Decision

Acceptance Decision

Updated 15 March 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1284/2022

24 August 2022

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 Noble Collection UK Ltd

1. Introduction

1) GMB (the Union) submitted an application to the CAC dated 3 August 2022 that it should be recognised for collective bargaining purposes by The Noble Collection UK Ltd (the Employer) for a bargaining unit comprising “all managerial, office/administration and retail Staff employed by The Noble Collection UK Ltd at 26-28 Neal Street, London WC2H 9QQ; 26-28 Neal Street, London WC2H 9PS; and Hamleys Toy Store, 188-196 Regent Street, London W1B 5BT” The location of the bargaining unit was given as 26-28 Neal Street, London WC2H 9QQ; 26-28 Neal Street, London WC2H 9PS; and Hamleys Toy Store, 188-196 Regent Street, London W1B 5BT. The application was received by the CAC on 3 August 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 8 August 2022 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 Professor Gillian Morris, Panel Chair, and, as Members, Mr Kieran Grimshaw and Mr Paul Noon OBE . The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 17 August 2022. The acceptance period was extended to 31 August 2022 to allow the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a decision.

2. Issues

4) 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; and therefore, should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent a request for recognition to the Employer on 19 July 2022. ^{[footnote 1]} The Union did not indicate on the application form the Employer’s response to the initial request. A copy of the initial request letter and the Employer’s response dated 20 July 2022 were provided by the Union to the Case Manager in a separate email on 3 August 2022. In its response the Employer declined the Union’s request that it should agree voluntarily to recognition.

6) When asked whether the Union had made a 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.

7) The Union stated that the total number of workers employed by the Employer, was 25. The Union stated that there were 25 workers in the proposed bargaining unit, of whom 14 were members of the Union. 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 that it could provide such information on a confidential basis to the CAC.

8) The Union stated that the reason for selecting the proposed bargaining unit was that all managerial, office/Administrator and retail sales assistants worked under the same general particulars of employment. The Union said that the business operated at the Hamleys concession and the shop and office at Neal Street; some staff were deployed at Neal Street, and some rotated between Neal Street and Hamleys. The Union said that some staff had Hamleys as their work base in their contracts but could and did work at Neal Street. The Union said that its proposed bargaining unit comprised both the main establishment (shop and office) and the concession and that the workers in them carried out similar functions and had similar terms and conditions of employment. The Union said that it believed that this made industrial sense and was fully compatible with effective management. 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 “No”.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 3 August 2022.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 18 July 2022. When asked what its response was, the Employer said that it had declined voluntary recognition by email.

11) The Employer said that it had received a copy of the application form from the Union on 3 August 2022. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that it disagreed with the statement on the Union’s application that all managerial, office/administrator and retail sales assistants worked under the same general particulars of employment. The Employer said that there were significant differences between the terms and processes for retail and office based staff including working hours, compensation, working environment, benefits, and policies and procedures and that it separately reviewed and maintained such terms, entitlements and policies/procedures in accordance with relevant market forces and practical requirements due to the differing natures of these roles.

12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) The Employer said that it did not agree with the number of workers in the bargaining unit as defined in the Union’s application. The Employer said that three of the employees on the UK payroll had significant management responsibility for collective bargaining purposes and therefore would not be appropriate for inclusion.

14) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer said that it had no oversight of any data/dialogue between its employees and the Union so was unable to agree or disagree. When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer said that it was surprised that 14 employees would favour collective bargaining. The Employer said that it was a relatively small company and was currently able to review and react to changes in market forces very quickly where appropriate (for example, the retail employees had received two increases in their rate of pay this year in response to the cost of living increase and to ensure its rates of pay remained competitive). The Employer said that it would have expected that employees would be concerned that bringing a third party into the process would necessitate such processes being slower.

15) The Employer answered “N/A” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

16) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the Union (paragraph 36(1)(a)) and whether 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 (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 workers within the proposed bargaining unit, 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 August 2022 from the Case Manager to both parties.

17) The information requested was received by the CAC from both parties on 15 August 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

18) The list supplied by the Employer indicated that there were 25 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 14 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 14, a membership level of 56%.

19) A report of the result of the membership and support check was circulated to the Panel and the parties on 17 August 2022 and the parties were invited to comment on the results by close of business on 19 August 2022.

