Decision

Bargaining Unit Decision

Updated 11 December 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1338(2023)

31 October 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

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 Ms Anna Berry.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3) By a decision dated 6 July 2023 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 parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit.

2. Hearing

4) A hearing was held on 11 October 2023 in London and the names of those who attended the hearing are appended to this decision. Both parties provided written submissions prior to the hearing together with supporting documentation. We also heard oral evidence from Miss Leah Goldman, for the Employer, who is the Chief of staff to the Chief People Officer. For the Union, we heard from Ms Lindsay Dodgson, an NUJ Workforce Representative at the Employer.

5) Both the Union and the Employer worked collaboratively to refine further the Proposed Bargaining Unit. The panel were most grateful to both sides in being able to reduce and refine the matters in dispute. We would also like to record our gratitude to both counsel and all those who attended the hearing for the helpful way in which they conducted themselves.

3. Late Submissions

6) On 5 October 2023, the Employer sent an email to the CAC containing two attachments. The Employer in the covering email stated that the Union had asserted in its submissions that no significant differences applied in respect of the Employer’s expectations as to pay, hours and holidays. The email went on to say that the Employer only now realised that there was additional evidence, which was relevant to assist the CAC and accordingly, attached a supplemental witness statement and accompanying documents. The Employer believed that this evidence which would have emerged in appropriate questioning during the hearing in any event, so in providing it at this stage, they sought to give the Union additional notice of this evidence.

7) The email from the Employer with attachments was forwarded to the Union on 6 October 2023. The Union, in its response, stated “In regard to submitting late evidence, we believe these should not be accepted. The CAC’s letter of 29 August 2023 is very clear on this and says (in bold text) “No new evidence should be sent to the CAC once submissions have been lodged and on no account should a party cross-copy new evidence to another party once submissions have been lodged. If a party wishes new evidence to be considered the material should be brought to the hearing and the Panel will decide whether it should be admitted.”

8) The Panel Chair, having taken account of the relevant correspondence, confirmed that a decision about the late admissions from the Employer would be made at the hearing.

4. Decision on the further submissions

9) In the event, and very sensibly, no objection was made by the Union to admission of the late documents on the condition that the Union was given permission to submit evidence from Ms Dodgson, an NUJ Workplace representative at the Employer. The admission of this further Union evidence was, in turn, agreed by the Employer. In deciding to admit the further evidence we also took into account its relevance to the issues the panel had to determine and the fact that it would likely be adduced during questioning in any event. For these reasons we decided to admit the further submissions.

5. Clarification of the matters in dispute

10) Prior to the hearing the Employer and Union had agreed that the grades/roles set out below would be included in the bargaining unit and that the Employer was “happy to recognise” the Union in respect of such following employees:

Junior reporter 

Senior reporter

Reporter

Associate editor

Senior video producer

Producer

Lead producer

Correspondent

Senior correspondent

11) It had been also agreed between the Employer and Union that the roles set out below would be excluded from the bargaining unit.

Deputy Editor

Deputy Executive Editor

Senior Managing Producer

Deputy Executive Producer

Senior Managing Producer

Fellows

12) The dispute between the Employer and the Union, which was confirmed at the commencement of the hearing, was in respect of the following roles (which we refer to as the Disputed Positions):

Supervising Producer 

Managing Producer

Editor

Senior Editor

6. Relevant Numbers and the Employer

13) The Employer is a global online media company that produces and publishes journalistic content under business, news, and lifestyle categories in both written and video formats.

14) The parties were helpful in agreeing and providing the numbers in each of the relevant positions.  For the Disputed Positions there are 7 Editors, 8 Senior Editors, 2 Managing Producers and 2 Supervising Producers. There are a total of 44 other employees in the agreed and non-disputed positions.

7. Union’s Submissions

15) The Union’s proposed bargaining unit was those staff working for the Employer as: ‘Editorial, Social and Video staff’ (later clarified and refined as set out above). They say this proposal is a clear, logical, and readily identifiable bargaining unit. It also accords with the description in the  statutory request dated 9 January 2023. They are a distinct team undertaking a distinct function, in a  distinct location.

