Decision

Bargaining Unit Decision

Updated 3 June 2021

Case Number: TUR1/1191/2020

16 February 2021

CENTRAL ARBITRATION COMMITTEE TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992 SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

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 who was later replaced by Sharmin Khan.

3) By a decision dated 9 October 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in which to try and reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with written submissions relating to the question of the determination of the appropriate bargaining unit. Owing to the current Covid Global pandemic, the Panel directed that the CAC exchanged those written submissions with an invitation for the parties to provide the Panel with their responsive submissions before the Panel reached a decision on whether it was necessary for the Panel to hold a formal hearing with the parties. On 4 December 2020, CAC gave both parties notice that a formal hearing would take place on-line, on 17 December 2020. The names of those who attended the hearing on behalf of the parties are listed at appendix 1 of this decision.

2. Issues for consideration by the Panel

4) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

5) The views of each party relating to the provisions as set out in paragraph 4 above as expressed to the Panel in their written and oral submissions are summarised below from paragraph 8 onwards.

3. Specified information on the proposed bargaining unit

6) After acceptance of an application, paragraph 18(A) of the Schedule imposes a duty on the Employer to provide specified information to both the CAC and the Union including: a list of the categories of worker in the proposed bargaining unit; a list of the workplaces at which they work and the number of workers it reasonably believes to be in each of the categories at each of the workplaces.

7) In compliance of the above duty the Employer made a submission to the Panel and to the Union on 16 October 2020 in which it explained that every job within the Company had a “system job profile” title and a “business job” title. The “system job profile” was defined under a job levelling framework based on the primary function of the job family and the level of work being performed which was recorded on the Employer’s HR system and was consistent across the Company globally. The “business job” title was the job title used by the employee on a day to day basis and was shown in e-mails and business cards. As the Employer understood it, the Union’s proposed bargaining unit related to those with “Support Engineer” in their business job title rather than their system job profile title. The Employer stated that the information now required by the Schedule related to “category”. The Union’s proposed bargaining unit were Support Engineers, however for the purposes of the Schedule the Employer understood the category to mean the system job profile.

4. Summary of the Union’s submissions

8) The Union furnished the Panel with a number of supporting documents. These included the written witness statement of Mr Daniel McGarry, Senior Technical Support Engineer (London Office), a copy of the job descriptions of the relevant job roles, organisation charts, a copy of the Employer’s slide shows on “Engineers Rota Consultation”, Support Engineer’s “Global Coverage”, “Splunk Certification Exam Study Guide”, a copy of the Support Engineer Amendment to Terms re: shift patterns and Support Engineer Training Certificate Data and Splunk Employment contract. The Union’s case provided the Panel with the Union’s observations on the relevant law, the reasons as to why its proposed bargaining unit was appropriate and its views on the Employer’s views on what constituted an appropriate bargaining unit.

5. Points of Law

9) In addition to paragraph 19B of the Schedule (paragraph 4 above) the Union cited the following points of law to the Panel:

i) ‘Appropriate’ for the purposes of paragraph 19(2) of the Schedule was to be determined in the sense of suitability for the purpose of collective bargaining (see Kwik Fit (GB) Ltd v CAC [2002] ICR 1212 at [7], per Buxton LJ).

ii) ‘Compatible’ in paragraph 19B(2) of the Schedule referred to ‘consistent with’ or ‘able to co-exist with’ effective management. Harvey on Industrial Relations helpfully paraphrased the question as follows:

“…taking account of the statutory criteria and of the way in which the undertaking operates and is organised, does the proposed bargaining unit offer a sensible and workable vehicle for settling by collective bargaining the pay, hours and holidays of the workers concerned?” (At [1254].)

iii) The test was not whether the proposed bargaining unit was the most effective or desirable, only whether it was ‘appropriate’ (see Kwik Fit) and that it was only ‘effective management’ which was required not that it be compatible with the ‘most effective management’ (see Kwik Fit, above at [15]).

