Case Number: TUR1/1441(2024)

7 February 2025

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

GMB

and

The Montefiore Hospital

1. Introduction

1)         GMB (the Union) submitted an application to the CAC on 21 November 2024 that it should be recognised for collective bargaining by The Montefiore Hospital (the Employer) for a bargaining unit comprising the “Health Care Assistances, Sterile Service Technicians, Operating Department Practitioners and Nursing staff up to and including Senior and Sister level excluding Senior Managers who work at The Montefiore Hospital” based at Montefiore Hospital, 2 Montefiore Road, Hove, East Sussex, BN3 1RD.  The CAC gave both parties notice of receipt of the application on 22 November 2024.  The Employer submitted a response to the CAC dated 6 December 2024 which was copied to the Union.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Ms Naeema Choudry, Panel Chair, and, as Members, Mr Sean McIlveen and Mr Nicholas Childs.  The Case Manager appointed to support the Panel was Kaniza Bibi.

2. Issues

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

4)         The CAC Panel has extended the acceptance period in this case.  The initial period expired on 6 December 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 7 February 2025.

3. Summary of the Union’s application

5)         In its application to the CAC the Union stated that it made its formal request for recognition on 6 November 2024. On the 19 November 2024 the Employer had responded by stating it was not in a position to recognise the Union, as it did not feel that this was something its staff needed or would support.

6)         When asked whether the Union had made any previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered, “No”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties. The Union also confirmed that within its request for voluntary recognition, the offer was made to the employer for Acas engagement.

7)         The Union stated that the total number of workers employed was 110. The Union confirmed that there were 80 workers in the proposed bargaining unit, of whom 52 were members of the Union. The Union gave a breakdown of its members as follows: “Health Care Assistances (10) (Sterile Service (4) Operating Department Practitioners (7) Nursing staff all grades (31)”.

8)         When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated, “GMB membership engagement suggest that there is a willingness to be represented with collective bargaining for clinical as support staff, where we believe we meet the threshold for the identified bargaining unit, due to the growth of 21 new GMB members since discussing recognition”.

9)         The Union stated that the reason for selecting the proposed bargaining unit was at the “Request from members of the GMB, working at The Montefiore Hospital, in Theatres, Wards, Day Care unit, Sterile Services departments, where we believe we have sufficient density of membership to qualify for an application to the CAC”.

10)       The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered, “None”.

11)       Finally, the Union confirmed that it held a current certificate of independence, and it confirmed that it had copied the application and supporting documents to the Employer on 22 November 2024.  

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

12)       In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 6 November.  The Employer responded in writing by a letter dated 19 November 2024 declining the request.

13)       When asked to give the date that the Employer received a copy of the application form (and supporting documents, if any) from the Union. The Employer stated that on “21 November 2024 a copy of an application for recognition to the CAC was received from the GMB (Application 1). That application set out a different proposed bargaining unit from that contained in the request for recognition of 6 November 2024 (namely “Health Care Assistances, Sterile Service technicians, Operating Department Practitioners and Nursing staff up to and including Senior and Sister level”). On 22 November a copy of a further application for recognition to the CAC was received from the GMB (Application 2). That application amended the proposed bargaining unit to state: “Health Care Assistances, Sterile Service technicians, Operating Department Practitioners and Nursing staff up to and including Senior and Sister level, excluding Senior Managers who work at the Montefiore Hospital”. It is not clear from the information received by the Montefiore Hospital whether the GMB formally withdrew Application One. Further it is not clear to the Montefiore Hospital from the application to the CAC whether the GMB seeks recognition in relation: - (i) only to workers of Montefiore House Limited (the appropriate registered Company Number 07414715) (compare the request for recognition of 6 November 2024) falling within the categories of worker within the proposed bargaining unit; or (ii) all workers at the Montefiore Hospital who fall within the categories of workers within the proposed bargaining unit”.^{[footnote 1]}

