Decision

Acceptance Decision

Updated 3 June 2021

Case Number: TUR1/1191(2020)

09 October 2020

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

Splunk Services UK Limited

1. Introduction

1) Unite the Union (the Union) submitted an application dated 5 August 2020 to the CAC that it should be recognised for collective bargaining purposes by Splunk Services UK Limited (the Employer) in respect of a bargaining unit comprising “UK Employees within the Support Organisation whose job title includes “Support Engineer.” The location of the bargaining unit was given as “Within the London and Reading offices within the UK.” The application was received by the CAC on 5 August 2020 and the CAC gave both parties notice of receipt of the application on 6 August 2020. The Employer submitted a response to the CAC on 12 August 2020.

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 Sarah Havlin, Panel Chair, and, as Members, Mr Rob Lummis and Mr Paul Noon OBE. 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 19 August 2020. The acceptance period was extended on three further occasions in order 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 said comments before arriving at a decision. The final extension ends the acceptance period on 9 October 2020.

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 by letter dated 16 July 2020. The Union stated that it was sent via Recorded Delivery and recorded as received at the Employer’s premises on 20 July 2020. The Union stated that by e-mail dated 3 August 2020 the Employer had rejected its request for voluntary recognition. A copy of the Union’s request, the Employer’s e-mail of 3 August 2020, and the Union’s proof of postage receipt from the Royal Mail were attached to the Union’s 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 did not comment. 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 approximately 400, of whom 42 were in the proposed bargaining unit. The Union stated that the number of union members in the proposed bargaining unit was 14. 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 that 64% of the employees had indicated that they would support recognition by way of a petition.

8) The Union stated that the reason for selecting its proposed bargaining unit was because all staff within the proposed bargaining unit worked on customer support cases which was distinct to the other roles within the organisation. The proposed bargaining unit also fell under the same reporting line of UK management in Splunk Services UK. The Union stated that the bargaining unit had not been agreed with the Employer. The Employer had not responded when asked whether there was an 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 5 August 2020.

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 by e-mail on 29 July 2020. The Employer stated the request was not a valid request under Schedule A1 since the bargaining unit was described “in vague terms” and it was unclear. The Employer said that the first period provided for in Schedule A1 had not expired. The Employer explained that it first received the “content of the request” by email on 29 July 2020. The hard copy of the Union’s recognition request letter of 16 July 2020 was posted to its office building and taken in by a member of the building facilities staff on 20 July 2020. The Employer said that it did not own the building and Splunk staff were working remotely at the time due to COVID-19 restrictions. The Employer was notified that there was post for collection, but not what it was, and it was not opened. The Employer said that Government guidance until 1 August 2020 was that non-essential workers should work at home and, accordingly, given the requirement for homeworking and the lack of any indication as to what it related to, the content of the letter was not received. The Employer maintained that the Union was well aware of the COVID-19 restrictions and that staff were required to be working at home and were unable to collect the post.

11) The Employer said that notwithstanding this knowledge, the Union had delayed sending an electronic copy of the recognition request letter for eight working days after its delivery to the building. On 29 July 2020, the Union had contacted the Employer by e-mail and attached a copy the request letter of 16 July 2020. The Employer stated that this was the first time that it had received or seen the content of the letter and that Government guidance to work at home was still in effect at that time.

12) The Employer stated that the request dated 16 July 2020 was therefore not valid under TULCRA Schedule A1 paragraph 5 and under Schedule A1 paragraph 10(6), the first period commenced on 29 July 2020 and did not therefore expire until 13 August 2020. The Employer said that despite this, the Union required a formal response to its request for recognition within four working days, by 4 August 2020. The Employer said that it had asked the Union whether it could consider the request until 10 August 2020, a period of eight working days. The Employer said that this was required not least because the bargaining unit was unclear and it needed more time to understand what was proposed, and to consider whether it was appropriate. The Employer said that the Union did not agree and subsequently submitted its application on 4 August 2020. It was the Employer’s view that its response was therefore filed within the first period and constituted its offer to negotiate regarding the bargaining unit.

13) The Employer further explained that it had responded to the Union’s request by e-mail dated 3 August 2020 at 11.28pm. In this e-mail it confirmed that it had not been granted sufficient time to properly consider the recognition request. The Employer had also explained that it was therefore unable to agree to the recognition request or to any further steps within the Union’s given timeframe. The Employer stated that “This was not a rejection of the request.” A copy of the e-mail chain between the parties between 29 July and 4 August 2020 was attached to its response.

