Decision

Acceptance Decision

Updated 11 April 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1258/2022

11 April 2022

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:

UNISON

and

Park Homes (UK) Ltd

1. Introduction

1) UNISON (the Union) submitted an application to the CAC dated 7 March 2022 that it should be recognised for collective bargaining purposes by Park Homes (UK) Ltd (the Employer) for a bargaining unit comprising “[a]ll staff working for Park Homes at Pemberton Fold Care Home (Pemberton Street, Little Hulton, Salford M38 9LR) and Heartly Green Care Home 34 Cutnook Ln, Irlam, Salford M44 6JX)”. The application was received by the CAC on 7 March 2022 and the CAC gave notice of receipt of the application to the parties that day. The Employer submitted a response to the CAC dated 11 March 2022 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 Tariq Sadiq, Panel Chair, and as Members, Mr Mustafa Faruqi and Mr Nicholas Childs. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 21 March 2022 and was extended until 1 April 2022 to enable the parties to comment on the results of a membership check and for the Panel to consider these comments before arriving at a decision. The acceptance period was further extended to 12 April 2022 to allow for the drafting of the 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 had sent a request for recognition to the Employer on 9 February 2022. The Union said that the Employer had responded on 14 February 2022 stating, “Park Homes have considered the request and have decided to reject it”. It stated that no further justification was provided.

6) The Union said that following the refusal of voluntary recognition an application was submitted to the CAC dated 7 March 2022. The Union attached a copy of the request for recognition and the Employer’s response to the request.

7) 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.

8) The Union stated that the total number of workers employed by the Employer was 430. The Union stated that there were 122 workers in the proposed bargaining unit, of whom 43 were members of the Union. It added that this provided a density of 35% and that evidence of membership could be provided to the CAC upon request for verification purposes. When asked 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 “[a] significant proportion of the proposed bargaining unit are in union membership. This has been achieved without meaningful access to the workforce.” It went on to say that “[a] majority of workers in the proposed bargaining unit have also signed a collective letter which has been sent to Park Homes which expressly states we support recognition of UNISON for collective bargaining purposes. This letter has been signed by 90 workers in the proposed bargaining unit which represents a clear majority (72%). This letter was sent to Park Homes via e mail on 31 January 2022.” A copy of the letter was attached to the Union’s application with names removed. The Union stated that it could provide them if requested.

9) The Union stated that the reason for selecting the proposed bargaining unit was that Pemberton Fold and Heartly Green were two separate and distinct workplaces within Salford. It added that both homes retained a distinct and independent workforce which did not work across homes or outside of Salford. Both homes were subject to separate local management arrangements and came under the same registered manager who also did not work outside Salford. It stated that the proposed bargaining unit was compatible with effective management and constructive industrial relations. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Union answered “No”.

10) The Union confirmed that it held a current certificate of independence. It stated that it had copied the application and supporting documents to the Employer on 7 March 2022.

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 had received the Union’s written request for recognition on 9 February 2022. When asked what its response was, the Employer said “[a]n email to decline the offer dated 14.02.22. We received the formal written request and application form from the Union and from CAC on 07.03.22. We responded to the CAC via email on 09.03.22 to challenge the authenticity of the claim, mainly, the number of staff who want Union Recognition and the validity of the application. The response from CAC on the 09.03.22 instructed us to follow the due process.”

12) The Employer confirmed that it had received a copy of the application form from the Union on 7 March 2022. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer stated that:

[a]s a privately-owned company we do not want to enter into union recognition. Park Homes does not have union recognition and has no plans to enter into one. We choose to consult with our employees direct via the employee forum and employee reps. The Union’s supplied figures on total employees, employees in the proposed bargaining unit and percentage allegedly supporting the Application are all incorrect.

The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist.