14)       The Employer when asked if it had agreed the bargaining unit before receiving a copy of the application form from the Union stated “ No”. When asked if it agreed the bargaining unit as set out by the Union in its application the Employer answered “No”. The Employer stated that “The proposed bargaining unit comprises Health Care Assistances, Sterile Service technicians, Operating Department Practitioners and Nursing staff up to and including Senior and Sister level, excluding Senior Managers who work at the Montefiore Hospital. Each of these role descriptions can be properly described as clinical staff. In the circumstances the Montefiore Hospital reserves the right to contend that the proposed bargaining unit raises issues of fragmentation and that in the light of the characteristics of the workers in the proposed bargaining unit and of other employees of the Hospital and the common location of staff that the proposed bargaining unit is not appropriate in all the circumstances. The Montefiore Hospital reserves its right to expand upon and/or augment these objections at the appropriate stage but in conclusion and in summary the Montefiore Hospital contends that the proposed bargaining unit is not compatible with effective management”.

15)       The Employer confirmed that following receipt of the Union’s request, it had not proposed that Acas should be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit. The Employer also stated, “The total number of workers at the Montefiore Hospital is presently 293 Of that total: 145 are employed by Montefiore House Limited (Company Number 07414715) 4 are employed by Montefiore Hospital Limited 138 are employed by Spire Healthcare Limited. There are 6 further workers in relation to whom investigations are continuing as to the precise employing entity”.

16)       Asked whether it agreed with the number of workers in the bargaining unit as defined in the union’s application, the Employer said, “No”. When asked to state the number of workers in the union’s proposed bargaining unit and the reason for any difference, the employer confirmed “The GMB contend that there are 80 workers within the proposed bargaining unit of Health Care Assistances, Sterile Service technicians, Operating Department Practitioners and Nursing staff up to and including Senior and Sister level, excluding Senior Managers who work at The Montefiore Hospital. From the Montefiore Hospital’s employment records the breakdown of workers who fall within the descriptions of workers within the proposed bargaining unit are as follows: The total number of workers within the descriptions of roles within the proposed bargaining unit is 131. Of that total of 131 workers: 72 are employed pursuant to contracts with Montefiore House Limited 4 are employed pursuant to contracts with Montefiore Hospital Limited 51 are employed pursuant to contracts with Spire Healthcare Limited 4 are employed with a contracting entity which is still to be confirmed. The Montefiore Hospital is willing to share on a confidential basis full data including names, job titles and employers of all workers at the Montefiore Hospital with the CAC only in due course including but not limited to the process of membership check by referenced to the relevant proposed barging unit. These totals have been compiled from Montefiore Hospital’s employment records. The reason for the difference in numbers between the Hospitals records and the GMB’s calculation of the number of workers within the proposed bargaining unit is not known to the Montefiore Hospital”.

17)       When asked if the Employer disagreed with the Union’s estimate of membership in the proposed bargaining unit, and to indicate your reasons for disagreeing, the Employer stated, “The GMB contends that it has 52 members in the proposed bargaining unit. The Montefiore Hospital does not have knowledge of the number of staff working at the hospital who are members of the GMB. Further the Montefiore Hospital does not know how many staff employed at the hospital and who are employed by Montefiore House Limited are members of the GMB. Other staff (who may or may not be members of the GMB) are employed by other companies as summarised above. The Montefiore Hospital does not know if the GMB’s purported membership of 52 within the proposed bargaining unit is limited to members employed by Montefiore House Limited or other employing companies (namely Spire Healthcare Limited and Montefiore Hospital Limited). In the circumstances it is submitted that it is appropriate and necessary for the CAC to conduct a membership check to determine if the 10 percent membership test is indeed satisfied in relation to the proposed bargaining unit and the total number of GMB members within the proposed bargaining unit who are employed by Montefiore House Limited or other employers”.

18)       Finally, when asked on whether it had received any other applications under the Schedule for recognition in respect of any of the workers in the proposed bargaining unit the Employer stated, “Not applicable”.

5. The membership and support check

19)       To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the agreed bargaining unit are members of the Union (paragraph 36(1)(a)) and whether a majority of the workers in the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the bargaining unit.  It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of the workers in the bargaining unit which had been proposed by the Union in its application form, and that the Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job titles (where available). It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 12 December 2024 from the Case Manager to both parties.

