Decision

Decision under s.264 of the Act

Updated 11 December 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1338(2023)

 28 November 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

SECTION 264(2) – INTERPRETATION OF COMMITTEE DECISIONS

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, in a decision dated 31 October 2023, the Panel determined that the appropriate bargaining unit was 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.

3. The Union’s application under section 264

5)         Section 264(2) provides that, if a question arises as to the interpretation of a decision or award or declaration of the CAC under Schedule A1 (the Schedule to the Act dealing with trade union recognition), a party may apply to the CAC for a decision.

6)         On 12 November 2023, the Employer emailed the CAC and stated:

“…we highlight two further roles which have not been formally excluded from the bargaining unit –

•           Executive Editor (of which Insider employs two employees); and

•           Copy Chief (of which Insider employs one employee).

In each case, these are very senior roles within the newsroom, each with senior management responsibilities. It came to Insider’s attention while compiling the attached list that these roles were not referred to in the CAC’s decision in respect of the proposed bargaining unit. We apologise for these roles having been omitted in error from the correspondence by both Insider and the NUJ which was considered by the CAC at the hearing on 11 October 2023. However, we understand that in the course of the ACAS negotiations between Insider and the NUJ, it was agreed that these roles would be excluded from the bargaining unit and as such, we hope that this will not be an issue for the NUJ. Finally, an employee who was previously engaged by Insider as the Head of Content Partnerships on the business side of Insider was promoted to Content Strategy Director on 3 January 2023, and moved to the editorial team. It came to Insider’s attention while compiling the list of employees that this role was also omitted in error from the correspondence by both Insider and the NUJ which was considered by the CAC at the hearing on 11 October 2023. We also apologise for this omission. Content Strategy Director is a very senior role with a direct line to leadership that is heavily involved in decision making. Accordingly, Insider’s view is that it would be appropriate to exclude the Content Strategy Director from the bargaining unit, but please let us know if the NUJ have any questions about this”.

7)         The Union, having seen the email dated 12 November 2023 from the Employer, requested the CAC, pursuant to its power under section 264, to interpret its decision as to whether the roles of Executive Editor, Copy Chief and Content Strategy Director which were not referred to during the course of the bargaining unit hearing should also be specially excluded from the determined bargaining unit in the same way that the determined bargaining unit specifically excluded the other senior roles that were identified during the course of the hearing.

8)         Under section 264(2) the CAC can decide a question of interpretation after hearing the parties, or if the parties consent, without a hearing.   In an email from the Case Manager dated 22 November 2023, the Union was asked whether it consented to the disposal of this matter without a hearing. An email was also sent to the Employer on 23 November 2023 asking whether it also consented to the disposal of this matter without a hearing.  By an email dated 23 November 2023 both parties confirmed that they were content for the Panel to deal with the matter without a hearing.  Accordingly, the Panel will deal with the matter on the papers.

4. Considerations

9)         The Panel’s power under section 264(2) goes to the interpretation of an award, decision or declaration.  The interpretation of an earlier decision - in this case the Panel’s decision on the bargaining unit dated 31 October 2023 – is a necessarily limited exercise.  It is not to be equated with a more general power (if such a power exists) to review a decision in light of either new evidence or events that post-dated an earlier decision.  

10)       The Union’s application under section 264(2) and the point of interpretation can be understood only in the context of Panel’s decision on the bargaining unit.  The Panel reminds itself of the careful consideration as to the position of the senior roles and how in paragraphs 36 to 47 in the “considerations” section of that decision the Panel set out its reasons as to why those senior roles should be purposefully excluded. 

11)       Having been requested by the Union to interpret its decision on the bargaining unit, the Panel has decided that the correct and indeed the only possible interpretation is that advanced by the parties, that is the appropriate bargaining unit should also exclude the roles of Executive Editor, Copy Chief and Content Strategy Director Editorial for the same reasons that the roles of Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor were excluded from the determined bargaining unit.

5. Decision

12)       A question having arisen as to the interpretation of the Panel’s decision dated 31 October 2023 on the bargaining unit, pursuant to section 264(2) of the Act, the Panel has decided that the following roles should be also specifically excluded: Executive Editor, Copy Chief and Content Strategy Director Editorial.

13)       The appropriate bargaining unit is therefore the Editorial, Social and Video staff but excluding the positions of: Executive Editor, Copy Chief, Content Strategy Director, Deputy Editor, Deputy Executive Editor Senior Managing Producer, Deputy Executive Producer, Senior Managing Producer, Fellows, Supervising Producer, Managing Producer, Editor and Senior Editor.

14)       As stated in the Panel’s decision of 31 October 2023, 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.

15)       The Panel wishes to make clear that the issuing of this decision under section 264 does not affect the statutory timetable and that the decision period in which the Panel must determine whether the application is invalid within the terms of paragraphs 43 to 50 remains as previously notified.

Panel

Mr Rohan Pirani, Panel Chair

Mr Martin Kirke

Ms Anna Berry

28 November 2023