Decision

Bargaining Unit Decision

Updated 21 September 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1343(2023)

12 September 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DETERMINATION OF THE BARGAINING UNIT

The Parties:

The Public and Commercial Services (PCS) Union

and

Mitie Limited

1. Introduction

1) The Public and Commercial Services Union (the Union) submitted an application to the CAC dated 23 June 2023 that it should be recognised for collective bargaining by Mitie Group Limited ^{[footnote 1]} (the Employer) for a bargaining unit comprised of “Security personnel for Mitie at 22 Whitehall, London, SW1A 2EG. For the purposes of this definition ‘staff’ covers the following job roles (or similar titles in these areas of work): Guarding Manager, Assistant Guarding Manager, Deputy Manager, Assistant Deputy Manager and Security Officer/Guard.” The location of the bargaining unit was given as “22 Whitehall, London, SW1A 2EG.”

2) It is important to note that the role of ‘Guarding Manager’ and ‘Deputy Guarding Manager’ have been renamed as ‘Site Security Manager’ and ‘Deputy Site Security Manager’. Both the Employer and the Union agreed that these were changes in name only and that there were no changes to the substance of either role as a result of the change in name. For ease of reference the Panel will refer to the roles of ‘Guarding Manager’/ ‘Deputy Guarding Manager’ in this decision.

3) The application was received by the CAC on 23 June 2023 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 30 June 2023 which was copied to the Union.

4) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Ms Laura Prince K.C., Panel Chair, and, as Members, Mr Mustafa Faruqi, and Mr Nicholas Childs. For the purposes of the bargaining unit hearing, Mr Robert Lummis replaced Mr Mustafa Faruqi as a Panel Member. The Case Manager appointed to support the Panel was Joanne Curtis.

5) By a decision dated 13 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, a bargaining unit hearing was arranged and 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

6) A hearing to determine the bargaining unit took place virtually on 7 September 2023 Ms R Halliday, Solicitor, Thompsons LLP represented the Union. Ms G Crew, Barrister represented the Employer. Ms Halliday and Ms Crew made oral submissions to supplement the parties’ written submissions and provided further information during the hearing. The Panel was grateful for the helpful and concise submissions made by both representatives.

3. Submissions from the Union

7) The Union submitted that in the list of the categories of workers in the bargaining unit provided by the Employer there was one role missing “Guarding Manager”. The Union and the Employer met, via Teams on 4 August 2023, to discuss the appropriate bargaining unit with a view to reaching agreement. At the conclusion of the meeting, the Union said that the Employer agreed to consider its position on the bargaining unit further and, in particular, to verify whether or not the role of Guarding Manager was in scope for the TUPE transfer to G4S scheduled to take place on 1 October 2023. The Union said it agreed that, if the Guarding Manager role was not in scope to transfer, then it should be excluded from the bargaining unit.

8) The Union said that there was a further e mail exchange between the Employer and the Union on 10 August 2023 which resulted in both parties writing to the CAC to say they were unable to agree the bargaining unit. The Union said that it still wished to include the role of Guarding Manager in the bargaining unit. The Union confirmed that all other elements of the bargaining unit relating to the Security Guards employed on the 22 Whitehall contract were agreed. The Union therefore focussed its submissions on the issue of whether the role of Guarding Manager should form part of the bargaining unit. The Union supported its written submissions with an electronic bundle containing relevant documentation.

9) The Union said that the relevant question was whether the proposed bargaining unit was appropriate. The Union said this was a comparatively modest test and that it was not required to satisfy the CAC that the proposed bargaining unit was the optimum or best possible bargaining unit.

10) The Union submitted that the role of Guarding Manager should be included within the proposed bargaining unit. In the Union’s submission, the inclusion of the Guarding Manager role within the bargaining unit would be compatible with effective management and would not give rise to any relevant conflict of interest. The Union said that the role of Guarding Manager was a front-line managerial role, at a low level within the Employer’s managerial structure. The Union explained that the postholder was responsible for day-to-day operational matters and had relatively modest managerial responsibilities which did not include the power to make decisions about the pay or the terms and conditions of those they were in charge of supervising.