13) The Employer stated that it employed in the region of 1,250 workers. When asked if it agreed with the number of workers in the proposed bargaining unit as defined in the Union’s application it stated “[w]e note that, in the body of their application form, Unison claim that 90 workers at the two sites wish to be represented by Unison. However, the only evidence supplied is a blank transcript letter, undated and unsigned by anyone, far less 90 individual workers. We note that this is supposedly for reasons of ‘confidentiality’, although we are unaware of any clause in TULR(C)A relating to such. We are very surprised that the CAC regards this as sufficient evidence on which to issue an application. For your information, we also received a copy of that letter, with ‘signatures’ appended. We enclose this now for reference. As you note, although some names appear in different hands, most are in the same handwriting and there is a block of 33 (30% on Unison’s own figures) which are clearly the product of one hand. Clearly, this cannot be accepted as evidence and is wide open to fraud. We would require a signature, date, job description and address so that these can be checked against our actual employees at these premises.” It went on to state that the number of workers in the Union’s proposed bargaining unit were “Pemberton Fold 71 employees. Heartly Green 120 employees. Total in bargaining unit 191 employees.” The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

14) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit the Employer stated that “we wish to consult with our employees direct via our staff forum and reps. No evidence has been provided to confirm 90 people in the bargaining unit wish to be represented by Unison.” 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 said “[b]ased on visits by our HR Business Partner made to these sites within the last 2 weeks, to discuss the employee forum and reps, the overall response was very positive and not one member of staff expressed a wish for Park Homes to agree for Union Recognition. Further, based on Unison’s own (admittedly suspect) figures, there is no majority. 90 out of 191 is not a majority.”

15) The Employer answered “N/A” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and “No” when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

16) To assist in 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 and the number of workers in the unit who had signed a letter of support for the Union

17) 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 full names, date of birth and job title. 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 17 March 2022 from the Case Manager to both parties. The letter of support fell outside of this agreement as it had already been served on the Employer. As the Employer had attached a copy of the letter including the name/signatures to its formal response to the Unions application on 11 March 2022, the Panel had also had sight of it.

18) The Union’s letter of support, which was undated, was addressed to the Employer and cross copied to Salford City Council, Salford City Mayor, Lead for Adult Social Care and the Deputy to Adult Social Care. The proposition on the first page of the letter of support read as follows:

We the undersigned are raising the following issues and expect a resolution to these issues within one calendar week.

We work at Heartly Green Care Home and Pemberton Fold Care Home in the City of Salford.

Since Park Homes has taken over these two homes. we have been dismayed at the ongoing mistakes and underpayments with our pay, our contract and our pensions. You have failed to pay us our sick pay, our contractual enhancements, even the council funded top up to £9.25p/h. You have deducted pay that has already been returned, charged additional pension contributions with no explanation and ignored the requests from ourselves, admin staff and our local managers to fix the issues, and pay us what we are owed. January has marked the 3rd month that you have failed to pay the money you owe us. We demand the following Issues must be resolved - all money, missing wages, TUPE enhancements, Salford City Council agreed top-ups and sick pay has to be paid to ALL Park Homes employee’s in Safford that have any of these outstanding issues. This will be done as soon as possible and not at the end of the calendar pay window.

We expect all DOCAS payments to the union are maintained.

We expect the pension situation to be clarified and why contributions have increased.

We expect that any issues in regards to wage slips and overpayments are immediately clarified and resolved.

We expect that Park Homes review and implement an accurate and clear payroll system that provides prompt and correct payment in each pay cycle

We expect-that moving forward, you will communicate and work with UNISON in regards to local pay, local terms and conditions and we support recognition of UNISON for collective bargaining purposes.

19) The information requested from the Union was received by the CAC on 21 March 2022 and from the Employer on 17 March 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 154 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 46 names. According to the Case Manager’s report the number of members of the Union in the proposed bargaining unit was 43, a membership level of 28.10%. The spreadsheet accompanying the signed letter of support contained 86 names from within the bargaining unit, therefore the proportion of workers in the proposed bargaining unit who had signed the letter was 56.20%.

21) A report of the result of the membership and support check was circulated to the Panel and the parties on 23 March 2022 and the parties were invited to comment on the results by no later than the close of business on 25 March 2022.

6. Summary of the Employers comments following the membership check

22) In an email to the Case Manager dated 24 March 2022 the Employer stated “[b]y their own rules, the CAC cannot, by law, consider an application (36.1 (b)) unless a majority of the workers favour collective bargaining. The only ‘evidence’ is the letter open to abuse by fraud; therefore, no conclusion can be drawn on the basis of this.” It went on to state “it was not a sufficient excuse to claim that Covid had prevented them collecting individual signatures. The two checks were totally worthless. The comparison of Union members against the Employers list of workers revealed a substantial minority of union members within the bargaining unit and that a check of the worker’s listed by the union as ‘being in favour’ as revealed by the letter against the list of actual employees was not a check at all, and merely showed that the Union had used names with no provenance whatsoever, and it did nothing to alleviate the danger of fraud.” The Employer stated that unless the Union could conduct a proper exercise accurately listing those who freely expressed a wish for Union recognition, the application should go no further. It added that no competent authority could accept the list of names in only a few hands as proof of anything.

