Decision

Acceptance Decision

Updated 11 December 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1338(2023)

6 July 2023

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:

NUJ

and

Business Insider Europe Limited

1. Introduction

1) The NUJ (the Union) submitted an application to the CAC on 15 June 2023 that it should be recognised for collective bargaining by Business Insider Europe Limited (the Employer) for a bargaining unit comprising the “Editorial, Social and Video staff”. The location of the proposed bargaining unit was 10 East Road, London, N1 6AD. The CAC gave both parties notice of receipt of the application on 15 June 2023. The Employer submitted a response to the CAC dated 22 June 2023 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 Mr Rohan Pirani, Panel Chair, and, as Members, Mr Martin Kirke and Mrs Anna Berry. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 29 June 2023. The acceptance period was then extended to 13 July 2023 to allow time to conduct a membership check and for the parties to comment on the results before the Panel arrived 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 made its formal request for recognition on 9 January 2023. In an email received by the Union on 20 January 2023, the Employer requested proof of support among those in the workforce for Union recognition. On 1 February 2023 the Union again wrote to the Employer proposing a process for the supply of information relating to employee support whilst not revealing individual identities. However, the Employer replied on 6 February 2023 rejecting the proposal and refusing to engage further. On this basis Acas was approached by the Union to assist with satisfying the Employer as to the Union’s level of support for recognition. However, on 13 March 2023, the Employer refused to engage with Acas and reiterated that it would rather go through the statutory process than engage in a voluntary process. The Union enclosed the exchange of correspondence with the application.

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. The Union further stated, “ACAS was approached by the Union, however the Company refused to cooperate with them”.

7) The Union stated that the total number of workers employed by the Employer was approximately 129 and that approximately 64 of these workers were in the proposed bargaining unit, of whom 46 were Union members. Asked whether the Employer agreed on the number of workers in the proposed bargaining unit the Union answered “No”. When called upon 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, “The NUJ contends that all of its members, making up 72% of the proposed bargaining unit, are in favour of the NUJ gaining recognition at Insider Europe Ltd. However, support for recognition is not limited to members and we anticipate significant support amongst non-members too. As outlined above, membership records will be provided to the CAC case manager for a statistical check at the next stages in the process”.

8) The Union stated it had selected the proposed bargaining unit because of the nature of the work the workers undertook, the location and the management structure they operated under.

9) When asked whether the bargaining unit had been agreed with the Employer the Union answered “No”.

10) Finally, the Union stated that there was no existing recognition agreement which covered any of the workers in the bargaining unit, it 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 9 January 2023 ^{[footnote 1]}.

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

11) In its response to the Union’s application the Employer stated that it received the Union’s written request for recognition on 9 January 2023 and it had responded on 20 January requesting clarification of the proposed bargaining unit, together with evidence to demonstrate support for recognition within the bargaining unit

12) The Employer confirmed that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union. It said it did not agree with the proposed bargaining unit as the description of the proposed bargaining unit was vague and the rationale for the proposed bargaining unit was not clear. The Employer further confirmed that the proposed bargaining unit as defined by the Union, was not compatible with effective management.

13) When asked if, following receipt of the Union’s request, it had proposed that Acas should be requested to assist, the Employer answered “No”.

14) The Employer stated that it employed a total of 138 permanent workers. Asked whether it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application the Employer answered, “No”.

15) When asked to state the number of workers in the Union’s proposed bargaining unit and the reason for any difference, the Employer stated “81 (reason for difference not known)”.

16) The Employer said there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

17) The Employer, when asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, stated “We are aware that the union has some members in the proposed bargaining unit. However, we do not track union membership and so cannot agree with the union’s estimate. We therefore request that the Case Manager undertake a confidential membership check”.

18) 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 stated “On 25 January 2023, the Company held a meeting with the relevant employee group in open forum to discuss any concerns they wanted to raise in the context of their employment. During this session, employees were invited to submit notes (on an anonymous basis) indicating any positive factors or areas of concern that they wished to highlight. Of 68 responses received only one referenced union recognition”.

