Decision

Access Decision

Updated 2 December 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1405(2024)

2 December 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON ACCESS ARRANGEMENTS FOR BALLOT

The Parties:

RMT

and

TransPennine Trains Ltd

1. Introduction

1)         RMT (the Union) submitted an application to the CAC on 3 May 2024 that it should be recognised for collective bargaining by TransPennine Trains Ltd (the Employer) for a bargaining unit comprising the “Service Delivery Support Managers”.  The CAC gave both parties notice of receipt of the application on 3 May 2024.  The Employer submitted a response to the CAC dated 10 May 2024 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 Ms Laura Prince K.C., Panel Chair, and, as Members, Mr. Rob Lummis, and Mr Paul Moloney.  The Case Manager appointed to support the Panel was Kaniza Bibi, and for the purposes of this decision Joanne Curtis.

3)         By a decision dated 28 May 2024 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. On 12 August 2024 the parties agreed that the appropriate bargaining unit was that proposed in the Union’s original application namely “Service Delivery Support Managers,” located at Manchester Piccadilly Station, Manchester Victoria Station, and York Station.

4)         On 19 August 2024 the Union informed the CAC that it claimed to have a majority of members in the agreed bargaining unit. On 16 September 2024, the Panel, not being satisfied that a majority of the workers constituting the bargaining unit were members of the Union, gave notice in accordance with paragraph 23(2) of the Schedule that it intended to arrange for the holding of  a secret ballot in which the workers constituting the bargaining unit would be asked whether they wanted the Union to conduct collective bargaining on their behalf. The parties were advised that the Panel would wait until the end of the notification period,^{[footnote 1]} as specified in paragraphs 24(2) to (7) of the Schedule, before arranging for the holding of a ballot. The parties were also asked for their views on the form the ballot should take and were notified that it was important for the parties to agree access arrangements at the earliest possible opportunity as the Panel considered that it should ensure these arrangements were in place before initiating the ballot process.

5)         The notification period described in the preceding paragraph elapsed without the Union, or the Union and the Employer jointly, informing the CAC that a ballot was not required.

6)       In a letter to the CAC Manager dated 23 September 2024 the Union stated that it would prefer a postal ballot. In a letter to the Case Manager dated 23 September 2024 the Employer also confirmed that it would prefer a postal ballot.

7)         The Union, by an email dated 16 October 2024, informed the CAC that access could not be agreed between the parties and asked that access be determined by the CAC to which the Employer agreed. Paragraph 22 of the Code of Practice on Access to Workers During Recognition and Derecognition Ballots (the Access Code) envisages that where the parties fail to reach an agreement on access, the CAC may be asked to assist. In this particular case the parties have been unable to come to an agreement as to whether the access meetings should be in person or virtual and have asked that the CAC determine the matter. A hearing took place via the zoom platform on 26 November 2024. The names of those who attended the hearing are appended to this decision. It was noted that as the qualified independent person had not yet been appointed, under Paragraph 25 of the Schedule, the CAC did not currently have the power to make an order in respect of access. However, the Panel could proceed if both parties indicated that they wished the CAC to adjudicate on access and confirmed that they would observe the provisions of an adjudication by the CAC on this matter. Both parties confirmed this. The Panel was grateful to both parties for the clear and concise manner in which they presented their submissions.

2. Union’s Submissions

8)         In an e mail from the Union dated 8 October 2024 to the Employer the Union said “I can confirm with you that I will be looking for access to all currently employed SDSM’s in the same way as you met with them to discuss the RMT application for statutory recognition prior to any decision being taken to hold a postal ballot that consequently resulted in 2 RMT members resigning membership and others emailing directly the CAC case manager expressing their wishes not to be recognised by my trade union. I would now be grateful if you could provide me dates and venues to meet with all 10 of the SDSM’s currently employed by TPT so I can explain the benefits of RMT recognition and be afforded the same opportunity as you had when you coerced our members into not supporting our application for statutory recognition.”