14) The Employer continued, it said that it had received a copy of the application form and supporting documents from the Union on 5 August 2020. The Employer 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 the Union’s description of the proposed bargaining unit was unclear, and it was “too loosely described” for it to clearly identify the limitations of the unit, or the staff who would fall inside it. The Employer stated that the proposed bargaining seemed to have intended to consist of staff to whom all of the following limitations applied (i) have Support Engineer in the job title and provide customer facing technical support; (ii) work from either London or Reading; (iii) report to the same UK based level 5 manager (under Splunk’s management level structure); and (iv) have been consulted over changes to service rotas. The Employer stated that if its assumption was correct, then the number of staff who meet limitations (i) to (iv) appeared to total 41. The Employer stated that there were however, at least a further 11 staff who had Job Profiles containing the words “Support Engineer” but different job titles and it was unclear why the Union appeared to exclude them from the unit. The Employer said that the number of staff in the unit differed depending on which limitations were applied and the Union’s description did not enable it to identify the limitations clearly, or to identify the size of the intended bargaining unit with any certainty.

15) The Employer said that if its assumptions were correct, then it did not consider that the proposed bargaining unit was compatible with effective management. In particular, it did not include all UK based staff who provide customer facing technical support and involves artificial limitations which are not compatible with Splunk’s existing organisation of staff, its arrangements in respect of terms and conditions or with Splunk’s business model for customer support. The Employer further explained why it believed that the Union’s proposed bargaining unit was unsuitable. However, this is an issue that will, if necessary, be considered by the Panel at a later stage of the statutory recognition process

16) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer stated that it had been approached by Acas. The Employer said that “the first contact was on Tuesday 11 August 2020” and in response it had indicated a willingness to undertake discussions regarding the bargaining unit.

17) The Employer disagreed with the number of workers in the bargaining unit as set out in the Union’s application. The Employer referred to its comments in paragraph 14 above, and further stated that based on the limitations that the Union appeared to propose, it believed there were likely to be between 41 and 52 workers, possibly rising higher depending on clarification of the relevant criteria but it hoped to explore this with them.

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

19) When invited to comment on the Union’s estimate of membership in the proposed bargaining unit, the Employer stated that it had not been provided with any evidence to support this estimate and it therefore believed that a membership check was required.

20) 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 stated that depending on the true size of the bargaining unit, union membership may only account for c.20% of the relevant workforce, even if the Union’s estimated membership number was accurate, which had not been confirmed.

21) The Employer said that the bargaining unit had been artificially chosen by the Union to focus on this group and exclude those who should, more appropriately, be included. The Employer said that in any event, it had not seen evidence that the staff concerned even within the proposed bargaining unit actually wanted recognition and although the Union had referred to a petition, it had not seen the question specifically posed.

22) The Employer stated that generally, it did not have a unionised workforce and that the Union had failed to present evidence that a majority would be likely to support recognition.

23) Finally, 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, the Employer answered “Splunk is not aware of any other applications”

5. Additional comments from the parties

24) On 17 August 2020 the CAC copied the Employer’s response to the application to the Union and its comments were invited. In an e-mail to the CAC dated 18 August 2020 the Union stated that it rejected the position argued by the Employer that the request was received on the 29 July 2020. The Union said that it dispatched the request to the named address registered with companies’ house and addressed the letter to the named company secretary (Cara Ibbotson). The Union said that it obtained proof of both postage and receipt of the letter at the Employer’s premises, both of which it had provided its application, and that this confirmed delivery on 20 July 2020.

25) The Union stated that Schedule A1 requires that a request for recognition be submitted “in writing” and the Union’s own CAC procedure for officials required postal delivery. This methodology had been followed for numerous previous CAC applications by the Union without any suggestion that a letter posted to an employer’s registered address was invalid for the purposes of determining compliance with a statutory deadline. The Union said that Government guidance at the time was that employers should facilitate homeworking wherever possible but like many roles and functions within many organisations, post/mail room duties cannot be performed from home and the Government’s guidance was not that employers withdraw any and all onsite presence from their buildings, nor did it provide businesses with general dispensation for non-compliance with any statutory deadlines determined by the receipt of correspondence to a registered business address, which would include Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Union said that it maintained its view that the receipt of the letter by an authorised agent of the company receiving their mail, as evidenced by the proof of postage, was such that the test for a valid request had been met. The Union said that the fact that it had made additional attempts to communicate with the Employer above and beyond the requirements detailed in the Schedule A1 requirements did not change this fact.