11) The Union submitted that, the inclusion of the Guarding Manager in the proposed bargaining unit would be fully compatible with effective management and would not cut across current management structures or arrangements for determining pay. The Union said that the Guarding Manager was responsible for ensuring that security operations at 22 Whitehall ran smoothly and was a low-level managerial role. The Union said that the Guarding manager had more in common with the staff he supervised than with the senior managers in the management structure above him. The Union said that he worked alongside the staff he supervised, in the same team and at the same location and was an integral part of the security team.

12) The Union said that the fact that the Employer had confirmed that the Guarding Manager was in scope to transfer to G4S confirmed that he was an integral part of the security team. The Union went on to say that the job description for the role did not make any reference to the Guarding Manager having responsibility for disciplinary decision making. More importantly the Union said, the Guarding Manager had no bargaining or decision-making role in relation to the pay and other terms and conditions on which the staff he supervised were employed. There would therefore be no conflict between the role he carried out and him being represented by the Union. The Union said that the Employer’s main representatives at pay negotiations were typically the Account Manager with responsibility for the contract (i.e. the contract between Mitie and the relevant government body) and an HR Business Manager. The Union said that in general these individuals did not have authority to make decisions and were required to report back to the decision makers at a more senior level. The Union said it had entered into many recognition agreements under which the bargaining units included front-line managers and in its experience such agreements were eminently workable because terms and conditions are determined at a higher level in the management structure.

13) The Union said it understood that the role of the Guarding Manager at 22 Whitehall was similar in nature to the role of Site Security Manager employed by the Employer at Abercrombie House. The Employer said that during the course of a previous CAC application, involving security staff employed by the Employer at the Foreign Commonwealth and Development Office at Abercrombie House in East Kilbride, ^{[footnote 2]} the Employer subsequently agreed that the role of Site Security Manager could be included in the bargaining unit and the Union and Employer subsequently entered into a recognition agreement for a bargaining unit including the Guarding Manager role, on 30 May 2023.

14) The Union submitted that during a meeting between the parties on 4 August 2023, the Employer said that it did not want the Guarding Manager in the bargaining unit because, if there was a strike, then he would be required to open the workplace. The Union submitted that this was not a valid reason for excluding the Guarding Manager from the bargaining unit. The Union said its right to call on its members to take strike action was not conditional on being recognised by the Employer. The union said it would be entitled to call all of its members to take part in lawful industrial action, subject to compliance with the statutory balloting requirements, regardless of whether or not a particular role was within the bargaining unit.

15) Finally, the Union invited the CAC to conclude that the bargaining unit should include all the security personnel employed by Mitie at 22 Whitehall, including the Guarding Manager. The Union said that in light of the proximity of the transfer, the Union respectfully requested that the CAC make a decision on the appropriate bargaining unit, and thereafter invite the parties to make submissions on the question of whether recognition should be granted without a ballot, as swiftly as possible.

4. Submissions from the Employer

16) The Employer said that it had offered to recognise the Union in respect of a bargaining unit which included all staff at 22 Whitehall other than the Guarding Manager and remained willing to do so. The Employer said it opposed the current application because it believed that the Guarding Manager role should not form part of a bargaining unit at 22 Whitehall.

17) The Employer said that the bargaining unit proposed by the Union consisted of the Guarding Manager (now known as the “Site Security Manager”), Assistant Guarding Manager (known as “Assistant Site Security Manager”), Deputy Manager (now known as the “Duty Shift Manager”), Assistant Deputy Manager (now known as the Assistant Duty Shift Manager) and Security Officers/Guards. The Employer said although the Assistant Site Security Manager, Duty Shift Manager and Assistant Duty Shift Manager roles had the title “manager”, personnel in such roles were effectively supervisors within the structure of 22 Whitehall. The Employer said that the terms upon which they were employed had similarities to those of the Security Guards. Accordingly, the Employer said it was willing to agree that these roles form part of a Security team bargaining unit at 22 Whitehall. The Employer went on to explain that the Site Security Manager was a managerial position employed on different terms and that this role should not be included in the proposed bargaining unit.