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

20) In a letter to the Case Manager dated 19 August 2022 the Employer stated that, whilst it did not dispute the membership numbers provided in the check, it did not agree 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. The Employer said that it was not surprised (nor unsupportive) that individual union membership amongst its staff appeared relatively high for a small staff group, but that it did not believe this to be indicative of a desire, in the majority of the staff group, for the Union to be granted entitlement to conduct collective bargaining on their behalf. The Employer said that it understood that the Union had undertaken significant lobbying for membership over recent months, and inducements/benefits of membership were forcefully marketed on the Union’s website. The Employer said that, as a business, it recognised and supported the benefits of individual union membership (e.g. with regards to legal support and support in instances of grievance and disciplinary matters) but that it would be extremely surprised if, given the opportunity to make a balanced and fully informed decision, that many of its staff would consider such collective bargaining to be necessary or indeed in their personal interest. The Employer said that the following provided illustrations of this:

1. Its retail staff were paid at 100 % of salary throughout the pandemic Furlough period, despite the staged lowering in government funding from 80% to 60%. The business did this voluntarily and unconditionally, and not because of any request/negotiation by employees or any representatives.

2. The Employer did unfortunately have to make two involuntary redundancies during the pandemic. It consulted with all retail staff, sought voluntary redundancy first, and fully consulted on the selection criteria. The Employer was able to redeploy some staff members into the office team (as sales increased in this area) and re-engineered another role to meet changing needs. Being able to respond swiftly to the circumstances meant it was able to significantly limit the number of necessary redundancies and lessen the burden of uncertainty of a prolonged process that collective bargaining would have required.

3. The Employer said that retail sales remained significantly down on pre-pandemic levels but that despite this significant loss in revenue the sales commission and customer service bonus schemes in place for the retail staff pre-pandemic had been reinstated. The retail staff had also had two increases in their hourly rate since the beginning of 2022, the first in January and the second in April in response to the cost of living crisis. The Employer said that it had been able to review and gain unconditional approval for this second increase within 24 hours and that had it been obliged to involve a third party, this would have resulted in inevitable delay in its staff receiving the agreed increase in their pay.

4. The Employer said that staff turnover in the business had always been and remained very low, particularly in comparison with the wider retail industry. The average length of service of the retail team was 5.05 years and the average length of service of the office team is 6.08 years which the Employer believed was indicative of continuously strong employee relations.

5. The Employer said that established office staff had received a circa 20% bonus in December and a payrise in January. Each member of the office staff confirmed they were happy with their remuneration, and the Employer had received no collective or individual requests for an increase or revision to terms. The Employer said that the three members of staff who transitioned from the retail to the office team in the last 12 months did so on revised terms (salary and hours) and accepted the offer readily and unconditionally.

The Employer said that taking the above into consideration it was confident that the majority of its employees, whether union members or not, if given a balanced assessment of benefits and drawbacks of collective bargaining by a third party, would not favour collective bargaining in the particular circumstances of their employment with the Employer.

21) In an email to the Case Manager dated 17 August 2022 the Union set out the provisions of paragraph 36 of the Schedule; said that the Union had 56% membership; and said that it knew that the majority of workers favoured recognition of the Union.

7. Considerations

22) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

23) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is defined in paragraph 10(6) as “the period of 10 working days starting with the day after that on which the employer receives the request for recognition”. The Panel does not consider that the Employer’s response to the Union’s request, in its email dated 20 July 2022, indicated a willingness to negotiate on the part of the Employer. The Panel therefore considers that paragraph 11 applies.

24) The Panel is also 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.

25) The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

26) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 16 - 18 above) showed that 56% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 17 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

27) 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. For the reasons given in paragraph 26 above the Panel has concluded that the level of union membership within the bargaining unit stands at 56%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. The Panel has received no such evidence to the contrary in this case. The Panel has considered carefully the Employer’s submissions set out in paragraph 20 above. The Panel notes the Employer’s submission that a majority of workers in the proposed bargaining unit would not favour recognition of the Union but does not consider that the reasons given for this submission, which were not supported by documentation from any Union member opposing recognition, constitute evidence that a majority of workers in the proposed bargaining unit would not favour recognition of the Union.

28) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, a majority of the workers in 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, as required by paragraph 36(1)(b) of the Schedule.

8. Decision

29) For the reasons given in paragraphs 22-28 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Kieran Grimshaw

Mr Paul Noon OBE

24 August 2022

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1. In an email to the Case Manager dated 3 August 2022 the Union said that it had sent the request to the Employer on 18 July 2022. ↩