16) The Union emphasised that the CAC was required to give prime consideration to the bargaining unit proposed by the Union in its request to the Employer (paragraphs 19 (2) & (19A (2)). It was only in circumstances where the original proposal was judged to be an inappropriate unit, that the question of what an appropriate unit is becomes relevant. The Union referred to the Court of Appeal in the case of Lidl Ltd and CAC v GMB [2017] EWCA Civ 328 and pointed out that these considerations were not wholly distinct from the question of compatibility with effective management: to a considerable extent the assessment of the sub-paragraph (3) matters will feed into the assessment of the compatibility of the unit with effective management.

17) The Union further stated that by adopting a broad criterion of ‘appropriateness’ subject to specified considerations to be ‘taken into account’, rather than setting hard-edged criteria, Parliament intended to allow full range to the expert judgement of the CAC in making decisions about bargaining units. The Union continued to explain that insofar as the concept of effective management was concerned, it should be understood as relating principally to methods of resolving issues of pay, hours and holidays by means of collective bargaining. The Union confirmed that in other words, taking account of the statutory criteria and the way in which, the undertaking operates and is organised, the issue is whether the proposed bargaining unit offers a sensible and workable vehicle for settling by collective bargaining the pay, hours and holidays of the workers concerned. The Union stated that the overriding requirement was the need for the bargaining unit to be compatible with effective management and the subsidiary factors may be taken into account only in so far as they do not conflict with that need (TULR(C)A 1992 Schedule A1 para 19B(2)).

18) In terms of the relevant factors of paragraph 19B of The Schedule they say as follows:

(i) Paragraph 19B(2)(a) - Compatibility with effective management: members of the Proposed Bargaining Unit are a distinct team  undertaking  a  distinct  function,  in  a  distinct  location.  They  have  a  distinct  identity  within  the  employer’s organisation both from a work production point of view, and from a managerial one. The Proposed Bargaining Unit is already managed by the employer as a distinct unit, and the Union submitted that this necessarily  reflects  the  employer’s  view  that  classifying  them  in  this  manner  is  compatible  with  effective  management.

(ii)Paragraph 19B(3)(a) - The views of the Employer and Union:

a) The Union’s Proposed Bargaining Unit constitutes 64 staff members in the Editorial, Social and Video team, a total of 64  employees  representing  72%  of  the  workforce.  The Editorial, Social and Video team is engaged to produce the Employer’s business and financial news as well as lifestyle and video content, which are produced in line with traditional journalistic principles. As such, articles across the magazines are editorially independent and are not signed off by external clients. Accordingly, the nature of the Proposed Bargaining Unit is not the same as managing clients. They are a distinct  team undertaking a distinct function, in a distinct location.

b) On 1 February 2023 the Union wrote to the Employer again proposing a process for the supply of information relating to employee support  whilst not revealing individual identities. However, on 6 February 2023, the Employer wrote back  rejecting the proposal and refused to engage further on the basis that it was not convinced that there  was sufficient support amongst the staff.

(iii) Paragraph 19B(3)(b) - Existing national and local bargaining arrangements : There  are  no  existing  national  or  local  bargaining  arrangements  to  be  taken  into  account  in  considering the compatibility of the Proposed Bargaining Unit with effective management.

(iv) Paragraph 19B(3)(c) - The desirability of avoiding small fragmented bargaining units: There is no basis to suggest how the Union’s Proposed Bargaining Unit would cause fragmentation of bargaining units in Business Insider (Europe) Limited, as there is no other bargaining group in existence, and nothing has  been suggested to the contrary by the Employer. The Proposed Bargaining Unit incorporates the bulk of the staff at the relevant location. Since this Proposed Bargaining Unit would be the sole Proposed Bargaining Unit, the NUJ relies upon the Court  of Appeal’s observation in Lidl  to submit that paragraph 19B(3)(c) did not apply where there was a single bargaining unit and no risk of proliferation.

(v) Paragraph 19B(3)(d) - The characteristics of workers: The primary characteristic of the ‘Editorial, Social and Video’ staff, distinguishing those within the Proposed Bargaining Unit from those outside it, is that the nature of the work they undertake is specialist magazine journalism  creating largely editorially independent content for Business Insider (Europe) Limited.  To the best of the NUJ’s knowledge and belief this is also reflected in the Employer’s expectations as to pay, hours and holidays, and that no significant differences apply between them.