6. The appropriate bargaining unit

10) The Union contended that the bargaining unit it proposed in its application to the CAC was an appropriate bargaining unit. It had applied for a proposed bargaining unit consisting of all UK Employees within the Support Organisation whose job title included “Support Engineer”. The Employer had stated in its initial response to the application that this was vague and unclear. However, the Union felt its proposal was very clear by identifying a bargaining unit on the basis of job titles. The Union had also noted that the Employer had correctly identified the workers within its proposed bargaining unit.

11) There were two additional Support Engineers employed by the Employer which the Union was not aware of at the time of its application. They were employed to provide support for two specific products, SignalFX and VictorOps, which were recent acquisitions. Unlike the 40 employees identified in the Union’s proposed bargaining unit in its application, these two employees reported to line managers in the United States who did not in turn report to the Director of Europe, Middle East, India and Africa or EMEIA ^{[footnote 1]} Support. The Employer had communicated to the Panel previously that it aspired to, at some point in the future, to integrate these two employees into the same reporting lines as the rest of the proposed bargaining unit. It had not provided a likely timescale for this. The Union would therefore accept and understand that these two employees did not fit neatly into the Union’s proposed bargaining unit should the Panel choose to exclude them.

12) The Union contended that its proposal was compatible with effective management as it covered workers on customer support cases who were a distinct group of workers with similar characteristics, undertaking work to achieve the same end, a coherent and discrete group. The Union explained that Support Engineers provided a technical support function within the support organisation, for various information technology products. When the Employer’s customers had a problem with a product and required technical support, a support case or “ticket” was opened and a Support Engineer was assigned to own the case and assist in providing a technical resolution by way of direct assistance or advice to the customer. Whilst there were differing levels of seniority within its proposed bargaining unit, most of these tickets could be assigned to any worker within this group.

13) With regard to the desirability of avoiding small fragmented bargaining units, the Union stated that the Employer did not have any pre-existing recognition agreements therefore its proposal would not fragment and/or encourage the fragmentation of existing bargaining units into smaller groups. With regard to fragmentation in general, the Union stated that it was not seeking to “hive off” certain Support Engineer roles where there was a higher proportion of union membership but sought to represent all UK Support Engineer roles.

14) When considering the location and characteristics of the workers, the Union stated that all the workers in the proposed bargaining unit worked either at the London Paddington (Brunel Building) office or the Reading (Thames Tower) office.

15) The workers in the proposed bargaining unit performed the same or similar roles and were largely interchangeable, covering for each other in the event of absence. They were all caseworkers who worked on customer support cases with well defined, well identified roles. They represented a cohesive and discrete group of workers with similar characteristics.

16) The workers in the proposed bargaining unit all had the same staff handbook with the same policies applying to them. With regard to terms and conditions of employment, according to the Union there was no transparent pay structure within the company and this was one of the objectives of the Union’s application for recognition. The workers had the same holiday entitlements and followed the same shift pattern. These were ‘core topics’ for which the Union was seeking to collectively bargain over should its application be successful.

17) The workers in the proposed bargaining unit held the same position within the Company structure, reporting either to a Senior Technical Support Manager or a Technical Support Manager both of whom in turn reported to the Director of EMEA Support. The Union’s proposed bargaining unit was made up of the entirety of the Employer’s 40-strong UK workforce that reported to these two managers though the Senior Technical Support Manager line managed a single additional employee based in Madrid. Aside from the aforementioned Senior Technical Support Manager and Technical Support Manager, there were six other managers who reported directly to the Director of EMEA Support: one who managed a team in Poland, and five others who were Technical Support Account Managers (TSAMs).

18) The working hours of the all the workers in the proposed bargaining unit were subject to a Service Rota which included planned weekend working. The shift patterns ensured technical support for the Employer’s products using a “follow the sun” support model where support teams based in different countries supported the products for specific periods of time to ensure 24 hour support. The Employer had recently consulted with all the workers in the proposed bargaining unit as a discrete grouping within its workforce, about the Service Rota. Workers outside the proposed bargaining unit were subject to separate working arrangements.