7. Summary of the Union’s comments following the membership check

23) In an email to the Case Manager dated 25 March 2022 the Union stated, “the check confirms that UNISON has 43 members within the bargaining unit, representing 28.10% density based on Park Homes’ list of workers.” It added that as this comfortably exceeded 10%, it believed that the test under 36(1)(a) had been satisfied.

24) In relation to 36(1)(b) the Union relied on the collective letter. It reiterated that the majority of names on the supporting letter had been written by unique individuals and had been secured in-person following discussions by workers with Union Staff or union members within the workplace. Owing to difficulties regarding workplace access, the number of staff on different shifts, and ongoing issues relating to the pandemic, it stated that it had not been possible or practical to speak to everyone in person and secure a physical signature. Where this had not been possible, verbal consent had been secured by a colleague or Union staff member by telephone, online or digital communication and the names had been added manually. The Union stated that the Employer had been unable to present any evidence to suggest that the majority of the workforce did not support recognition.

25) The Union went on to state “[g]iven that the CAC have verified that the names of 56.20% of employees within the bargaining unit appear on the letter, UNISON believes that this clearly indicates that the test under Schedule 36(1)(b) has been satisfied. Furthermore, considering the difficulties accessing workers – owing to not having trade union access to the workplace and ongoing health and safety issues relating to the pandemic – we believe it can be assumed that support for recognition is actually likely to be much more widespread.”

26) The Union went on to address the number of workers in the proposed bargaining unit. It stated “[a]lthough UNISON believes that the numbers for Pemberton Fold are accurate, we believe that the figures for Heartly Green, and therefore the overall bargaining unit, are vastly inflated. The latest CQC report for Pemberton Fold, published 10 March 2020, states that it can provide support for up to 60 people. Conversely, the more recent CQC report for Heartly Green, published 4 March 2021, states that the capacity at Heartly Green is 30, half that of Pemberton Fold. It therefore stands to reason that the staffing numbers for Heartly Green should be proportionally lower than Pemberton Fold. Park Homes’ own figures suggest that staffing at Heartly Green is 69% higher than at Pemberton Fold, despite the CQC suggesting it has half the capacity. UNISON is aware that an NHS Intermediate Care Facility operated out of Heartly Green until recently, however these should not be included for these purposes as staff there are directly employed by the NHS and we do not consider them part of the proposed bargaining unit. Furthermore, whilst the move of the Intermediate Care Facility may have increased potential bed-capacity, this has not yet resulted in significant staff recruitment as far as UNISON and our members employed at Heartly Green are aware. UNISON has conducted extensive discussions with our members at Heartly Green and they all contest Park Homes’ suggestion of staffing figures, believing the actual figures to be 50.”

27) The Union went on to add “Park Homes’ response of 14 March 2022 stated that there were 191 employees within the bargaining unit, however they only provided details of 153 workers for the verification check. This represents a reduction of 20% and this inconsistency undermines the credibility of Park Homes’ figures. UNISON therefore asks the CAC to seek clarity from Park Homes that all those on their staff list are directly employed by Park Homes and deployed at Pemberton Fold and Heartly Green and are eligible to fall within the bargaining unit as defined. We would also like to request a list of workers’ employment status and job role.”

8. Considerations

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

29) 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. The Panel is also satisfied, on the balance of probabilities, that the application was made in accordance with paragraph 11(2) of the Schedule. Paragraph 11(2) applies if

(a) before the end of the first period the employer fails to respond to the request, or

(b) before the end of the first period the employer informs the union … that the employer does not accept the request (without indicating a willingness to negotiate).

The first period is the period of 10 working days starting with the day after that on which the employer receives the request for recognition.

30) The Panel is also satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

9. Paragraph 36(1)(a)

31) 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 proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 16-21 above) showed that 28.10% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 18 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached 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.