(vi) Paragraph 19B(3)(e) - The location of workers:  All roles within the Proposed Bargaining Unit are currently being undertaken by workers in the Editorial, Social and Video Team working from the Business Insider (Europe) Limited London office at 5 Market Yard Mews,  194-204 Bermondsey Street, London, SE1 3TQ as their contractual place of work.

19) In terms of the disputed positions the Union says:

Editors and Senior Editors both manage staff in the same way, and the seniority often comes with length of service at the company, rather than an increase in responsibilities. 

Similarly, with Managing Producer and Supervising Producer roles -both manage staff but neither have a great deal of seniority in the wider organisation.

None of the roles in dispute, make policy decisions in the company, or have much sway in terms of company’s business or overall editorial decisions, so not including them in the bargaining unit would be an arbitrary and strange outcome. Decision makers only appear on the executive editor level.

20) The written submissions were then amplified and clarified at the hearing. The dividing line was said to be drawn by the Union where there is a level of supervision and business involvement which would make being part of the bargaining unit inappropriate.

21) It was emphasised by the Union that for all those in in the agreed bargaining unit and the Disputed Positions the contractual position regarding hours was the same.  The same was true for holidays, as well as the process for requesting holidays. In relation to pay, all those in the Union’s proposed bargaining unit are subject to the same process of determining pay increases: having pay aligned to various goals (which differ). The distinctiveness of the proposed bargaining unit was said to be that they are all responsible for editorially independent content. Other departments within the Employer, advertising and sponsored content, had been excluded from the Union’s proposal.

22) In relation to the conflict of interest point raised by the Employer, it was said that the objection was, in reality, very narrow: some of the individuals in the Disputed Positions might make suggestions or contributions in relation to pay increases. It was also emphasised that it was not unusual to have different levels of seniority within the same bargaining unit.

8. Employer’s submissions

23) In relation to Paragraph 19B(2)(a), the need for compatibility with effective management, the Employer says it operates one global newsroom. US and UK employees are fully integrated in the management structure. The Disputed Positions, it says, are excluded from the bargaining unit in the US, where The News Guild of New York is recognised by Insider’s US entity. They therefore submit that it would not be compatible with effective management, in this context, for the Disputed Positions to be included in the bargaining unit in the UK.

24) The Employer also says that one of the implications of including the Disputed Positions in the UK bargaining unit would be that, for example, a Deputy Executive Editor would require input from their Senior Editors (3 of which are based in the US and one is based in the UK). The UK Senior Editor would face an immediate conflict of interest between their position within the Union bargaining unit and the requirement to participate (alongside members of their peer group who are not subject to collective bargaining) in confidential business strategy discussions with Insider senior management in respect of matters which could ultimately become the subject of collective bargaining and/or negotiation. They say this is clearly not compatible with effective management.

25) The Employer says there are relatively few employees in the Disputed Positions as compared to the wider newsroom. Accordingly, the Disputed Positions have a more concentrated influence on senior management and play a critical role in feeding into and informing decisions taken by senior management at a strategic level. According to the Employer, The Union’s submission that both Editors and Senior Editors manage staff in the same way is incorrect.

26) They go on to say that it would not be compatible with effective management for the Disputed Positions to be included in the bargaining unit given: (i) their input into broader strategic business decisions; (ii) their role in performance managing their team; and (iii) their influence on matters such as budgetary and hiring decisions.

27) In particular, the Employer says that including the Disputed Positions in the bargaining unit would create a conflict of interest that is incompatible with effective management: between their responsibilities to Senior Management (for example in recommending what their team should be paid) and their position as a member of the bargaining unit in respect of which these same matters are subject to collective bargaining.

28) It was also highlighted that Senior Managing Producers have been excluded from the proposed bargaining unit notwithstanding that they report into Supervising Producers.

29) The Employer, in its bundle, also referenced organisational charts. These showed the UK-based roles in its editorial group, including the Disputed Positions, as well as more senior roles and US-based roles. The Employer confirmed the organisational charts were live, internal and were updated periodically by the business and set out its UK-based roles in the editorial group as at 28 September 2023.