19) All workers within the proposed bargaining unit required particular training and technical qualifications. They needed certain technical expertise acquired through specific IT qualifications or had the relevant experience. For the Support Engineer roles, the Information Technology Industry recognised technical skills and experience were required in various Platforms/Operating Systems and Programming Languages/Scripting tools. Job Adverts for other non-technical roles focused on soft skills and overall exposure to the IT industry which evidenced that they were primarily non-technical roles. The Employer also had a formal certification program for their products with exams conducted by Pearson VUE. All workers within the proposed bargaining unit were required to reach firstly “admin” and then “architect” level. This was not required for workers outside the Union’s proposed bargaining unit. All workers within the proposed bargaining unit also received detailed technical training when there was a change to product. This was not the case for workers outside the Union’s proposed bargaining unit, who would only receive an overview in these circumstances.

7. Views on the Employer’s proposals

20) The Union’s understanding was that the Employer would seek to include the roles of: Technical Support Account Managers (TSAMs), Escalation Managers, Incident Commanders and the Cloud Ops Change management roles. The Union’s objection to the inclusion of these job roles in the appropriate bargaining unit was that, in its view, these roles were materially different to the Support Engineer and were less technical.

21) TSAMs did not own customer support cases or fix issues themselves. Rather they identified when someone else, i.e. a Support Engineer was required to fix something. They did not operate under the same processes and procedures as Support Engineers. It was not a fully technical role but rather focused on high level business planning and strategy, account management and customer relationships. TSAMs were assigned to specific accounts/customers and did not operate on a “ticket” basis. They did not perform scheduled out-of-hours work; and it was a managerial role that reported directly to the Director of EMEA Support.

22) Neither were the Escalation Manager or the Incident Commander a technical role. The Escalation Manager managed high level escalations within the organisation and had a different reporting line to that of the Support Engineers. The Incident Commander managed high priority incidents, communicating with all stakeholders (customers, Support Engineers and TSAMs) to “crowd control” so that Support Engineers could focus on fixing the technical issue. Incident Commanders also had a different reporting line to the Support Engineers. The Cloud Ops Change Management role was also a non-technical role in which a worker managed cloud organisational processes rather than resolving issues with the product. These workers did not engage directly with Support Engineers but with the Support Engineers’ managers and again had a different reporting line, reporting to a manager in the US.

23) In conclusion, in all the circumstances, the bargaining unit of all UK Employees within the Support Organisation whose job titles included “Support Engineer” was the appropriate bargaining unit.

8. Summary of the Employer’s submissions

24) The crux of the Employer’s case was that the Union’s proposed bargaining unit was not compatible with effective management. The detail of the Employer’s submission relied on the written witness statement of the Company’s VP and Global Support for Splunk Inc, Ms Christensen. She was currently responsible for the overall leadership, vision, strategic and budgetary decision making of the ‘Global Support Organization’, which covered the workers within the Union’s proposed bargaining unit. The supporting documents provided included an organisational chart of those who reported to Ms Christensen and documents providing information on the Employer’s “Customer Success Functions”; “Customer Success at a Glance” and the “Systems Integration Consultant”.

9. Company Background and Structure

25) Splunk Inc., was the parent company of the Splunk group, a publicly listed US company headquartered in San Francisco. It had 27 offices across North America, EMEA and Asia Pacific and currently approximately 6,300 employees. Splunk was created in 2003 and by Financial Year 2020 its revenue was US$2.36 bn. Splunk Services UK Limited was a subsidiary of Splunk Inc. and employed approximately 443 employees, who worked in Sales (278 employees), Marketing (17 employees), IT Operations Analytics (4 employees), Products (30 employees), Customer Success (77 employees) and support functions such as HR, Facilities, Finance and Legal (37 employees). The employees of Splunk UK were split between its offices in London and Reading.

26) Splunk was a software company that operated in the Information Technology sector. It made machine data accessible across an organisation by identifying data patterns, providing metrics, diagnosing problems and providing intelligence for business operations. It was a horizontal technology used for application management, security and compliance, as well as business and web analytics. It had a number of products including Splunk Enterprise (its flagship product), a software product that enabled you to search, analyse, and visualise the data gathered from the components of your IT infrastructure or business; SignalFx, a monitoring and analytics platform which allowed customers to analyse, visualize, automate, and alert on metrics data from infrastructure, applications, microservices, containers, and functions; Splunk Phantom which provided security orchestration, automation and response capabilities that allowed analysts to improve efficiency and shorten incident response times and VictorOps (now Splunk Oncall) an automated incident management system.