10. Paragraph 36(1)(b)

32) Paragraph 36(1)(b) of the Schedule provides that, for an application to be admissible, the CAC must be satisfied 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. Whilst this is a decision the Panel must make in a relatively short timeframe, it is nonetheless a decision that it must not take lightly as once an application has satisfied the admissibility tests, if it were to fall at a subsequent hurdle, the Union could find itself barred from making a further application for the same or similar bargaining unit for a period of three years. There is therefore a built in disincentive to an over-optimistic claim from a Union’s perspective and the CAC would be doing a union a disservice should it allow an application forward without the necessary level of support, even if it is only an assessment of ‘likely’ support.

33) To underpin its claim under this paragraph the Union relies on its letter of support which, according to the Case Manager’s report, contains the names of 56.20% of the workers in the proposed bargaining unit. The Union submitted that the letter, which is set out in paragraph 18 above, explicitly called upon the Employer to recognise the Union for collective bargaining purposes stating that workers were making a clear request for trade union recognition as a means to establish effective industrial relations and collective bargaining to resolve the issues set out in the letter namely incorrect wages, non-payment of sick pay, non-payment of contractual enhancements, non-payment of enhanced rates as required by the local commissioning council and incorrect pension contributions.

34) Whilst the Employer had noted that a number of names on the letter appeared to have been written in the same hand, the Union argued that, nevertheless, the majority of names had been individually appended. The Union detailed the difficulties it had in accessing the workers within the workplace such as the various shift patterns and it explained that where it was not possible or practical to secure a physical signature, verbal consent was obtained via phone, online or digital communication and then the names were added to the letter.

35) The Employer, in its comments on the membership report, did indeed challenge the weight that should be given to the petition as evidence towards the satisfaction of this test. The way in which the names had been gathered for the letter of support, so it argued, had been wide open to abuse with the Union freely acknowledging that it had added names to it. The Employer urged the Panel to treat the letter of support as unreliable and to not draw any conclusions from it.

36) The Panel has carefully considered the submissions made by both parties. In considering the weight that should be attached to the letter of support as evidence that a majority of the workers in the proposed bargaining would be likely to support recognition of the Union, we ask ourselves whether the proposition on the letter is clear and unambiguous and whether the workers that did sign the letter were fully aware as to what they were being asked to support. The difficulty here is that the letter sets out a veritable shopping list as far as the demands that the Union is making of the Employer with the call for the Union to be recognised right at the bottom of this list, almost as an afterthought, rather than the primary driver. Whilst we would be content to reach the conclusion that the majority of the signatories were calling on the Employer to resolve the issues relating to underpayments with pay etc, it is with much less certainty that we could conclude that their interest was to support a statutory application for recognition, which is what we are tasked with here. In our view, any petition being used for purposes of the statutory provisions, should set out a proposition that is clear, concise and totally unambiguous in meaning. It should be abundantly clear to the signatories what they are being asked to support. It should also make clear that recognition is being sought in respect of pay, hours and holidays, as that is the scope of statutory recognition that the CAC can award. In this case we find that the proposition on the letter of support, in setting so many demands upon the Employer, renders it impossible to say with any conviction as to whether the signatories were signing the letter because they supported recognition of the Union rather than supporting any of the other demands therein.

37) The Employer also expressed concern that the process of gathering names on the Union’s letter of support was open to abuse in that it was clear that there were multiple names that had been added in the same hand. The Union explained that this was where workers had indicated support but had been unable to sign the letter themselves and so had authorised the Union or a colleague to append their name on their behalf. Whilst the Panel finds some sympathy with the Union’s predicament in gathering signatures over the past year or so, it must remember that for the petition to be taken as truly representative of an individual’s views, then it should be signed by that individual. If, in exceptional circumstances, an individual, cannot sign the petition or letter of support themselves, then at the very least, some other form of evidence should be provided to show that the worker did indeed endorse the relevant proposition. To do otherwise is to risk undermining any confidence in the value of a petition as part of this process.

38) For the reasons given above, we find that there is insufficient evidence to persuade the Panel that a majority of 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. In the absence of such evidence the Panel must conclude that the statutory test has not been met.

11. Decision

39) The Panel’s decision is that the application is not accepted by the CAC.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Mustafa Faruqi

Mr Nicholas Childs

11 April 2022