9. Relevant Test – Considerations

30) The Panel begins with the statutory framework. The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the 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. Paragraph 19B (1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and 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: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small, fragmented bargaining units within an undertaking; 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 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.

31) We 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”.

32) In reaching its decision the Panel has taken account of the views of the Union and the Employer as expressed in their written submissions, responses to questions and oral submissions during the hearing. The centrality of the dispute was compatibility or otherwise with effective management.

33) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. That does not require the Panel to determine whether it is the most appropriate bargaining unit; only whether it is appropriate. This is the overriding requirement under 19B(2) and relates principally to the matters to be collectively bargained for under the statutory regime namely pay, hours and holidays. The requirement is that the proposed bargaining unit would be compatible with effective management, not that it be compatible with the most effective management. 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.

34) We remind ourselves that the statutory  test  is  set  at  the  comparatively  modest  level  of  appropriateness, rather than of the optimum or best possible outcome (see R (on the application of Kwik-Fit (GB) Ltd) v Central Arbitration Committee [2002] EWCA Civ 512, [2002] IRLR 395, [2002]  ICR 1212, CA, per Buxton LJ).

35) We should not reject the Union’s proposed bargaining unit because we consider that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, should we consider whether it is the most effective or desirable unit in that context.

36) We note that the disputed positions all have responsibility for disciplinary and grievance processes and outcomes within their teams. They are also consulted on, and provide input to, broader strategic decisions that affect the business as a whole. As part of their managerial responsibilities, each of the Disputed Positions has a role in performance managing their team and influence on matters such as budgetary and hiring decisions. Unlike those in the non-disputed positions, they all have reports and are therefore regarded as managerial roles (although there is no managerial grading structure).

37) As we have said, both the Union and the Employer worked collaboratively to refine further the proposed bargaining unit. The panel were most grateful to both sides in being able to reduce and refine the matters in dispute.  The Union explained that the dividing line between those positions in and out of the Proposed Bargaining Unit was based on their assessment of a level of supervisory responsibility and business involvement which would make being part of the Proposed Bargaining Unit inappropriate. However, both parties agreed that Fellows, who have neither such responsibility nor involvement, should also be excluded from the Proposed Bargaining Unit. This is because the employment contracts of Fellows differ significantly from those in the Proposed Bargaining Unit as they emanate from internships.

38) As we have set out above, one of the disputed positions in the Proposed Bargaining Unit is the grade of Supervising Producer. However, both the Union and the Employer have agreed to exclude the role of Senior Managing Producer. In fact, the organisational charts provided by the Employer at the date of exchange of submissions shows the UK Senior Managing Producer reporting into the UK Supervising Producer. Therefore, the role of Supervising Producer is senior to that of Senior Managing Producer. The superiority of role is underlined by the fact that the Supervising Producer has three other roles, in addition to the Senior Managing producer, reporting into it.

39) It is sometimes inevitable, especially without sight of or access to relevant documentation, that unions are unaware of the precise structure and organisation of the Employer. Nonetheless, the inclusion of the Supervising Producer in the Proposed Bargaining Unit whilst excluding the Senior Managing Producer results in an illogicality at where the Union draws the dividing line. The illogicality is substantive as the Proposed Bargaining Unit would include a role (Supervising Producer) which has greater supervisory and management responsibility as well as strategic involvement in the business than an agreed excluded role (Senior Managing Producer).

40) Because of this, we conclude that the Proposed Bargaining Unit, as defined in the application and then further refined by the Union during the process, is inappropriate. Although the bar is relatively low, it is not compatible with effective management because of this inconsistency and illogicality. We have reminded ourselves that in rejecting the Proposed Bargaining Unit we do not do so because we feel that a different unit would be more appropriate.

41) Pursuant to paragraph 19(3) we must further decide a bargaining unit which is appropriate. It seems to the panel that the starting point, in considering the employer’s or any other alternative unit, should be the dispute relating to the remaining three roles, namely Managing Producer, Editor and Senior Editor. Both parties have already sensibly defined the relevant dispute and we agree that they have both highlighted the relevant fault line for our purposes.