18) The Employer said that the number of staff currently working at 22 Whitehall, was a skeleton staff of 19 whilst 22 Whitehall was being refurbished. The Employer explained that the contract for the site would transfer to G4S on 1 October 2023 and the employees would transfer under TUPE to G4S. The Employer said it did not know what the workforce, at 22 Whitehall, would look like after that transfer. The Employer went on to say, in their written submissions, that the pay, hours and work patterns of the Site Security Manager role were determined separately from and not aligned with those of the other security personnel in the proposed bargaining unit. The Employer gave the example that the bonus arrangements for the Guarding Manager and bonus arrangements for other security personnel in the bargaining unit were distinct. By way of further example, the Employer said that the person employed as the Guarding Manager was paid a salary whereas the other security personnel listed in the proposed bargaining unit were paid an hourly rate. The Employer said that the disparity in these terms not only showed how different the Guarding Manager role was to the other roles, but also how it would hinder the parties ability to effectively negotiate on the terms of the other security employees in the proposed bargaining unit. However, at the hearing, the Employer accepted that their submissions on these points was incorrect to the extent that:-

(a) There were a mix of payment arrangements for staff at 22 Whitehall. In particular, they accepted that some Security Offices received an annual salary (rather than being paid an hourly rate); and

(b) That none of the employees in the proposed bargaining unit (including the Guarding Manager) received bonuses. There was therefore no difference in bonus arrangements in respect of any of the staff within the proposed bargaining unit.

19) The Employer argued at the hearing that there remained important differences between the terms and conditions on which the Guarding Manager was employed and those that the other staff were employed upon. This included the fact that the Guarding Manager was the only employee at 22 Whitehall to receive contractual sick pay. The Union disagreed with this and stated that the Deputy Guarding Manager also received contractual sick pay.

20) The Employer said it was party to over 70 recognition agreements and that it was a standard and accepted approach for the Employer and the various Unions that management level roles were not included in the bargaining unit for the staff managed by those managers. The Employer said that it was common practice for employees below manager level to be considered as distinct groups for collective bargaining purposes.

21) The Employer submitted that inclusion of the Guarding Manager role in the bargaining unit would not promote fair and effective working practices in the workplace. The Employer stated that the purpose of recognition was for collective bargaining of key terms of employment for the staff covered by the recognition arrangement. Inclusion of the Guarding Manager role would result in terms being negotiated through the same mechanism as the terms of the staff managed by this role. The Employer said that the Guarding Manager reviewed/recommended any promotion opportunities and was instrumental in annual appraisals which influenced grading for bonus payments. The Employer said that the Guarding Manager was regularly involved in making decisions and arrangements around hours and shifts worked by the other staff at 22 Whitehall based on the terms collectively negotiated. The Employer said that if the terms of the Guarding Manager was negotiated through the same process it would give rise to a potential conflict of interest. The Employer went on to say that the holder of this role may also be involved in consultation with other staff about changes to terms not covered by collective bargaining, and this to would present a conflict if the manager’s own terms are negotiated through the same process as those of the staff reporting to them. The Employer said that inclusion of this role in the proposed bargaining unit puts the holder in a very difficult position which would not be compatible with fair and effective management.

22) The Employer submitted that whilst it hoped all collective bargaining relating to the security personnel at 22 Whitehall would result in successful agreements with the Union, this does not always happen. The Employer said that where agreement cannot be reached, industrial action may result. During any period of industrial action, management, including the Guarding Manager, play a strategic role in the Employer’s response to the action, including preparation for and carrying out contingency planning. The Employer said that the inclusion of the Guarding Manager role in the bargaining unit would, therefore, place them in a position of direct conflict during periods of industrial action as their ability to, amongst other things, properly advise on and carry out contingency activities in response to strike action would clearly be impacted.

23) The Employer submitted that the Guarding Manager had responsibility for monitoring and reporting to off-site management any misconduct by staff. In addition, they had a role to play in disciplinary procedures involving allegations about employees conduct. The Employer said that the inclusion of this role in the bargaining unit could cause impartiality issues in circumstances where there is a requirement to carry out a disciplinary process against a member of the bargaining unit. The Employer said that the Guarding Manager had responsibility for conducting appraisals and performance management of the security personnel in the proposed bargaining unit and therefore the inclusion of this role in the bargaining unit could cause impartiality issues in circumstances where they are required to carry out a performance management process against a member of the bargaining unit.

