Decision

Acceptance Decision

Updated 10 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1256(2022)

09 May 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:

Unite the Union

And

Financial Conduct Authority

1. Introduction

1) Unite the Union (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 3 March 2022 that it should be recognised for collective bargaining purposes by Financial Conduct Authority (the Employer) in respect of a bargaining unit comprising “All staff employed by the FCA under the grade of Head of Department.” The location of the bargaining unit was given as “Quayside House, 127 Fountainbridge, Edinburgh, Midlothian, EH3 9QG.” The application was received by the CAC on 17 December 2021 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 4 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 Chairman established a Panel to deal with the case. The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Mr David Coats and Mr William O’Shaughnessy. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 17 March 2022. The acceptance period was extended on two further occasions in order to allow time for a membership check and a revised check to take place, for the parties to comment on the subsequent reports and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 11 May 2022.

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 made two requests for recognition to the Employer. The second request letter was sent to the Employer on 3 November 2021. The Union explained that the Employer had declined its offer to enter voluntary discussions concerning recognition and explained that it would await the Union’s formal request for recognition to the CAC. A copy of the Union’s request was attached to its application.

6) 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 the Union said that no such application had been made. 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.

7) The Union stated that the total number of workers employed by the Employer was 4000, although this figure had been taken from the company’s website and it believed that “hundreds of staff had left in recent times.” The Union said that there were 3900 workers in the proposed bargaining unit, of whom 600 were members of the Union. 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 said that since Covid employees of the company had been working from home and therefore the Union had been unable to hold any face-to-face meetings with them. Furthermore, the Employer had declined to give the Union access to staff and barred the use of any of the organisations internal communications mechanisms to discuss union membership. The Union maintained that despite this, it had an online petition signed by 1473 employees in support of union recognition.

8) When asked for its reasons for selecting its proposed bargaining unit, the Union explained that although some Heads of Department were members of Unite it was aware that some were in another union who, the Union believed, had previously been seeking to organise. Those employees who were above Head of department, were those whom the Union would expect to negotiate with and therefore it would be a conflict of interest for them to form part of the bargaining unit, though they would have the right to be members of Unite if they wished. The Union confirmed that the bargaining unit had not been agreed with the Employer.

9) The Union confirmed that it held a current certificate of independence. However, the Union had not confirmed the date on which it had copied its application and supporting documents to the Employer.

10) Finally, the Union said there had not been a previous application in respect of this or a similar bargaining unit, nor was there an existing recognition agreement that covered any of the workers in the agreed bargaining unit.

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 two written requests for recognition from the Union. The first was from the Assistant General Secretary of Unite on 20 January 2021, and the the second was from the General Secretary of Unite on 3 November 2021. In respect of the first request, the Union was informed that that the existing Staff Consultative Committee (SCC) was a consultation body that was correctly constituted and well positioned to fulfil the vital role of liaising with all employees, representing their collective voice. The Employer said that it was therefore adequately provisioned for employee representation and consultation and declined the Union’s request at that time.

12) The Employer explained that with regard to the second request received from the Union, it had responded by letter of 16 November 2021. In this letter the Employer explained that like all UK employees, colleagues at the FCA could choose whether to join a union and how they wished to be represented. To the best of its knowledge the majority of FCA employees were not members of the union, although the statutory recognition process would allow for independent validation and an independent ballot, subject to the appropriate thresholds being met, which would provide a fair assessment of colleagues’ opinions on collective bargaining. The Employer consequently declined the Union’s request, stating that it would proceed with whatever type of representation colleagues preferred. A copy of the Employer’s letters 3 August 2021 and 16 November 2021 were attached to its response.

13) The Employer stated that it had not received a copy of the Union’s latest application form directly from the Union. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Union, nor did it agree with the proposed bargaining unit. The Employer explained that the proposed bargaining unit comprised the vast majority of its current workers (approximately 3818 out of 4013 workers) and covered all employees below the Head of Department grade. The Employer believed that the Union would be the sole voice for all employees in the proposed bargaining unit whether they were members of the union or not, and it did not know whether the Union would be prepared to work alongside any other staff representative or consultative body on matters such as pay, hours and holidays. The Employer further explained that it was a complex organisation with an extremely diverse workforce in London and Edinburgh, with a presence also in Belfast and Cardiff and a soon to be established office in Leeds. The Employer’s operations comprised a wide range of functions with many different job categories skill sets and levels of seniority and responsibility. Furthermore many of its employees were members of their own professional bodies including qualified lawyers, accountants, auditors, actuaries, financial analysts, technologists and other similar professionals. The Employer said that it also had many valued colleagues operating in support and administrative roles as well of colleagues working in the FCA supervision hub including its contact centres and customer service departments, together with a significant and growing cohort of graduates and apprentices. The Union’s proposed bargaining unit would encompass all of those different functions and roles. The Employer believed that this was unworkable on both a practical or operational level.

14) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas be requested to assist. The Employer explained that it had received an email from Acas on 1 February 2022 regarding an indicative ballot for industrial action by Unite. The Employer responded on 7 February and explained that it had engaged with the SCC over a 12-week period in a wide-ranging consultation on its new employee proposal. During this time all employees were encouraged to participate in the consultation process, and this included all members of trade unions too. In addition, in March 2022, it would communicate the proposals and continually evaluate employee feedback, in an environment of constructive employee engagement. The Employer said that it was unaware of an approach or offer of assistance from Acas on the specific issue of a request for recognition from a trade union.

15) The Employer did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application, the Employer said the number was approximately 3818 individual workers. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit but there was however an established SCC with which it regularly engaged, and this provided an appropriate vehicle for staff representation and engagement on a wide range of issues.

16) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it had no evidence to either support or dispute the Union’s assertion that 600 employees were members of union, other than to note that this was a precisely round figure. The Employer therefore considered it appropriate and necessary for the CAC to conduct a membership check in order to determine whether the 10% test was satisfied.

17) 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 that the majority of the workers in the proposed bargaining unit were not members of the Union. The SCC had proved more recently to be an engaged and appropriate consultation body e.g. a staff survey with over 1800 responses. There were also employees who had voiced that they did not wish to be represented by a trade union, or this particular trade union, and would be pleased to maintain existing arrangements for representation (collective and individual) and some had expressly stated that they would be extremely unhappy if alternative arrangements were imposed on them. The Employer believed some employees would want it to consider recognition of other trade unions to allow a meaningful choice in the way that they were represented if a trade union was to be recognised.

18) The Employer referred to the Union’s petition and said that it wished to challenge its accuracy and reliability for the following reasons;

i. Most of the signatures on the online petition chose for their names to be anonymised but some of the names on the petition that chose not to be anonymised were clearly false e.g. multiple signatures by Mickey M and separately a signature “bot”. Reports in the media had noted that journalists may have signed the petition to test whether it would be limited to employees only. The Union had not provided any explanation of any verification that had undertaken to address these issues.

ii. It was aware of employee details being included as a signatory without relevant colleagues’ consent or prior knowledge.

iii. The preamble to the petition contained a number of inaccuracies. For example, a claim that three out of four staff would see their pay cut by 10%.

iv. The petition was launched in the second week of October 2021 with a deadline of December 2021, though the Employer believed that it remained open until the end of February 2022.

v. It was not clear whether a collective agreement would work alongside any other staff representative body, such as the SCC.

vi. There was no facility for any staff member to withdraw their signature if they had changed their mind.

19) The Employer stated that it wished to draw the CAC’s attention to the fact that the Union had various opportunities to engage directly with employees in order to obtain support for recognition. There was an active FCA branch with widespread media reporting of the Union’s interest in the organisation, a matter which it considered the vast majority of colleagues would be aware of. The FCA had also published on its staff intranet, and its external website, the FCA’s response to the voluntary recognition request dated 16 November 2021 as well as the information concerning the statutory process, to ensure full transparency to all staff.

20) The Employer stated that following leafleting outside the Stratford office, the Union recently convened an online town hall meeting on 17 February 2022 for all employees at which, the Employer believed, around 30 colleagues attended. There had also been a steady return to the office as the pandemic restrictions eased, including a mandatory return to the office for a defined percentage of working time for a period at the start of December and then again since mid-February. The Union had been active in leafletting and engaging with colleagues in person outside the FCA’s London premises, a matter also reported by the media.

21) The Employer said that the Union’s allegation that it had declined to give the Union access to staff was misleading. The Employer explained that as a regulator handling sensitive information, its internal communication systems were controlled, and it was not permissible for third party organisations to have access to internal email intranet or systems. This was not a measure that was applied arbitrarily to the Union.

22) Further, there was an active and engaged workforce and there had been discussion of union recognition for collective bargaining on various internal blog posts on the staff intranet over recent months all of which were accessible to all staff.

23) It was the Employers view that notwithstanding this degree of access to the workforce and associated publicity by the Union in order to gather support for the proposed recognition, even if the petition was an accurate one, which was disputed for reasons above, the level of support as claimed by the Union did not provide compelling and cogent evidence of majority support for the recognition of the Union.