42) From the Union’s perspective, the same point still stands. In other words, they say the line has been drawn appropriately, taking into account supervisory responsibility and business involvement. They also emphasise the similarity between the contracts of all those in the bargaining unit relating to hours, holidays and pay. All those in the bargaining unit have the same contractual provisions relating to hours and holidays. In addition, the process for arranging and agreeing holidays is the same for all those in the Proposed Bargaining Unit. The provisions for overtime are the same for everyone in the editorial side of the Proposed Bargaining Unit. Although the individual goals are different when it comes to determining pay rises the process is essentially the same for all the members of the Proposed Bargaining Unit.

43) The central dispute between the Union and the Employer, when it comes to the appropriateness or otherwise of a bargaining unit, is whether the input of those in the remaining disputed roles (Managing Producer, Editor and Senior Editor) into issues of pay makes it inappropriate for them to be included in the same bargaining unit as those in the agreed positions.

44) All those in the three remaining disputed positions are managerial roles in the sense that they have reports. None of those in the roles which are not in dispute have anyone reporting into them. As the Union has correctly pointed out, it is not unusual to have different levels of seniority within the same bargaining unit. There is no reason, as a matter of principle, to exclude those in managerial positions from a bargaining unit which includes roles to report to them.

45) Of course, the central issue is compatibility with effective management. It is not disputed that the three roles in issue have input into the remuneration process, in the sense that they are all responsible for making recommendations to their managers about salary increases for individuals in their teams. Such recommendations are based on their assessment of the individuals’ work in line with goals which have been set. Although Ms Dodgson, for the Union, was of the opinion that these managerial roles would not always know what salary those in their team were receiving,  we prefer the evidence of Miss Goldman on this point. Miss Goldman, as Chief of Staff to the Chief People Officer, would have more informed knowledge of the intricacies of these processes. Moreover, the managers in the three disputed roles would have access to sensitive and confidential information which would enable them to make such recommendations. The managerial element of their roles is also underlined by the fact that their quantitative and qualitative goals, which affect their own levels of remuneration, include elements relating to leadership, planning and strategy.

46) However, as has been emphasised by the Union, those in the remaining disputed positions are not, even on the employer’s case, decision makers when it comes to salary increases for those in their teams (who both sides agree should be in the bargaining unit). The pay budget itself comes from the more senior executives. Nonetheless, we accept Miss Goldman’s evidence that generally the teams making the actual decisions on pay and salary increases defer to those making the recommendations.

47) Team performance and how effectively those in the remaining Disputed Positions manage their team are factors which influence the remuneration of these three roles. This differs from the way in which remuneration is considered for the team members themselves, which is linked to personal contribution only. Those in the three Disputed Positions are also required to provide substantive feedback, which is then factored into policy and wider business changes. If the three further Disputed Positions were included in the bargaining unit, we agree that this could create a conflict of interest. The conflict could be between their responsibilities to Senior Management, in recommending what their team should be paid, and their position as a member of the bargaining unit in respect of which these same matters are subject to collective bargaining. Significant and substantive input into the remuneration process of members of their team which includes access to confidential information, both in relation to the salaries of the individuals and also potential budgets and impact on the wider business, makes it inappropriate, in the panel’s view, to include them as members of the bargaining unit. Were these positions to be included in the bargaining unit there is also the potential that what those in the Disputed Positions recommend for their reports could directly impact, and potentially adversely, what remuneration package they themselves receive.

10. Decision

48) The Panel’s decision is that the appropriate bargaining unit is the Editorial, Social and Video staff but excluding the positions of: Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor.

49) As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel will now proceed under paragraph 20(2) of the Schedule to decide if the application is valid within the terms of paragraphs 43 to 50 of the Schedule.

Panel

Mr Rohan Pirani, Panel Chair

Mr Martin Kirke

Ms Anna Berry

31 October 2023

11. Appendix

Names of those who attended the hearing:

For the Union

Madeleine Stanley                   -        Counsel 

David Ayrton                          -        Senior Organiser, National Union of Journalists

Mostafa Rajaai                        -        Organiser, National Union of Journalists

Lindsay Dodgson                    -        NUJ representative, Business Insider

Karim Pal                                 -       Pupil Barrister

For the Employer

Georgina Hirsch                       -       Counsel

Leah Goldman                          -      Chief Of Staff

Alex Farrell-Thomas                -      Associate, Osborne Clarke LLP

Paul Killen                               -       Partner, Osborne Clarke LLP