26) The Union said that the Employer had clearly rejected its request for recognition in an email dated 4 August 2020 when it stated “In the circumstances I feel you have given us little option other than to confirm that Splunk Services UK Limited does not agree to your request for recognition”. The Union stated that this satisfied the requirement of Paragraph (11)(1)(b) of Schedule A1, that before the end of the first period the employer informs the union (or unions) that the employer does not accept the request (without indicating a willingness to negotiate).

27) The Union further stated that none of the emails from the Employer had conveyed any willingness to negotiate and therefore the Union was entitled to submit its claim to the CAC on 5 August 2020. The Union said that it was “somewhat puzzled” as to the Employer’s argument that “an email rejecting a request for recognition should not in fact be read that an employer has rejected a trade unions request.”

28) The Union stated that the Employer’s argument that the Union had attempted to cut short the timeframe did not tally with the evidence submitted, as on a number of occasions it had clearly offered to discuss voluntary recognition through Acas. The Union said that whilst this was something it must accept if proposed by an employer, it was not something a trade union was required to offer unprompted by itself under the legislation.

29) The Union stated that it rejected the Employer’s arguments concerning the proposed bargaining unit. The Union said that its proposed bargaining unit was consistent with the Employer’s own published organisational structure, which showed that those workers reported to either a Senior Technical Support Manager or a Technical Support Manager, who, in turn, reported to the director of EMIEA Support. Other managers and departments who reported to the director of EMIEA Support were either account managers or manage support teams who were based overseas. The proposed bargaining unit were all caseworkers who worked on customer support cases.

30) The Union said that the Employer appeared to have correctly identified its proposed bargaining unit, which contradicted its position that the bargaining unit was “vague and unclear”. The Union disagreed with the Employer’s suggestion that “None of the further 11 staff undertake any casework and they reported directly to the Director of EMIEA support lack the additional layer of management the proposed bargaining unit have.” The Union said that the proposed bargaining unit was for employees with a “job title” that contained “support engineer” and it was not for all employees who have support engineer referenced in their “job profile”. The reference to consultation about changes to service rotas as a single collective grouping was also potentially indicative that the proposed bargaining unit was compatible with effective management. The Union further explained why it believed its proposed bargaining unit was compatible with effective management. However, as stated in paragraph 15 above, this is an issue that will, if necessary, be considered by the Panel at a later stage of the statutory recognition process

31) The Union stated that it remained agreeable to utilise the services of Acas. The Union further stated that it was ready to provide evidence of membership and support as part of a confidential check.

6. The membership and support check

32) 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 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 a petition compiled by 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 a copy of its petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists and petition would not be copied to the other party and that agreement was confirmed in a letter dated 24 August 2020 from the Case Manager to both parties.

33) On 26 August 2020 the CAC received a further letter from the Employer in which it reiterated the points it had made in paragraphs 10 - 13 above. The Employer said that it believed the Panel should firstly determine the technical issues arising under sections 10 and 11 to decide whether the Union’s CAC application should be rejected, and it should not be re-presented until after the end of the second period. The Employer said that based on its calculations, the second period would expire on 10 September 2020, unless the parties agree an extension for Acas negotiations. Alternatively, the case would be managed so that the parties were allowed to continue discussions through Acas until the expiry of the second period, with the membership check and formal acceptance process being deferred until after that date.

34) The Employer said that it believed both approaches had a similar practical effect and that both permit adherence to the spirit of the legislation, which was to facilitate agreement where possible. The Employer said that, in any event, the parties were continuing their dialogue through Acas and it looked forward to hearing from the Panel with a determination of these issues.

35) Finally, the Employer said that it was not in any position to provide the employee data by close of business on 26 August 2020 as it involved a manual exercise of collating and inputting data from different sources, and the provision of personal data. The Employer said that given the circumstances, it believed it should be deferred until after the application had been determined.

36) On 28 August 2020, the CAC copied the Employer’s letter of 24 August 2020 to the Union, and, at the request of the Panel, the Case Manager informed the parties that the Panel was not minded to make a determination on the issue of Notice as a preliminary issue. It further invited the Union’s comments on the Employer’s request to pause the proceedings to allow Acas negotiations to continue. Due to a technical glitch with the CAC’s e-mail system this was not received by the Union on 28 August 2020 and it was therefore re-sent to the Union on 7 September 2020.