9)         In the Union’s written statement dated 6 November 2024 it stated that it sought to gain access “to the affected SDSM grades through the means of arranged face to face workplace meetings and communication via royal mail inviting their attendance to such meetings.” The Union went on to say that the Employer had already had workplace face to face meetings with the SDSM grades employed in Manchester and York stations on 12 and 15 July 2024 respectively. The Union said “in respect of these workplace meetings, it’s the RMT’s view that Mr Craig Keating acted in a way that coerced some RMT members into resigning RMT membership due to employer pressure being exerted on these workers when discussing their negative approach to RMT workplace recognition. He even went the extra mile of providing a form of words and contact details of the CAC for SDSM RMT members to express their concerns directly with the CAC case manager. This we find as a trade union totally unacceptable and outside of the spirit of maintaining good industrial relations throughout the application process. In brief the RMT formally requests that our organisation can be afforded the same opportunity as the employer to speak with SDSM grades face to face to highlight the benefits of collective bargaining. We respectfully request that two one-hour meetings can be arranged at York and Manchester to address these employees/ RMT members and respond to any questions they may have in relation to our statutory recognition application.”

10)       During the course of the hearing the Union explained that its request was simple and clear in that it wanted the same opportunity to speak to the workers that the Employer had already had face to face. The Union said that the purpose of the face to face meetings would be to explain the benefits of trade union recognition and what it means in practice. The Union said that it did not matter if this was done at one meeting with all workers present or several meetings. The Union said that it no longer used virtual meetings and instead met with groups of workers who felt less intimidated knowing that there was no one else in the room. The Union explained that the two meetings that the Employer had with the workers were not instigated because of exceptional circumstances but were, in fact, an attempt by managers to encourage workers to write to the CAC expressing their views on recognition using a form of words put together by the manager.

3. Employer’s Submissions

11)       The Employer explained that the bargaining unit included 10 Service Delivery Support Managers (SDSM’s) split across three locations: Manchester Piccadilly Station, Manchester Victoria Station, and York Station. Out of the 10 SDSM’s, 5 were based in Manchester and 5 based in York. The Employer said that the SDSM’s work two shift patterns: earlies (04.05-14.35) and lates (14.25-00.55). The Employer said that the SDSM role focused on the real-time operational delivery of TransPennine Trains Ltd’s (TPE) services. The Employer went on to say “SDSM’s work closely with local Train Crew Management, Train Crew, Station colleagues and other stakeholders to ensure TPE delivers the daily service plan. The role is reactive and SDSM’s work closely with the Control and Resources teams during periods of disruption to assist in service recovery. SDSM’s work both at a desk and at the station as they are expected to conduct fitness for duty checks, act as a chain of care for traincrew and provide a visible presence for other stakeholders.”

12)       The Employer said that it had made several attempts to agree access with the Union, however this had been unsuccessful. The Union said that in an email dated 27 September 2024, Craig Keating Employee Relations Manager at TPE encouraged the Union to share their access proposals. In the email the Employer said “as noted in our representations regarding the format of the ballot, the bargaining unit are split across three workplaces, with various shift patterns. As such, there is no ability for all employees to attend one location at a specified time. Any access proposals put forward by the RMT should take this into consideration”. The Employer said that the Union responded on 8 October 2024 stating it would be “looking for access to all currently employed SDSM’s in the same way as you met with them to discuss the RMT application for statutory recognition” and further that “dates and venues to meet with all 10 of the SDSM’s currently employed by TPE” should be provided to the Union. The Employer said that it responded on 11 October 2024 stating “to facilitate access to all SDSM’s, we propose that the RMT are granted virtual access so that colleagues are able to dial-in to a virtual meeting. We would propose that the RMT arrange three 30-minute virtual sessions to accommodate the shift patterns. TPE would commit to releasing SDSM’s from duties during one of these sessions to enable them to attend if they so wish. This would allow colleagues from all sites to attend an RMT session and have the benefit of attending with colleagues across the bargaining unit. In addition to these virtual sessions, the RMT would also be able to circulate materials via the independent person to distribute information to employee home addresses via the postal services”.