19) Finally, the Employer stated it was not aware of any previous application under the Schedule for statutory recognition by the Union in respect of this or a similar bargaining unit. Asked 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 answered “N/A”.

5. The check of membership and support

20) 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 proposed 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 proposed 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 and dates of birth. 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 23 June 2023 from the Case Manager to both parties.

21) The information requested from the Employer was received on 27 June 2023 and from the Union on 28 June 2023. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

22) The list supplied by the Employer showed that there were 94 workers in the proposed bargaining unit. The list of members supplied by the Union contained 44 names. According to the Case Manager’s report the number of Union members in the proposed bargaining unit was 43, a membership level of 45.74%. A report of the result of the membership check was circulated to the Panel and the parties on 30 June 2023 and the parties’ comments invited.

6. Parties’ comments on the membership check

23) In its response dated 5 July 2023, the Union stated that the membership check demonstrated that members of the union constituted at least 10 per cent of the relevant bargaining unit, (even on the Employer’s case as to which posts fell within the relevant bargaining unit). Therefore, the Union’s application was valid under paragraph 36(1)(a) of the Schedule. The Union also stated that the membership checks also demonstrated that the majority of the workers in the relevant bargaining unit would be likely to favour recognition of the Union, (even on the Employer’s case as to which posts fell within the relevant bargaining unit), on the following basis:

• The Union already enjoyed a near-majority membership within the relevant proposed bargaining unit, and from this the CAC can reasonably infer that all the Union members would favour collective bargaining and that some non-members would also favour it.
• Given the near majority membership the CAC would recognise the high probability of there being a ‘bandwagon’ effect with this application which would generate additional support for the Union. Therefore, the Union’s application was also valid under paragraph 36(1)(b) of the Schedule.

24) The Union also contended that as a separate and distinct point that the proposed bargaining unit described in its application did not include all of the posts identified at paragraph 4 of the CAC membership report. On this basis the Union contends the proportion of members within the proposed bargaining unit for which it sought recognition was higher than the report suggested. Details of roles the Union believed were outside the bargaining unit, and the reason for their exclusion was described as follows:

• Account director: 8 people (sales and marketing/ advertising)
• Associate: 1 person (advertising)
• Executive editor: 3 people (2 bureau chiefs and one on Insider Intelligence [market research])- too senior, not editorial.
• Fellow: 19 people, many leaving this month (temporary employees hired for 6 months — sometimes extended by 3 months)
• Head of content partnerships: 1 person (not editorial, too senior)
• Senior director: 2 people (1 in Insider Intelligence, 1 in Business Development), not editorial.
• Senior project manager: 1 person (advertising), not editorial

25) In its response dated 5 July 2023, the Employer stated that it did not appear from the CAC’s membership report that the Union had majority support.

7. Considerations

26) 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 carefully considered the submissions of both parties and all the evidence in reaching its decision.

27) 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 in that the Employer’s response to the Union’s formal request was a call for more information rather than an indication of a willingness to negotiate. In the Panel’s view an employer setting a threshold for support before talks take place is not the same as being prepared to enter into negotiations. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 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)

28) 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 Union’s proposed bargaining unit. The membership check conducted by the Case Manager described in paragraph 22 above showed that 45.74% of the workers in the proposed bargaining unit were members of the Union. 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 proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

29) 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.

30) The Panel notes from the membership check that over 45% of the workers in the proposed bargaining unit are members of the Union. 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. The Panel, based on the industrial relations experience for which it was appointed, believes that there will be a number of non-members that would also be likely to support recognition of the Union and this, coupled with the observation on the part of the Union that the numbers in the bargaining unit are significantly lower than suggested by the results of the Case Manager’s comparison, leads the Panel to conclude that this test is met. On the evidence before it, the Panel has therefore decided that 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

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

Panel

Mr Rohan Pirani, Panel Chair

Mr Martin Kirke

Mrs Anna Berry

6 July 2023

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1. The date given referred to the date of the Union’s formal request for recognition and not the date that the Union served the Employer with a copy of the application and supporting documents, which was the question asked. ↩