24) When asked both whether it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit, and whether it had received any other applications in respect of workers in the proposed bargaining unit, the Employer answered “N/A”.

5. Further Comments from the parties

25) On 15 March 2022 the CAC copied the Employer’s response to the application to the Union and invited its comments. By e-mail dated 16 March 2022 the Union explained that it had served a copy of its application on the Employer by e-mail dated 3 March. A copy of which the Union had provided to the CAC.

26) In its further comments, the Union maintained that the Employer had failed to acknowledge how strongly the Unite branch had been inhibited from organising and recruiting members and said that it disputed the Employer’s comment that “the union has had various opportunities to engage directly with FCA employees in order to obtain support for recognition”. The Union asserted that it could not accept this as an accurate statement and explained that for obvious reasons related to Covid, the vast majority of staff had been working from home since March 2020 (with the exception of a few days early December 2021). This policy only ended on 14 February 2022, and workers continued to be entitled to work from home for 60% of the time (80% until 28 February 2022 and for people in the Edinburgh office).

27) Furthermore, the FCA had not permitted union activity to be conducted on its electronic systems or on its premises. This included the following:

i. The Employer had refused to allow its electronic systems to be used for promoting the Union. The reasons given for this had varied and included the explanation that there was a general policy that staff should not promote any external body (including even charities, although these have been promoted in the past); that senior managers did not want to give the impression of endorsing the Union; and that it was unfair to subject employees to information which they may disagree with. The Union did not accept that a trade union was analogous to other external bodies. In practice, some individual Unite members had mentioned the Union on FCA systems on their own initiative, but this had not been done by the branch as a whole.

ii. The Employer mention of “discussion of union recognition… on various internal blog posts on the staff intranet” was a reference to blog posts which addressed, in carefully worded terms, the subject of trade unionism. The authors of those posts did not openly advocate for unionisation at the FCA, because they felt inhibited by the FCA’s stance. (Some comments on the posts may have been less inhibited.) One recent post made by a branch officer on 15 March 2022 was removed because it openly advocated the Union’s stance on an ongoing industrial dispute.

iii. At least one member of staff who sought to make a union-related comment in a virtual meeting had been asked to state their name even though other staff making non-union-related comments were allowed to remain anonymous.

iv. In response to the Employer’s claim that the Union had been leafletting outside the London office. The reason for this was that the Union could not do this within the office. When a Unite member left leaflets around the office on 16-17 February 2022 (an action not endorsed by the branch), instructions were given to building staff to remove them.

28) The Union further stated that despite these issues, it was notable that Unite had still managed to obtain as many as 1473 signatures on its petition. This was the “net” figure, with spurious entries (e.g. “Mickey Mouse”) removed. The original figure of 2400 as referred to by the Employer was the “gross” figure.

29) The Union explained that following its application to the CAC, the union branch was permitted to advertise a meeting on 10 March 2022 using the Employer’s intranet (this was distinct from the meeting of 17 February 2022, which the Employer had mentioned and inaccurately described as a “meeting… for all FCA employees”). The Union said that this was “a one-off permission” and it did not know whether it would be granted again.

30) In response to the Employers comments concerning the SCC, the Union said that it was expected that the Employer would prefer to deal with the SCC because it was a management-controlled body that had no mandate to negotiate and no legal protections (including in relation to industrial action).

31) The Union said that although it could not speak for the SCC, it was aware that the SCC’s position was that it was neutral and neither supported or opposed union recognition. It was reported in the media that the SCC had reported high levels of disquiet amongst staff concerning relations with management, for example “Half of FCA staff considering quitting over pay proposals”, Citywire, 21 January 2022.

32) The Union believed that a key fact was that staff had not been asked whether they wanted the SCC to represent them. Conversely, the Employer had refused not only to recognise Unite but even to ask staff whether they wanted recognition for Unite.

33) The Union contested Employer’s comment that the proposed bargaining unit was not “workable on a practical or operational level” because one body like Unite could not encompass “all [the] different functions and roles” within the organisation on the basis that this that could not be the case, as the SCC could not function as a single body if it were.

34) The Union stated that in response to the Employer’s claim that there were currently 4014 workers, based on its members’ personal knowledge of the Employer’s operations, it had reservations concerning the accuracy of this figure. The Employer had also claimed that the rate at which workers were leaving the organisation was “in line with the years before the pandemic”. The Union questioned what was meant by the term “in line with”, and what periods in respect of the current position and the “years before the pandemic”, were being referred to. Finally, the Union said that the Employer had not provided statistics for its workforce and staff turnover to allow the position to be verified.