37) In a letter to the CAC dated 7 September 2020 the Union stated that it stood by its argument that the requirement for sending a request for recognition to an employer “in writing” had been fulfilled. The Union said if the CAC were to accept the Employer’s argument, it would undermine the entire basis of the statutory recognition procedure as employers could at will, deny receiving requests for numerous reasons even where a trade union had proof of delivery and receipt.

38) The Union said that the Employer’s letter did not address the point that the Employer had rejected the request for recognition. The Union maintained its view that, by the Employer writing to the Union on 3 August 2020 to “confirm that Splunk Services UK Limited does not agree to your request for recognition”, without any response to the Union’s invitation to utilise the services of ACAS, there was no reasonable interpretation of this other than that the Employer had failed to indicate a willingness to negotiate.

39) The Union stated that it had provided its membership and support data within the timeframe outlined by the CAC. The Union said that it would expect that the Employer could do the same given the relatively small size of the proposed bargaining unit and the fact that this data was readily available in the form of an organisation chart, which the Employer could simply send to the CAC for its consideration.

40) In response to the Employer’s assertion that “the parties are in dialogue”, the Union stated that this was not the case as no dialogue had taken place on the question of recognition itself. The Union said that this was despite the fact that it had included the offer of Acas facilitated talks to discuss voluntary recognition in its original letter to the Employer on 17 July, and again in responses to the Employer’s assertion that the true date of the request was the 29 July, and following the Employers rejection of the request for recognition on 4 August 2020.

41) The Union said that “Acas reached out to the parties” on the 11 August 2020. The Union explained that it spoke with the Conciliator and then “chased them for an update” on the 18 August 2020. A further telephone conversation with the Conciliator took place but no offer of talks were made to the Union, nor had any dialogue to discuss voluntary recognition taken place with the Employer despite the Union’s many offers and indications that it was ready and willing to do so. A copy of the email dialogue with Acas was attached to the Union’s letter.

42) The Union stated that it was therefore concerned that the Employer’s claimed desire to negotiate was lacking in substance and did not warrant further delay as no further contact through Acas had been made since the 18 August 2020. The Union said that it was not aware any approach had been made by the Employer to Acas since this date.

43) The Union said that despite its belief that there was no justification in delaying the formal process further, it continued to be willing to utilise Acas conciliation and following the lack of any contact it had now provided its availability to both the assigned Acas conciliator and the Employer. The Union said that it had noted in particular that the only matter the Employer had so far grappled with, were arguments about the description of the bargaining unit. Finally, the Union stated that without prejudice to its view that its proposed bargaining unit was compatible with effective management and entirely appropriate, it noted that should its application be accepted, there would be further opportunity for utilising the services of Acas in seeing whether there was a mutually acceptable position on the bargaining unit question The Union said that it would seek to utilise that opportunity.

44) On 9 September 2020 the CAC copied the Union’s letter of 7 September 2020 to the Employer and informed both parties that, in view of the Union’s comments, the Panel had directed that the Case Manager proceed with the membership and support check. Accordingly, the Employer was asked to provide to the Case Manager, a list of the names, dates of birth, and job titles of the workers in the proposed bargaining unit by no later than noon on 11 September 2020. The Union was also invited to supply a revised membership list by this deadline.

45) In a further letter to the CAC dated 11 September 2020 the Employer requested a full determination in relation to the jurisdictional matters it had raised on sections 10 and 11 of Schedule A1.

46) Further, in relation to the Union’s comments, the Employer stated that it wished to point out that both parties were aware that the Acas Officer was on holiday and that this was the reason why discussions through Acas did not progress. The Employer said that it remained committed to engaging with Acas, but it did not accept the Acas process was “lacking in substance” or that it should be cut short.

47) The Employer stated that although it had initiated discussion through Acas, it now appeared from the Union’s letter that the Acas Officer may not have communicated those discussions to the Union before their holiday. The Employer stated that it was unaware of that. The Employer said that its understanding from a recent email to the Acas officer in order to progress the discussions, was that the individual was still out of the office.

48) The Employer continued, “as to a more technical point raised by the Union”, the Employer said it hoped it was clear to the Panel that it had not argued that the Union were not entitled to issue the application when they did. The Employer said its letter was clear and that “It is accepted that Unite has a technical argument around whether section 11 of Sch. A1 permitted Unite to send their application to the CAC when it did. However the natural meaning of the legislation is that the combined effect of sections 10 and 11 in the unusual circumstances of this case could lead to a situation where it is possible for Unite to avoid criticism for sending their application to the CAC, but for it also to be correct that the application is premature and contrary to section 10 and liable to be rejected.”