13)       The Employer said that this position was refused by the Union and that the Union confirmed to the CAC on 16 October 2024 that it wished to meet with the workers at the various locations face to face “in the same way as Mr Keating met with the SDSMs in Manchester on 12 July 2024 and in York on 15 July 2024 following the statutory recognition request.” The Employer said that these team meetings were arranged to discuss wider changes within the teams, for example changes to reporting lines and vacancies and that it is not normal to have regular team meetings. The Employer added that communication is ordinarily sent via e-mails or is communicated on an individual basis between the line manager and the individual SDSM. The Employer re iterated that the two meetings arranged in July 2024 were ad-hoc and primarily to discuss wider structural changes as opposed to trade union recognition. The Employer said “during these meetings, all 5 colleagues attended from Manchester and whilst some employees were not scheduled to be working, they chose to attend the meeting during their day off. 3 colleagues attended from York and the 2 remaining colleagues were on annual leave or sick leave. The SDSM role was created from 03 December 2023. Since the creation of the role, there have been no occasions where all 10 SDSMs have been released from duty at the same time due to the significant impact this would have on operations. SDSMs perform a critical role in maintaining TPE’s service and it is extremely important that SDSMs are available to support disruption and other stakeholders and crew. For service and safety reasons, a minimum of 1 SDSM must be actively on-duty across York and Manchester during each shift. Recently, at both York and Manchester, TPE have struggled with staff shortages. This has on occasion led to the requirement to cover the SDSM role with reduced hours. As there are only 10 SDSMs and they are a small team across the three locations, it is an ongoing operational challenge to manage absences and leave.”

14)       The Employer went on to say that “whilst SDSMs at both Manchester and York are helpful in working together to maximise cover available for shortages, including rest day working and overtime, releasing all SDSMs at once would considerably reduce TPE’s operational resilience which could create significant disruptions to the customer service. In short, if all 10 SDSMs are released at the same time, there will no cover for their absence and services will be impacted. Whilst releasing Manchester/York separately would lessen the impact, as colleagues work shift patterns, there would be no defined period where all colleagues in Manchester/York could attend a meeting in-person during working time. As such, if the CAC enforce in-person access, this would practically result in multiple meetings being scheduled in person across Manchester and York. This will inevitably result in very small group, or 1-1 meetings between colleagues and the RMT. This is likely to compromise the confidentiality of individuals as TPE will be required to disclose the shift patterns of all 10 SDSMs. Whilst the names of individuals will not be disclosed to the RMT directly, the RMT are likely to be able to establish who is due to attend particular meetings due to the existing knowledge amongst representatives. Not only does this go against the spirit of the Code of Practice which requires the employer not to disclose details of individuals to the union, but it would also be a breach of the Data Protection Act 2018. The information that the employer would be required to provide to the union to facilitate access will result in them being able to identify the individuals they would have the opportunity to meet with on a small group or 1:1 basis”. (and, in addition, this is likely to place significant pressure on employees to attend the meetings which is not in line with the Code of Practice.” The Employer referred to paragraph 61 of the code and said “the employer or the union must take particular care when handling one-to-one meetings or encounters with small groups, because a worker may feel more vulnerable in those situations and undue influence may arise if a worker feels threatened as a result. Workers should not normally be required to attend small meetings organised by either the employer or the union for campaigning purposes, and they should not be threatened with sanctions if they fail to attend. Workers who voluntarily attend should be informed that they are under no obligation to answer any direct questions which are put to them. In particular, they should not be required to disclose the way they have voted or their voting intentions”.

15)       The Employer said that at least six workers (the majority of the bargaining unit) had written to the CAC directly to confirm they did not support the application for recognition. The Employer said that it believed that small group, or 1-1 meetings in-person could exert unnecessary pressure on workers to attend the Union meetings, even if they did not wish to do so. The Employer said that it fully understood and intended to comply with its duty to provide reasonable access during the ballot period as detailed in the Code of Practice. “However, granting in-person access would not only compromise the operational service but is likely to remove the confidentiality of individuals which could result in them being pressured to attend a meeting, removing their free choice.” The Employer said it proposed that the Union be granted virtual access so that the workers were able to dial-in to a virtual meeting, should they so wish. The Employer said that it had proposed that the Union arrange three 30-minute virtual sessions to accommodate the shift patterns across the three locations. The Employer said that it would commit to releasing SDSM’s from duties during one of these sessions to enable them to attend if they so wished. The Employer explained that this would allow workers from all sites to attend a Union session and have the benefit of attending with other workers across the bargaining unit (whereas in-person access would only allow them to attend with workers based at the same location).