27) Splunk’s Management structure was largely centralised in the US and grouped into business divisions. Each group division supported distinct areas of the product lifecycle. Each division was supported by the necessary resources (e.g. finance, HR, marketing etc) to support the specific service, product line or geography via an organisational matrix who reported up through their own functional/divisional leader. Individuals often reported to more than one manager or leader in relationships described as ‘solid line’ or ‘dotted line’ reporting. Often, where there were limited functional support groups one person (for example Operations or HR) may support the whole division globally or regionally on a business partnering basis.

10. The Law

28) The Employer cited the following points of Law for the Panel’s consideration:

i) When the Panel was determining the appropriateness of the proposed bargaining unit it was to be made by reference to the statutory criteria in paragraph 19B(2) of the Schedule, and to which the Court of Appeal decision in Lidl Ltd and CAC v GMB [2017] EWCA Civ. 328, [2007] ICR 1145 per Underhill LJ at paras. 15- 17 had given general guidance on the approach to be taken.

ii) The Employer asked the Panel, in reaching its determination as to the appropriateness of the proposed bargaining unit, to have regard to the CAC’s general duty at para. 171 of the Schedule namely “…to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace…”.

iii) The Panel was asked to pay primary regard to ensuring that the “…need for the unit is compatible with effective management”; compatibility connotes consistency with or an ability to co-exist with (TGWU & GMB and Gala Casinos Ltd (TUR1/206/02, 24 December 2002), CAC; NUJ and Pearson Education Ltd (TUR1/652/08, 30 January 2009), CAC).

iv) The Employer stated that “Effective management” had been deemed by the CAC to be understood in terms of achieving workable methods of resolving issues of pay, hours and holidays by means of collective bargaining (GMPU and Ritrama (UK) Ltd (TUR1/178/02, 11 July 2002).

v) The need for the unit to be compatible with effective management was also to be considered by the Panel in the context of the five matters listed at sub-paragraphs 19B(3)(a) to (e) of the Schedule ^{[footnote 2]}. These matters were commented upon by the Court of Appeal in Lidl as not being wholly distinct from the question of the compatibility with effective management.

vi) In assessing the matters at paragraph 19B(3) of the Schedule, the Employer asked the Panel to look to how its business organisation functioned in practice: in particular, how it ‘has divided its operations on the basis of functionality’ (TGWU and Royal P & O Nedlloyd (TUR1/400/04, 9 February 2005) CAC. In this case, the employer’s objection to a bargaining unit which treated the parent company’s white-collar staff as if they were separately employed by its various subsidiaries was undermined by the fact that that was exactly how they were already treated in practice.

vii) The Employer put to the Panel that whilst it was clear from Lidl that fragmentation was specifically concerned with the situation where there was more than one exercise in collective bargaining, that did not mean that fragmentation within an employment structure, even absent other collective bargaining, was not capable of being the reason that a proposed bargaining unit was incompatible with effective management, as was noted by Lord Justice Underhill at paragraph 38 of his Judgment in Lidl. So, if an employer genuinely approached pay, hours or holiday so as to achieve a common approach for a group of employees collective bargaining for a proposed bargaining unit which constituted a subset of that group may be inconsistent with effective management. If the “proposal risks undermining the commonality of approach to persons with the same job title or function which the Company” per the CAC in CWU v MCI (TUR1/482) (2005), the proposed bargaining unit would be incompatible with effective management. In this respect, the Employer asked the Panel to note in particular the reasoning of the CAC at paragraph 20 of the decision. In its view, the facts of MCI had parallels with the present case.

11. Views on the Union’s proposed bargaining unit

29) The Employer’s primary point was that the Union’s proposed bargaining unit was problematic because it was defined around a “business title” rather than by describing roles that were relative to its “functional role” within the structure of the Company. In so doing, the Union had failed to take into account that other employees were carrying out functionally similar roles. The Employer contended that a proposed bargaining unit that was described by the use of words within a business title gave rise to fundamental problems when considering effective management. The words “Support Engineer” formed part of a business title that could be changed or varied for individuals. The fact that a business title used the term “Support Engineer” was not a firm basis upon which to define a bargaining unit.