49) The Employer further stated that, in relation to the request to provide the information for the membership and support check by noon on 11 September 2020, it would require slightly more time as the necessary data needed to be compiled and checked from more than one source. The Employer said that it would aim to provide the requested data as soon as possible but not later than noon on 16 September 2020.

50) On 11 September 2020 the CAC copied the Employer’s letter of 11 September 2020 to the Union. The parties were also informed that the Panel would apply all of the admissibility tests at the acceptance stage and consider all the evidence before arriving at a decision on whether or not to accept the Union’s application, they were also informed that a decision would be issued to the parties at the end of this period, which would set out the Panel’s considerations.

51) The Panel also informed the Employer that the Panel had agreed to further extend the deadline for it to supply the information for the check, until noon on 16 September 2020.

52) The membership and support check resumed, and the information requested from the Union was received by the CAC on 10 September 2020 and from the Employer on 16 September 2020. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

53) The list supplied by the Employer indicated that there were 41 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Cloud Support Engineer, EMEA

• Graduate Technical support Engineer

• Princ Dedicated Support Eng

• Senior Support Engineer

• Senior Technical Support Engineer

• Senior Technical Support Engineer, EMEA

• Sr Support Engineer

• Sr. Technical Support Engineer

• Staff Technical Support Engineer

• Technical Cloud Support Engineer, EMEA

• Technical Security Support Engineer – Phantom – EMEA

• Technical Support Engineer

• Technical Support Engineer, EMEA

54) The list of members supplied by the Union contained 21 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 21, a membership level of 51.22%.

55) The petition forms supplied by the Union contained 25 names and signatures, of which 24 were in the proposed bargaining unit, a figure that represents 58.53% of the proposed bargaining unit. Of those 24 signatories, 16 were members of the Union (39.02% of the proposed bargaining unit) and 8 were non-members (19.51% of the proposed bargaining unit).

The petition consisted of 3 A4 sheets, which were set out as follows:

“UNITE THE UNION

OUR UNION AT Splunk

Petition calling for union recognition

July 2020

We, the undersigned Technical Support Engineers at Splunk Services UK Limited (“Splunk”) call for and support the recognition of the Unite union by Splunk”

Beneath the statement, each signatory to the petition had provided their name, job title and signature.

56) In an e-mail to the Case Manager dated 17 September 2020 the Union clarified that “the signatures were collected from early June to mid-July.”

57) A report of the result of the membership and support check was circulated to the Panel and the parties on 18 September 2020 and the parties were invited to comment on the results of that check by 22 September 2020.

7. The parties’ comments following the membership and support check

58) In a letter to the CAC dated 18 September 2020 the Union stated that a majority of the proposed bargaining unit appeared to be members of the Union, and that this level further increased if its petition was also taken into account.

59) The Union stated that the Employer appeared to have included 2 engineering roles that were not part of the proposed bargaining unit, and that based on the information available to the Union at the time, the bargaining unit now consisted 39 employees as opposed to 41.

60) The Union submitted that, in any case, it appeared to have satisfied both tests under paragraph 36 of Schedule A1, and that it was prepared to discuss its concern in more detail at the next stage of the process should the application be accepted.

61) In a letter to the CAC dated 22 September 2020, the Employer stated that it accepted that at least 10 per cent of the workers in the proposed bargaining unit were members of the union, as required by paragraph 36(a). It stated that it did not however accept that a majority of workers in the bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the Union bargaining unit, as required by paragraph 36(b).

62) The Employer said that although the membership check indicated that the level of union membership within the proposed bargaining unit was 51.22%, it did not believe that all members of the union were likely to favour recognition of the Union for collective bargaining. The Employer said that it had been told that a number of employees in the bargaining unit had joined the Union based on the misunderstanding that they needed to be members of the Union in order to have a vote on recognition. The Employer said that those employees were opposed to recognition but had joined the Union in order to be able to vote against recognition. The Employer said that in this regard, it noted that of the 21 employees in the proposed bargaining unit who are union members, only 16 (39.02% of the proposed bargaining unit) signed the union’s petition.

