Decision

Acceptance Decision

Updated 15 March 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1387(2024)

14 March 2024

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

Legalease Limited

1. Introduction

1)         Unite the Union (the Union) submitted an application to the CAC dated 6 February 2024 that it should be recognised for collective bargaining purposes by Legalease Limited (the Employer) in respect of a bargaining unit comprising “All employees within Editorial excluding Editors, Managers, and Directors.”  The location of the bargaining unit was given as “188 Fleet Street, London, EC4A 2HT.”  The application was received by the CAC on 8 February 2024 and the CAC gave both parties notice of receipt of the application on 8 February 2024.  The Employer submitted a response to the CAC dated 15 February 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 Chairman established a Panel to deal with the case.  The Panel consisted of Ms Laura Prince K.C., Panel Chair, and, as Members, Mr Sean McIlveen and Mr Mike Clancy. 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 22 February 2024.  The acceptance period was extended on two further occasions to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, and for the Panel to consider those comments before arriving at a decision. The final extension ends the acceptance period on 14 March 2024.

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 its request for recognition to the Employer on 13 November 2023.  The Union stated that it received a formal response to its request on 27 November 2023, in which the Employer had “queried the bargaining unit.”  The Union said that by e-mail dated 4 December 2023 it provided additional information to the Employer, but the Employer did not respond.  The Union contacted the Employer on 26 January 2024, providing further evidence in support of the proposed bargaining unit, but again the Employer did not respond.  A copy of the Union’s request and its e-mails of 4 December 2023 and 26 January 2024 were attached to its application, along with the Employer’s email of 27 November 2023. 

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 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.

7)         The Union stated that the total number of workers employed by the Employer was 189, and that this figure was based on the 22-23 financial statements. The Union stated that there were 58 workers in the proposed bargaining unit, of whom 20 were members of the Union.  When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union said that it had a petition indicating majority support.       

8)         The Union stated that the reason for selecting its proposed bargaining unit was because the Editorial Department was a coherent entity within the Employer’s operations with distinct line management from the other sections. Editors, Managers, and Directors were sufficiently senior to be involved in determining pay and therefore were justifiably outside of the parameters of the bargaining unit.  The Union said that the bargaining unit had not been agreed with the Employer.   The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

9)         The Union confirmed that it held a current certificate of independence.   The Union stated that it had copied its application and supporting documents to the Employer on 6 February 2024. 

4. Summary of the Employer’s response to the Union’s application

10)       In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 13 November 2023.  The Employer said that it had responded by e-mail dated 27 November 2023, “seeking clarification of more precise makeup of the proposed bargaining unit”.

11)       The Employer said that it had received a copy of the application form and supporting documents from the Union on 8 February 2024.  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 as it believed the definitions seemed to vary within the Union’s communications and they remained unclear.   

12)       When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer answered “No”. 

13)    The Employer said that it disagreed with the number of workers in the bargaining unit as set out in the Union’s application.  The Employer said that it believed that the number was 52.

14)       The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

15)       The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit as it had no knowledge or evidence of staff being members of the Union.     

16)       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 it had no evidence to suggest that a majority of staff within the proposed bargaining unit support recognition. The Employer explained that it had not been supplied with the details of any petition to that effect, and that its own recently conducted survey did not demonstrate a majority view that any union should lead the proposed bargaining unit. The Employer referred to attached data setting out survey questions and responses.^{[footnote 1]}

17)       The Employer did not respond 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 any workers in the proposed bargaining unit.

5. The membership and support check

18)       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 of the Union’s petition.  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 dates of birth) and a copy of its petition.  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 22 February 2024 from the Case Manager to both parties. 

19)       The information requested from both parties was received by the CAC on 26 February 2024. 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 59 workers in the Union’s proposed bargaining unit.  The list of members supplied by the Union contained 29 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 24, a membership level of 40.68%. 

21)       The Union’s petition comprised of 8 A4 sheets and contained 39 names/signatures. Each page of the petition was headed:

“PETITION IN SUPPORT OF UNION RECOGNITION

Unite the Union is asking your employer to recognise it for collective bargaining. We have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please sign the petition. I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays.

I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays:”

Beneath the proposition was a table with 4 columns headed: “PRINT NAME”, “JOB TITLE”, “SIGNATURE”, and “DATE”.   The dates on the petition ranged between 2 October 2023 and 24 January 2024.

At the bottom of each page, it stated:

“This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee only, who will 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. Unite the Union’s full up-to-date privacy policy can be found at www.unitetheunion.org/privacypolicy.”

22)       The check of the Union’s petition showed that it had been signed by 31 workers in the proposed bargaining unit, a figure which represents 52.54% of the proposed bargaining unit.  Of the 31 signatories, 20 were members of the Union (33.90% of the bargaining unit) and 11 were non-members (18.64% of the bargaining unit). 

23)       A report of the result of the membership and support check was circulated to the Panel and the parties on 29 February 2024 and the parties were invited to comment on the results of that check, by noon on 5 March 2024.

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

24)       In an email to the CAC dated 5 March 2024 the Employer stated that it believed it was not in position to assess the levels of membership amongst staff, having had no indication from any employees that were members. The Employer said that it understood that the reported number of names common to both its list and that of the union amounted to 40.68%.

25)       The Employer explained that it had very limited understanding of the context in which any petition created by the union was presented to staff.  The Employer said that it was concerned about the discrepancies between the list of employees provided by the union and the list it had provided, and the impact those discrepancies (along with planned future hires) may have on the proportions of supportive and non-supportive staff.   The Employer maintained that the reported results of the petition were at odds with those of its own survey, conducted in February (on a voluntary basis), which did not indicate majority support for union representation. The Employer said that it also recognised that a large proportion of staff had not indicated support either via its survey or the petition instigated by the Union. 

26)       No comments were received from the Union.   

7. Considerations

27)       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.

28)       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. The remaining issue for the Panel to decide is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.   

Paragraph 36(1)(a)

29)       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. 

30)       The membership check conducted by the Case Manager (described in paragraphs 18 – 20 above) showed that 40.68% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 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.

Paragraph 36(1)(b)

31)       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.

32)       For the reasons given in paragraph 30 above the Panel has concluded that the level of union membership within the bargaining unit stands at 40.68%. 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 received in this case.

As well as establishing that 40.68% of the workers in the proposed bargaining unit were union members, the Case Manager’s check of the Union’s petition against the list of workers provided by the Employer indicated that 31 of the 39 petition signatories were identifiable as workers within the bargaining unit, a support level of 52.54%. Of those there were 20 union members (33.90%) and 11 non-members in the bargaining unit (18.64%).   The Panel notes the Employer’s comments in which it reported on the independent survey which was conducted in order to gauge support for collective bargaining.  However, the Panel considers that the Employer’s comments did not undermine the reliability of the petition as an indicator of the views of those workers.

33)       On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that 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, as required by paragraph 36(1)(b) of the Schedule. 

8. Decision

34)       For the reasons given in paragraphs 27 - 33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince K.C., Panel Chair

Mr Sean McIlveen

Mr Mike Clancy

14 March 2024              

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1. On 22 February 2024 the Employer withdrew this document as it contained data in which individuals could potentially be identified. ↩