16)       The Employer said that virtual meetings were not a new concept for the Union and that the Union had already used these for recruitment, marketing and online webinars for members in lieu of face to face meetings. The Employer said that this demonstrated that the Union had the means to arrange virtual meetings. The Employer went on to say “if virtual meetings are agreed with the RMT, the Company have agreed to make staff aware of the dial-in details so that they can access the virtual meetings. In addition to these virtual sessions, the RMT would also be able to circulate materials via the independent person to distribute information to employee home addresses via the postal services. TPE also agree for the RMT to post information on the notice boards already in the Mess Rooms at Manchester Piccadilly and York. TPE’s proposal ensures that all employees within the bargaining unit are provided with an opportunity to attend meetings with the RMT, whilst also providing them with anonymity and the free choice not to attend. This proposal of virtual access is not an attempt to block in-person access from site but rather, focus on the confidentiality and well-being of employees.” The Employer re iterated that there was no requirement for in-person access in the Code of Practice and that virtual access had the added benefit of allowing workers to join outside of working time if they preferred. The Employer added that it also allowed workers to attend online together from both locations and across the whole of the bargaining unit.

17)       The Employer concluded by saying “as an aside, any members who resigned their membership with the RMT or wrote to the CAC did so on a voluntary basis. No coercion took place, we simply provided our employees with factual information to enable them to make their own decisions.” The Employer said that it was not its intention to hinder or restrict Union access to the workers and that it intended to comply with its duty of reasonable access. The Employer said its proposal was aimed at maintaining the service, minimising disruption and ensuring that the individual choices of the workers were respected regarding whether they wished to attend the meetings.

4. The Panel’s Decision on Access arrangements

18)      The Panel have decided that the Union’s access meetings should be held face to face. The Panel suggests that there be one 1-hour meeting in York and one 1-hour meeting in Manchester with the ability to have a mop up session online for those who could not attend (or did not want to attend the face-to-face meetings. The Panel discussed the operational issues raised by the Employer. However, the Panel were not persuaded by the Employer’s submissions in this respect. The Panel notes, in particular that: -

(1) Many of the Employer’s objections related to having to release all 10 SDSM’s at the same time.  This was not what the Union had asked for and is not what the CAC has found to be reasonable. The key issue between the parties was whether the meetings would be in person or online. The Panel was not persuaded by the Employer’s arguments as to the need for the meeting to be online.

(2) The Panel noted that the Employer was able to hold two in person meetings with the SDSM’s on 12 July 2024 and 15 July 2024 respectively without the operational issues raised in their submissions having occurred. There is a dispute between the parties as to the main purpose of these meetings (exceptional operational matters or the trade union recognition application). Whatever the main purpose of the meetings may have been it is clear that the Employer discussed the application for recognition with those employees who attended face to face during those meetings and the Panel considers it fair that the Union has the same opportunity.

(3) With regard to the issues concerning the risk of identification given the small numbers of employees involved, the CAC noted that these risks arose whichever form of meeting took place given that there were only 10 employees in the bargaining unit and the Employer’s own suggestion was dividing the employees into three separate groups (i.e. groups of 3 or 4).

19)      The Panel therefore believes that such constraints would apply in all circumstances and that they can be managed effectively. It is the responsibility of the parties to engage and agree the necessary arrangements to put this decision into effect.

Panel

Ms Laura Prince K.C., Panel Chair

Mr Rob Lummis

Mr Paul Moloney

2 December 2024

5. Appendix

Names of those who attended the hearing:

For the Union

Steve Shaw -RMT Regional Organiser

Peter March -RMT Representative

For the Employer

Leonie Mcquaide – Solicitor at Eversheds Sutherland  

Craig Keating - Employee Relations Manager

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1. The “notification period”, in relation to notification by the union, is the period of 10 working days starting with the day on which the union receives the CAC’s notice under paragraph 23(2) or such longer period as the CAC may specify; in relation to notification by the unions and the employer, the period of 10 working days starting with the day on which the last of the parties receives the CAC’s notice or such longer period as the CAC may specify: paragraph 24(5),(6). ↩