63) The Employer said that it did not consider that signing the petition was reliable evidence of support for recognition for collective bargaining, but it was inconceivable that a union member who supported recognition, would not sign the petition. Given the small size of the bargaining unit and the fact that the Union had said that the signatures were collected from early June to mid-July (a period in excess of a month), it could not be the case that they did not have the opportunity to sign. The Employer stated that it believed it was therefore clear that at least 5 of the union members included in the proposed bargaining unit were not in favour of recognition, along with others in the bargaining unit who had not signed the petition.

64) The Employer maintained that although union membership appeared to have increased from the level the union had claimed when they submitted their application, it considered that this was also explained by the fact that employees had joined the union under the misapprehension that they needed to do so in order to vote against union recognition.

65) The Employer stated that it did not believe the petition could be relied on as evidence that those who signed it were likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the workers in the proposed bargaining unit. The Employer stated that the petition statement was vague and potentially misleading and simply read “ We, the undersigned Technical Support Engineers at Splunk Services UK Limited (“Splunk”) call for and support the recognition of the Unite union by Splunk”. It did not specify that the support related to recognition for collective bargaining, nor did it indicate that the collective bargaining would relate to pay, hours and holidays. The Employer maintained that union recognition was not common within the Tech Sector or within Splunk and that there may not be a high level of understanding of what “recognition” would mean. The Employer said that employees may have signed the petition wanting the union to be recognised for the purposes of accompanying employees to disciplinary proceedings

66) With regard to the dates on which the signatures were collected. The Employer said that the circumstances of the proposed bargaining unit had changed materially since that date, such that signatures collected at that time could not be regarded as a reliable indicator of whether employees in the bargaining unit would be likely to favour recognition at this stage.

67) The Employer said that the background to the Union’s application for recognition was that Splunk had launched a consultation over proposed new rota arrangements and a move to 24/7 global coverage, which some employees within the bargaining unit were not happy with. The proposal was announced in mid June 2020 and consultation began then. In August, as a result of consultation, Splunk confirmed material amendments to that arrangement and in particular that any rota changes would only be introduced on a voluntary basis. Over 70% had indicated that they were willing to opt into the voluntary arrangement. The Employer stated that in view of this change and the successful outcome of direct consultation, it considered that any support for union recognition would have declined and therefore, the petition was not an accurate indication of current level of support for recognition within the bargaining unit.

68) On 1 October 2020 the CAC cross copied the parties’ comments on the Case Manager’s report. In this letter the parties were also informed that the between 29 September 2020 and 01 October 2020 the Case Manager had received three e-mails referencing the above case. The Case Manager reported that two e-mails stated “I have been informed of the results of the CAC membership report. I understand that if Unite has a membership majority, the union could be granted automatic recognition, because it would be assumed that all union members would want recognition. I would prefer to be balloted on the issue of collective bargaining in order to vote NO to union recognition.” The content of the third e-mail could not be summarised as the author could be identified. The authors intentions were also unclear. The Case Manager clarified that the authors to the emails had not been subjected to a check to establish whether they were workers in the proposed bargaining unit, or to confirm their membership status, and that they would be kept on file as they may be relevant at a later stage.

8. Considerations

69) In deciding whether to accept the application, the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 above are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision. The Panel is satisfied that the Union made a valid request to the Employer within the terms specified in paragraphs 5 to 9 of the Schedule to recognise it for collective bargaining in respect of the proposed bargaining unit as described in paragraph 1 of this decision. The request was made in writing and identified the Union, the proposed bargaining unit and the request was made under the Schedule. The Panel is satisfied that the proposed bargaining unit described in the Union’s request letter refers to the same group of workers as described in the CAC application.
The Panel is also 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.

70) The next issue for the Panel to decide is whether the Union’s application to the CAC was made in accordance with the statutory timescale. Paragraph 10(6) of the Schedule states: “The first period is the period of 10 days starting with the day after that on which the employer receives the request for recognition.

71) Paragraph 11 reads as follows:

11) (1) This paragraph 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 (or unions) that the employer does not accept the request (without indicating a willingness to negotiate).

(2) The union (or unions) may apply to the CAC to decide both these questions-

(a) whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate;

(b)whether the union has (or unions have) the support of a majority of the workers constituting the appropriate bargaining unit.