30) The Employer contended that the structure of the Company ought to be considered when deciding an appropriate bargaining unit. It employed approximately 443 employees across a variety of roles in the UK, including employees who sat in its Customer Success Division, and in which Global Support sat. The Union’s proposed bargaining unit covered only some of the UK employees within Global Support. The Employer asserted that the Customer Success Division focused on ensuring that customers had a successful experience when using Splunk products and as suggested by the name, Global Support was a “global function” and not limited to the UK.

31) The Employer raised the issue of Business Titles and Job Profiles explaining that jobs were each classified using three job titles that served three different purposes: i) a business title; ii) a job profile and iii) a job position. The Employer contended that an employee’s business title did not define, in a consistent way, the employee’s functional role but was rather the title used by employees to refer to themselves on, say, business cards or email signatures. Furthermore, an employee’s business title could be negotiated or personalised to reflect to customers a particular focus that the employee wished to give to their experience or work. The “Job profile” of the employee however, described the functionally of their role. These were defined in terms used by the Company and was an organisational description of the primary function of the job family in which the job sat, and further within that, the level of work being performed. Job profiling mirrored a job levelling system designed by the Radford Surveys. The Radford Surveys was a system that split roles into four groups: Executive; Support; Management and Professional. Within each of these groups were job umbrellas, job families and within the families, were different job profiles. Each job profile had different job levels which depended on the skills, abilities and experience the employee required for the role.

32) The objective of using job families, job profiles and job levels was to ensure consistency in pay practices internally and in respect of the external market. It was desirable when seeking to achieve an equitable and fair system, to be consistent in pay based upon skills, abilities and experience, required for specific roles. Within Global Support in the UK , business titles were reflective of the fact that they may be individualised, thus a variety of business titles was in use by employees within Global Support. With the exception of the Cloud Operations Change Management Consultant, all of the roles within Global Support in the UK had the job profile of “Technical Support Engineer”. There was no such role of “Support Engineer” simpliciter. The use of “Support Engineer” by the Union was not an organisationally defining factor for the Employer. The Union’s term “Support Engineer” included: i. Technical Support Engineer ii. Technical Support Engineer, EMEA iii. Graduate Technical Support Engineer iv. Senior Support Engineer v. Staff Technical Support Engineer vi. Senior Technical Support Engineer vii. Senior Technical Support Engineer, EMEA viii. Prince Dedicated Support Engineer ix. Cloud Support Engineer, EMEA x. Technical Cloud Support Engineer, EMEA xi. Technical Security Support Engineer - Phantom - EMEA

33) The business title may reflect the seniority and level of experience or a focus on particular products (e.g. Cloud or Phantom) but they could be customised and negotiated and therefore were not used consistently. The fundamental role of all of the Support Engineers was to provide technical assistance, troubleshoot and resolve customer problems with the Employer’s products. When a customer reported a problem, this came directly to the Customer Support Organization and was recorded as a customer case. A case was generally routed to the next available engineer in the EMEA region, based on skills and availability. They worked directly with customers and all these employees needed to have technical skills and a deep understanding of the product they worked with.

34) Ms Christensen’s understanding of the Union’s proposed bargaining unit was that it comprised the Support Engineers, 19 of whom currently reported to the Senior Technical Support Manager and 18 of whom reported to the Technical Support Manager. However, a new Manager was recently recruited who would soon be re-arranging reporting lines so that some of the Support Engineers reported to him. All three of these managers reported to the Director, Customer Support EMEA, who directly reported to Ms Christensen.

35) The Employer raised the issue that the Union’s proposed bargaining unit included all except two of the Technical Support Engineer employees, who, amongst the varying business titles, was included in the term “Support Engineer”. These two employees carried out the same role as the those in the Union’s proposed bargaining unit but had a different reporting line ^{[footnote 3]}. They shared the same job profile as the other Technical Support Engineers or, as the Union described, as Support Engineers. The reasons these two workers had a different reporting line was because they were employed as a consequence of the acquisition of new products. This situation was likely to change in the future when the systems had been integrated and these two employees had acquired experience of the wider range of the Employer’s products. A line management change, following acquisitions had occurred before. Splunk was a rapidly expanding organisation and future acquisitions were likely. This type of movement could therefore happen again when other engineers joined the Company. Therefore the focus of the appropriate bargaining unit should be placed upon the nature of the work being carried out which, in its view, was not the approach the Union had taken.