20)       The information requested was received by the CAC from the Union on 13 December 2024 and from the Employer on 18 December 2024. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

21)       The list supplied by the Employer indicated that there were 130 workers in the agreed bargaining unit. The list of members supplied by the Union contained 59 names. According to the Case Manager’s report the number of members in the agreed bargaining unit was 53, a membership level of 40.77%.

22)       A report of the result of the membership check was circulated to the Panel and the parties on 19 December 2024 and the parties’ comments invited.

6. Summary of the parties’ comments following the membership check

23)       In an email to the Case Manager dated 8 January 2025^{[footnote 2]} the Union stated “I’m not too sure if you had received an update from your email below xxxxx. Just to confirm, xxxxx was contacted on the morning of 20th December and ask where they are currently working. They identified that they do work for Montefiore Hospital and was at work in the hospital at the time of contact that morning. I appreciative that they are not part of the BU, but it does raise questions with the employee data from the employer”.

24)       In a letter sent to the Case Manager dated 8 January 2025 the Employer stated “…………The Union has solely relied upon membership numbers within the proposed bargaining unit as evidence of likely majority support. No evidence at all (e.g. petition evidence of support) has been adduced going to the issue of the likelihood of support for collective bargaining of the 77 workers within the proposed bargaining unit who are not members of the Union. It is submitted that no assumptions should be made as to likely support for recognition among non-members of the union as there is no evidence at all supportive that non-members would support recognition.

7. Additional comments from the parties

25)       The Panel chair directed that the case manager cross copied the parties comments and sought further comments.

26)       The Employer in an email dated 22 January 2025 stated “We write further to the CAC’s correspondence of 20 January 2025.  We have considered the comments made by the Union on the recently conducted check of Union membership in the proposed bargaining unit.  Without further information in relation to the employee(s) in question we can provide no comment or further assistance to the CAC in this regard.  Our position remains that the employer data submitted to the CAC on 18 December 2024 accurately represents the workers in the proposed bargaining unit”.

27)       The Union in an email dated 24 January 2025 stated “With regards to demonstrating that a majority of staff are likely to favour recognition. I am keen to have this independently done, hence the offer, by the GMB, of engagement with ACAS. Any petition, without an agreed process or conducted solely by the union can always be called in to doubt, such as allegations of coercion, or even fraudulent activities. The Montefiore Hospital has cited in their rejection of a voluntary agreement that their ‘very comprehensive survey with our staff at the Montefiore, we feel that the results do not conclusively favour union representation’ the results of which, have still not been shared with their staff. In the same communication it also states, The Montefiore, and will monitor how effective that is through our Divisional Director structure and further staff surveys. Members of the GMB working in the Montefiore have confirmed that no other surveys have been conducted, and staff engagement forums are non-effective, on issues raised by staff representatives. As already mentioned, I would be keen for a staff petition; to be conducted independently, should the panel feel this to a deciding factor of accepting or rejecting this application. I have said to Employer representatives of The Montefiore, at the meetings for voluntary recognition, that the GMB are looking for a positive and meaningful engagement on behalf of our members. We would immediately look to recruit a workplace GMB representative from the proposed bargaining unit to achieve this, should this application be granted”.

8. Considerations

28)       In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 of this decision are satisfied.  The Panel has considered all the evidence submitted by the parties in reaching its decision. 

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

Paragraph 36(1)(a)

30)       In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Union constitute at least 10% of the workers in the agreed bargaining unit.  In this case the membership check conducted by the Case Manager (described in paragraph 21 above) showed that 40.77% of the workers in the bargaining unit were members of the Union.  As stated in paragraph 20 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel has therefore decided that members of the Union constitute at least 10% of the workers in the agreed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

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

32)       In the absence of clear and cogent evidence to the contrary, the Panel is entitled to assume that members of the Union would be likely to favour recognition of the Union to conduct collective bargaining with the Employer on their behalf.  On the evidence before it, particularly the growing membership of the union as evidenced by the increase in the Unions members since recognition discussions commenced (see paragraph 8 above). The Panel has decided that a majority of the workers in the agreed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule and accordingly, this test is also met.

9. Decision

33)       For the reasons given above the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Naeema Choudry, Panel Chair

Mr Sean McIlveen

Mr Nicholas Childs

7 February 2025

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