24) The Employer submitted that excluding only the Guarding Manager role, one employee, would not result in a materially smaller bargaining unit or fragmented bargaining. The Employer submitted that for the reasons set out above, the inclusion of the Guarding Manager role in a bargaining unit containing the staff reporting to this manager would not be compatible with effective management and would therefore not be appropriate. The Employer submitted that the bargaining unit for security personnel should be as listed above but exclude the Guarding Manager role.

5. Considerations

25) 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:

(1) the views of the employer and the union;

(2) existing national and local bargaining arrangements;

(3) the desirability of avoiding small, fragmented bargaining units within an undertaking;

(4) 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

(5) 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 consider any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must 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.”

26) 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.

27) 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.

28) The Panel finds that the bargaining unit proposed by the Union is compatible with effective management. The Panel’s reasons are that:-

(a) As set out above, the Employer and the Union agreed that a bargaining unit containing all roles contended for by the Union was compatible with effective management save for one role (Guarding Manager);

(b) The bargaining unit contended for by the Union consisted of all staff at one site (22 Whitehall). The bargaining unit contended for by the Employer consisted of all staff at 22 Whitehall except the Guarding Manager.

(c) The Employer raised 4 key objections to the inclusion of the Guarding Manager within the bargaining unit, these were:-

(i) That the terms and conditions of the Guarding Manager were determined separately from the other roles within the proposed bargaining unit. The panel did not find any evidence to support the Employer’s position in respect of this. At the hearing the Employer stated that pay for all roles within the proposed bargaining (including the Guarding Manager role) were determined by “Commercial Services”.

(ii) That the terms and conditions of the Guarding Manager differed significantly from those of others within the bargaining unit. The Employer’s position in respect of this softened at the hearing. Key differences which had been set out in their submissions were not maintained at the hearing. For example:-

(a) in their written submissions, the Employer stated that the Guarding Manager was paid an annual salary whereas other members of the bargaining unit were hourly paid. At the hearing the Employer conceded that there was a mix of both hourly paid and salaried staff amongst the other roles within the bargaining unit.

(b) In their written submissions, the Employer stated that the bonus arrangements differed between Guarding Managers and other employees within the bargaining unit. At the hearing, the Employer conceded that no-one within the bargaining unit received a bonus (including the Guarding Managers).

At the request of the Panel, ahead of the hearing, both the Employer and the Union sent sample employment contracts to the Panel. Having reviewed those contracts the Panel finds that the terms and conditions of employees within the bargaining unit differed significantly but that this difference was not defined by job role. The Panel did not find there to be any material differences between the terms and condition of the Guarding Manager role and the other roles within the bargaining unit such that the inclusion of the Guarding Manager within the bargaining unit would be incompatible with effective management.

(iii) That the Guarding Manager was a managerial position and that inclusion of that role within the bargaining unit could cause conflict and/or impartiality issues. As set out above, the Union’s position was that the Guarding Manager role was a low level managerial position and that its inclusion in the bargaining unit would not cause conflict and/or impartiality issues. The Panel considered this point very carefully. The Panel accepted the Employer’s evidence that the Guarding Manager was responsible for staff appraisals, that the Guarding Manager could undertake grievance and disciplinary investigations, and, in some instances, the Guarding Manager was the decision maker in respect of disciplinary sanctions. The Panel also accepted the Union’s submissions (which were not disputed) that the Guarding Manager did not have a role in setting salary and other important terms and conditions for the other members of the bargaining unit.

The Panel accepted the Union’s submissions that there is no general rule that employees in managerial positions cannot be within a bargaining unit with those who they manage. It is also correct to say, as pointed out by the Employer’s representative that there is no general rule that employees in managerial positions cannot be outside of the bargaining unit. Indeed, both parties were able to point to previous agreements/ decisions which supported their position.

In the course of argument, both the Employer and the Union relied on a previous agreement reached between themselves in a different location as supporting their position. This agreement concerned collective bargaining at another of the Employer’s sites (Abercrombie House). In written submissions the Union pointed to the fact that the Employer had agreed to the Guarding Manager being part of the bargaining unit at Abercrombie House and the Employer asserted that the Union had agreed that they were not part of the bargaining unit. At the hearing the Employer’s case developed. The Employer accepted that they had agreed that the Guarding Manager at Abercrombie House could form part of the bargaining unit but they asserted that the Union had accepted, that another role, the Workplace Manager role was not. The Employer asserted that the Guarding Manager role at 22 Whitehall was more similar to the Workplace Manager role at Abercrombie House because Abercrombie House was a fully operative office whereas 22 Whitehall had been ‘moth balled’. The relevance of this was that the Guarding Manager at 22 Whitehall was the most senior employee on the premises. The Employer’s representative described him as ‘their man from Del Monte’.