35) The Employer, during a telephone conversation with the Case Manager on 16 March 2022, clarified that it had received a copy of the Union’s application form from the Union on 3 March 2022.

6. The membership and support check

36) To assist 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 agreed 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 independent checks of the level of union membership within the bargaining unit and the number of workers in the unit who had signed an e-petition supporting recognition of the Union. 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 their full names and dates of birth and the results of an e-petition in support of recognition. 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 information requested from the Union was received by the CAC on 25 March 2022 and from Employer on 28 March 2022

37) The list supplied by the Employer contained the names of 3980 workers and the list supplied by the Union contained the names of 633 members. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 604, a membership level of 15.18%.

38) The Union also provided the results of an e-petition in the form of a spreadsheet which consisted of 4 columns headed, “Full Name”, “E-mail”, “Job Title”, and “Postcode”. The Union explained that the link to the online petition was shared informally amongst colleagues and members at the FCA and that when accessing the link employees were asked to complete the following fields:

• Full Name

• Email

• Job Title

• Postcode

• Hide my name

• Tick here to confirm you agree to Unite the Union using the details you have provided to share with the Central Arbitration Committee or ACAS only, who may use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues.

The Union confirmed that the petition was opened on 11 October 2021 and closed on 12 February 2022.

39) The check of the reults of the e-petition showed that it had been signed by 1242 workers in the proposed bargaining unit, a figure which represents 31.21% of the proposed bargaining unit. Of the 1242 signatories, 451 were members of the Union (11.33% of the bargaining unit) and 791 were non-members (19.87% of the bargaining unit).

40) At the time of the check the Employer also submitted evidence in the form of an e-mail from a worker who said that they were informed by a colleague that they had signed the petition when they had not. This worker’s name was checked against the lists provided and it appeared on both the Employer’s list of workers and the Union’s petition.

41) A report of the result of the checks was circulated to the Panel and the parties on 7 April 2022 and the parties’ comments invited. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Summary of the parties’ comments following the membership and support check

42) In a letter to the CAC dated 14 April 2022 the Union stated that it wished to rely on its earlier detailed response that outlined the problems that the Union had encountered in seeking to organise at the FCA, notably that staff had been working from home, it had not been able to use the internal communications facilities of the Employer and it had been unable to organise physical meetings therefor had not had the abilty to organise as it would ordinarly do. The Union had carried out one-to-one discussions and virtual meetings. The online petition was discussed during those meetings, but non-members were only made aware by public references in Unite’s press releases.

43) The Union said that at the commencement of the organising campaign in mid-2021, there were approximately 100 paying members, most of whom had been with a previous employer prior to creation of the FCA. There were now over 600 paying members in the London and Edinburgh offices and membership continued to grow. Despite the considerable communications restrictions, a substantial number of non-members had signed the online petition. It was the Union’s view that were the Union to be entitled to communicate with the staff prior to a vote, then it would achieve the threshold necessary to achieve recognition.

44) The Union said that it would be helpful to receive confirmation that that Employer had provided the names of only those workers who were in the London and Edinburgh offices where it had members.

45) The Union explained that it had made a considerable effort to ensure that its petition was accurate. There were a number of duplicate signatures that were removed from the list – most of the duplicates appeared to have been the result of individual’s confusion as to whether they had signed. There were a number of obvious false names e.g., Mick Mouse which were also removed, and an exercise was then carried out to ensure that those names that remained were employees of the FCA. The Union was not made aware by any individual or FCA staff member that an individuals’ name was on the petition when they had not signed it. If the Union had been made aware, the name would have been removed from the list supplied to the CAC.

46) Finally, the Union said that there were a number of individuals who were members of Unite, who had recently left the organisation. The Union believed that since June 2021 “around 350 had left the employ of the FCA.”

47) In a letter to the CAC dated 14 April 2022 the Employer stated that it accepted that the Union had met the first test as the 10% threshold had been met. With regard to the second test, the Employer said that in light of the analysis in the report it did not believe that the Union had demonstrated that a majority of the workers in the proposed bargaining unit would be likely to favour recognition and, in any event, it continued doubt and dispute the accuracy of the Union’s petition evidence.

48) It was the Employer’s view that even if it were the case that the signatories to the petition were genuine, which it did not accept, the analysis within the report did not begin to establish a likelihood of majority support. The percentage of union members favouring recognition was 451 out of 604 members which amounted to 74.67%. The Employer therefore considered that support for recognition even amongst union members did not appear universal.

