10) The Panel considered the matter, including Mr Stockdale’s e-mail of 20 November 2018. In a letter to the parties dated 21 November 2018 the Case Manager informed the parties that
the Panel was satisfied that the Employer had failed to fulfil the duty to supply the names and addresses of the workers in the bargaining unit to the CAC within the period of 10 working days starting with the day following the notice of 6 November 2018 as required by paragraph 19D(2)(a) of the Schedule. The letter set out the following remedial order:

The CAC orders Careline Lifestyles (UK) Ltd to provide the names and home addresses of workers within the bargaining unit described in paragraph 1 of this letter ^{[footnote 2]} to the CAC no later than 2pm on Monday November 26 2018.

In accordance with paragraph 19F(3) of the Schedule the letter drew the attention of the Employer to the effects of paragraphs 19F(4) and 19F(5) of the Schedule, ie that if the CAC was satisfied that the employer had failed to comply with the remedial order the CAC may issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

11) The Case Manager did not receive the information specified by the deadline specified in the remedial order. On 27 November 2018 the Case Manager wrote to the parties notifying them that the Panel was satisfied that the Employer had failed to comply with the remedial order of 21 November 2018. In accordance with paragraph 19F(3) of the Schedule attention was drawn by this notification to the effects of paragraphs 19F(4) and 19F(5) of the Schedule (see paragraph 10 above). The letter stated that the Case Manager would contact the parties again in due course with the decision of the Panel under paragraphs 19F(4) and (5) of the Schedule. Later on 27 November 2018 the Case Manager received the following e-mail from Mr Stockdale’s personal assistant:

Hi Kate. I have been trying to contact you by phone today to let you know that we are in the middle of a CQC inspection at one of our homes. The [sic] are not planned as they can arrive at any time and they are with us now. They will be with us today and tomorrow so David has to be involved with this. He will contact you as soon as he is able. Many thanks.

3. Considerations

12) The Panel notes that the right of a union to communicate with workers in the bargaining unit once an application has been accepted is of fundamental importance to the operation of the statutory recognition procedure. The significance of the right is demonstrated by the ultimate remedy if an employer fails to comply with the statutory duties whose fulfilment is essential to the union being able to exercise that right, that of a declaration of recognition. The Schedule ensures that this remedy cannot come as a surprise to an employer by requiring the employer’s attention to be drawn to it when a remedial order is issued.

13) Paragraph 19D(2)(a) accords an employer a period of 10 working days starting with the day after it is informed of the identity and date of appointment of the SIP to supply the names and home addresses of workers within the bargaining unit. In this case the Employer was notified on 6 November 2018 of its statutory duty to supply the names and home addresses of workers in the bargaining unit no later than 20 November 2018. The Panel noted that the Employer’s response of 20 November 2018 appeared to be based on the erroneous view that the Employer had received only 30 minutes’ notice of what was required. The Panel nevertheless took into account the Employer’s request for more time when specifying, in the remedial order set out in paragraph 10 above, a deadline of 2pm on 26 November 2018 to supply information which, in the Panel’s experience, would be readily available to an employer.

14) As stated in paragraph 11 above the Case Manager did not receive the requisite information by the deadline specified in the remedial order nor did the Employer have any other form of communication with the Case Manager between receipt of the remedial order and the expiry of that deadline. The Panel was therefore satisfied that the Employer had failed to comply with the remedial order. The Panel notes the communication to the Case Manager from the personal assistant to the Employer’s Nominated Individual following notification that the Panel was satisfied that the Employer had failed to comply with the remedial order (see paragraph 11 above). The Schedule does not envisage a minimum period elapsing between notification to the parties of a failure to comply with a remedial order and a decision under paragraphs 19(4) and (5) nor, in the Panel’s view, does it envisage further input from the parties at this stage. The Panel nevertheless accorded the Employer as a matter of courtesy the opportunity to communicate with the Case Manager in the two working days following the CQC inspection prior to making its decision. The Case Manager did not receive any communication during that period and the Panel does not consider it fair to the Union to delay the process further.

15) The Panel is satisfied that the Employer has failed to comply with a remedial order; an appropriate bargaining unit has been decided; and the initial period as defined in paragraph 19C(5) has not yet ended and that, pursuant to paragraph 19F(4), paragraph 19F(5) of the Schedule applies. In accordance with paragraph 19F(5) the CAC has decided to issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

4. Decision

16) The CAC declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “all support workers, care assistants, senior care assistants, carers, team leaders, domestics, maintenance workers, kitchen assistants, cooks, nurses and administrators” excluding “management, agency workers and contractors” at “Deneside Court, St Joseph’s Way, Jarrow, NE32 4PJ”.

Panel

Professor Gillian Morris, Panel Chair

Mr David Crowe

Mr Paul Talbot

04 December 2018

1. The Union was also informed the same day of the identity and date of appointment of the SIP. ↩

2. “All support workers, care assistants, senior care assistants, carers, team leaders, domestics, maintenance workers, kitchen assistants, cooks, nurses and administrators” excluding “management, agency workers and contractors”. The location of the bargaining unit is “Deneside Court, St Joseph’s Way, Jarrow, NE32 4PJ”. ↩