The Panel did not find this distinction convincing and found that the Guarding Manager at 22 Whitehall was more akin to the Guarding Manager at Abercrombie House than the Workplace Manager role. The Guarding Manager at Abercrombie House had the exact same job description as the Guarding Manager at 22 Whitehall and the Employer accepted that they would be able to carry out the same functions in terms of grievances and disciplinary matters (although the fact higher level persons were on site may mean in practice they would deal with less). Ultimately, the Panel did not find the comparisons with Abercrombie House particularly helpful as each case turns on their own facts.

The overriding test is whether their inclusion or exclusion from the bargaining unit (depending on the unit contended for) is compatible with effective management. The Panel did not find that the relatively low level managerial role carried out by the Guarding Manager was such as to mean that their inclusion in the bargaining unit would be incompatible with effective management.

(iv) The final point raised by the Employer was that if the Guarding Manager were within the bargaining unit this could cause problems/ conflict during periods of industrial action as the Guarding Manager would play a strategic role in the Employer’s response to the action including preparation for and carrying out contingency planning. The Panel did not find this a convincing argument. The ability to take part in industrial action is not linked to the inclusion or not of a particular person within the bargaining unit.

29) As set out above, the Panel were of the view that the bargaining unit requested by the Union was compatible with effective management. The Panel also considered the other matters listed in paragraph 19B(3) of the Schedule:-

(1) The views of the employer and the Union were taken into account as set out above.

(2) Existing national and local bargaining agreements were considered (in particular that at Abercrombie House) as set out above. The Panel did not find those agreements of particular use in the determination of this case.

(3) The desirability of avoiding small, fragmented bargaining units within an undertaking. The Panel did not consider that the Union’s proposed bargaining unit would create small fragmented bargaining units. The bargaining unit proposed by the Union covered all staff employed at 22 Whitehall.

(4) The characteristics of workers falling within the bargaining unit. As set out above, the Panel considered, in particular under this head, the terms and conditions of the Guarding Manager and the other employees within the bargaining unit as well as the managerial nature of the Guarding Manager role. The Panel did not consider that either of those matters were such as to make the bargaining unit incompatible with effective management.

6. Decision

30) The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union, namely: “Security personnel for Mitie at 22 Whitehall, London, SW1A 2EG. For the purposes of this definition ‘staff’ covers the following job roles (or similar titles in these areas of work): Guarding Manager, Assistant Guarding Manager ^{[footnote 3]}, Deputy Manager, Assistant Deputy Manager and Security Officer/Guard.” The location of the bargaining unit was given as “22 Whitehall, London, SW1A 2EG.”

Panel

Laura Prince K.C.

Nicholas Childs

Robert Lummis

12 September 2023

7. Appendix

Names of those who attended the hearing

For the Union

Rachel Halliday – Solicitor, Thompsons LLP

Helen Flanagan – PCS Industrial Officer

Sharon Leslie – PCS Facilities Management Industrial Officer

Kim Hendry – PCS FM Strategic Organiser

For the Employer

Mark Hamilton – Solicitor

Gillian Crew – Barrister

Diane Gardiner – Senior ER/IR Partner

Sharon O’Neill – People Business Partner

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1. In a letter dated 6 July 2023 the Union requested that the name of the Employer be corrected from Mitie Group Limited (which is not a legal entity) to Mitie Limited, which the Employer had previously accepted [in case number TUR1/1272(2022) – paragraph 9 of Decision dated 16 March 2023] is the employing entity. This amendment was permitted. ↩

2. Public and Commercial Services Union v Mitie Group PLC, Case number TUR1/1272(2022) ↩

3. These roles have subsequently been named ‘Site Security Manager’ and ‘Deputy Site Security Manager’. Both the Employer and the Union agreed that these were changes in name only and that there were no changes to either role as a result of the change in name. ↩