49) The level of support amongst non-members indicated by the evidence was significantly less and amounted to only 791 of the 3376 workers within the proposed bargaining unit who were not members of the Union, which equated to only 23.43% of the non-union members who favoured recognition. For a majority of those non-union members to favour recognition an additional 897 workers from the proposed bargaining unit would also have to favour recognition. This was a significant number.

50) Furthermore, the report showed that from an analysis of the petition, the total number of workers within the bargaining unit who favoured recognition was only 31.21%. The Employer argued that this figure fell short of majority support and that for there to be majority support an additional 788 workers (19.79%) would be required, which again was a significant number of additional workers.

51) The Employer believed that as to the likelihood of majority support the percentage of 31.21% also fell short of the degree of evidential support for recognition which had previously been seen by the CAC in a number of cases to be sufficient evidence for the purposes paragraph 36 of the Schedule, namely, evidence which showed that in the region of 40 – 45 percent of the bargaining unit favoured recognition. As evidence to support this point the Employer cited the following cases; GWU & DHL Aviation (UK) (TUR1/15/2000), decision dated April 2001; Amicus & Ford Motor Company Ltd (TUR1/447/2005), decision dated 6 May 2005; URTU & Corby Chilled Distribution Ltd (TUR1/165/2002); USDAW & Pearsalls Ltd (TUR1/934/2015), decision dated 12 October 2015.

52) The Employer stated that the report confirmed that the petition was opened on October 2021 and closed on 12 February 2022. The Employer emphasised that was a lengthy period (four full months) during which workers could express their support for recognition. Similarly, this was a lengthy period during which the Union could have campaigned for support and publicised their intended application. However, even after four months the level of support had only reached 31.21%.

53) The Employer maintained that to even reach 40% in the current case, would require a further 350 workers to favour recognition which was a significant number of further workers. The Employer referred to its previous submissions and those of the Union on the issues on access to the workforce and related matters. It was the Employer’s view that the Union had therefore failed, even taking the evidence that it had put forward at its very highest, to establish that a majority of the workers are likely to be able recognise

54) The Employer further added that in its previous response to the Union’s comments it had raised a number of significant concerns as to the accuracy of the petition evidence. The Employer said that while it did not wish to repeat those submissions, it wished to emphasis that those submissions were strengthened by the additional analysis conducted by the CAC and as set out in the report.

8. Considerations

55) 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.

56) 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 and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule.

9. Paragraph 36(1)(a)

57) 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 36 and 37 above) showed that 15.18% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 42 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)

58) Under paragraph 36(1)(b) of the Schedule, an application is not admissible unless the Panel decides 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. The Panel notes that the support check conducted by the Case Manager showed that 31.21% of the workers in the proposed bargaining unit (1242 out of 3980 workers) had signed a petition in favour of recognition of the Union (see paragraphs 39 and 40 above). Of those who had signed the petition 451 were Union members (11.33% of the proposed bargaining unit) and 791 were non-members (19.87% of the proposed bargaining unit).

59) The Panel also notes that the level of union membership in the proposed bargaining unit is 15.18% (see paragraph 57 above). The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. No such evidence to the contrary was put forward in this case and the Panel is therefore content to assume for the purposes of this decision that members of the Union in the proposed bargaining unit favour recognition even though only 451 of those 633 members signed the Union’s petition. The Panel further notes that 791 non-members, 19.87% of the proposed bargaining unit, signed the Union’s petition. On this basis the Panel has evidence which indicates, on the balance of probabilities, that 35.05% of workers in the proposed bargaining unit are likely to favour recognition of the Union.

60) The Panel notes that there have been challenges with the veracity of the Union’s petition. The Union has acknowledged that there were duplicates and false entries with the initial figure of 2400 in favour reducing to 1473 when the Union reviewed the results, which further reduced to 1242 and this figure formed the basis for the support check. The survey was conducted online, it was open for 4 months and publicly referenced including reports in the press. It was recent, having closed on 12 February 2022. There has also been widespread media reporting of the FCA and Unite relationship for some time and the Employer has stated (which the Union do not dispute) that their response to the request for voluntary recognition was published on the FCA website in November 2021. The Panel also acknowledges the Union’s view that it has had significant challenges with campaigning during the pandemic.

61) However, having carefully considered the parties’ submissions, the Panel does not consider that the evidence before it is sufficient to enable it to conclude, on the balance of probabilities, 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 as required by paragraph 36(1)b) of the Schedule.

11. Decision

62) For the reasons given in paragraphs 59 - 61 above, the Panel’s decision is that the application is not accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr David Coats

Mr William O’Shaughnessy

09 May 2022