72) The Union said that its initial request letter was sent by Recorded Delivery on 16 July 2020 and recorded as being received at the Employer’s premises on 20 July 2020. The Union provided a proof of postage and receipt as evidence to support this. The Employer had stated that it did not own the building and that its staff were working remotely at the time due to COVID-19 restrictions. The Employer was therefore notified that there was post for collection, but was not informed of its content, and it was not opened. The Employer emphasised to the Panel that Government guidance until 1 August 2020 was that non-essential workers should work at home. On 29 July 2020, the Union had contacted the Employer by e-mail and attached a copy of its request letter of 16 July 2020. The Employer responded to the Union’s request by e-mail dated 3 August 2020 in which it confirmed that it had not been granted sufficient time to properly consider the recognition request. Within its response to the Union the Employer had also stated that it was therefore unable to agree to the recognition request or to any further steps within the Union’s given timeframe. The Union subsequently submitted its application to the CAC on 4 August 2020. The Panel accepts the Union’s submission that service of the notice on the Employer was achieved by post on the date it was received at the registered address of the Employer and this was appropriately evidenced including proof of delivery by registered post. The prevailing Covid 19 situation and its impact on working restrictions does not absolve any person or organisation in terms of acting on the service of any formal or legal correspondence which has been served by means of posting to an official registered address. Any difficulties encountered by a person or organisation served in this way which is due to the current unusual working circumstances may well require the granting of a grace period, which, in this case, the panel was prepared to extend and indeed did extend to the Employer to allow time to conclude any constructive dialogue with the Union. However, in the view of the Panel, the situation outlined by the Employer does not render service of the notice by the Union as defective nor does it undermine its validity. Moreover, it is the Panel’s view that the fact that the Union’s initial request letter was not seen by the Employer until 29 July 2020 was immaterial because the Employer proceeded to reject the Union’s request by e-mail of 3 August 2020, within the first period, pursuant to paragraph 11(1)(b). The Panel therefore decides that the application was made in accordance with paragraph 11 of the Schedule.

73) The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraph 36(1)(a) and paragraph 36(1)(b) are met.

9. Paragraph 36(1)(a)

74) 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.

75) The membership check conducted by the Case Manager (described in paragraphs 32 and 52 - 54 above) showed that 51.22% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 52 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)

76) 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.

77) The Case Manager’s check of the Union’s petition against the list of 41 workers provided by the Employer indicated that 25 of the 25 petition signatories were identifiable as workers within the bargaining unit, a support level of 58.53%. Of those there were 16 union members (39.02%) and 8 non-members in the bargaining unit (19.51%). The Panel considers that union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union (51.22%), as would non-union members who signed the petition (19.51%); giving a total of 70.73%.

78) The Employer has alleged that the petition statement was “vague and potentially misleading” of the petition’s purpose which, it claimed, had not made it clear that the support expressed was for the specific issue of recognition for the purpose of collective bargaining related to pay, hours and holidays. It was submitted that the workers were not very familiar with the technical distinctions of Union representation because Tech employees were not experienced in Union issues, for example many may not make the distinction between collective bargaining and support for disciplinary proceedings. However, the Panel has received no documentary evidence to support the Employer’s claims.

79) Further, the Panel notes that 3 e-mails were received by the Case Manager as described in paragraph 68 above, 1 of which the Case Manager was unable to tell their intentions, and 2 further e-mails in which the authors had indicated that they would not support the Union in a ballot. No checks were carried out to establish whether they were from workers in the proposed bargaining unit or to check their membership status. In the Panel’s view, even if assuming the e-mails were from workers in the bargaining unit, based on the figures in the Case Manager’s report the Panel remains satisfied that the tests have been met.

80) The Panel wishes to remind the parties that this is not a definitive test of support and that, for this test to be met, the Panel must only be satisfied that a majority of the workers in the bargaining unit would be likely to favour recognition. It is not a test as to whether the Union has majority membership within the bargaining unit.

81) On the basis of the evidence before it, the Panel has decided that, on the balance of probabilities, 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.

82) Finally, the Panel notes the Union’s concerns, set out in submissions above, that the information provided by the Employer included two engineering roles who are not in the proposed bargaining unit. In view of its decision that the admissibility criteria been met the Panel has not found it necessary to investigate the Union’s concerns for the purposes of this decision. However, this does not prevent the Panel from undertaking further investigations at a later stage of the process should it consider this to be appropriate.

11. Decision

83) For the reasons given in paragraphs 69 - 82 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Sarah Havlin, Panel Chair

Mr Rob Lummis

Mr Paul Noon OBE

09 October 2020