36) Aside from the employees already identified within the Union’s proposed bargaining unit, there were other employees that fell within the same job profile as the “Technical Support Engineers”. These employees were working alongside those in the proposed bargaining unit and performed similar roles, with technical elements that placed them within the same job profile, and who worked in a closely knit team. They were:

i) “Technical Support Account Manager” (“TSAMs”), were on the same pay scales and employment terms who were functionally integrated with the Support Engineers when dealing with customers in relation to specific cases or repeating issues. The TSAMs worked seamlessly with the support engineers to address customer problems;

ii) The “Escalation Manager” and two “Senior Incident Commanders”, worked with Support Engineers too. These were technical roles which also involved customer contact and incident management skills;

iii) The Support Readiness Cloud Specialist was a new role created this year which also required technical skills. There was also the Support Technical Enablement Manager although this role was becoming redundant on 15 January 2021;

37) The Cloud Operations Change Management Consultant was mapped differently and had a job profile of Systems Integration Consultant, which was reflected by the different nature of the role to the other roles within Global Support in the UK. Aside from this role, all the job roles i - iii above and the jobs within the Union’s proposed bargaining unit cut across the existing pay structures. The job levels for these roles were determined relative to each other within the job profile on common pay scales. Radford provided pay benchmarking data for each job profile which gave a market pay range (minimum, maximum and mid-point) for each job level within each role. Updated data was obtained on an annual basis which was used to set a pay range for the role. It was important for the Employer and effective management to maintain consistency and equity so that people doing equivalent roles, within the job levels within their job profile, were paid according to the same pay range and those pay ranges ensured that pay was in line with and competitive with market pay in the UK. Collective bargaining only for the Union’s proposed bargaining unit would cut across those pay bands and be wholly inconsistent undermining the legitimate management objective of achieving pay consistency for employees engaged in like work. This would present particular difficulties when the Union’s proposed bargaining unit not only cut across pay bands but did so for roles which were integrated and working closely together as a team.

38) In her statement, Ms Christensen explained at length the details of the Annual Pay Cycle. Her budget extended beyond the UK. The overall budget for salary increases was set with a budget allocated to each Division including the Global Support function. With regard to the Bonus Scheme and Restricted Stock Units (RSU), Ms Christensen explained the existing plans and how the equity awards formed part of the same annual pay cycle.

39) Ms Christensen explained the way in which the budget was cascaded down through management to consider the appropriate reward increases for employees. The managers of the individual employees reviewing the pay of their staff within each job profile, to decide (i) whether to adjust their pay within the job pay range and by how much, and (ii) whether the performance is exceptional and justifies an award of equity. But that is in the context of the budget allocated to them for that purpose.

40) This pay system was effective management as it enabled the Employer to reward individual performance whilst at the same time maintaining the consistency of the pay ranges for the levels within a job profile. Collective bargaining for the proposed bargaining unit would cut across these pay structures in a way which would undermine consistency and distort the allocation of budget within Global Support in the UK, which in turn would present particular issues when the proposed bargaining unit cut across Global Support in the UK with employees working closely together as an integrated team on the same pay scales .

41) Ms Christensen, underlined how, practically, collective bargaining on pay for the proposed bargaining unit would not work and would lead to potential unfairness and disaffection for other employees, within the same job profile and the same levels, who were not part of the unit. This was the problem which Lord Justice Underhill in Lidl, para 38, identified of a small island of recognition in a sea of non-recognition.

42) Holiday entitlement and other terms and conditions were consistent across the UK, other than for out of hours working which reflected specific needs. Collective bargaining for the proposed bargaining unit on hours and holiday would be inconsistent with effective management in that it would lead to inconsistency in these terms between employees within the unit and other employees within the UK, specifically those within the same job profile and on the same job levels.

12. The Employer’s proposals for an alternative bargaining unit

43) The Employer offered the same reasoning for its proposed bargaining unit as it did for its objections to the Union’s proposed bargaining unit. The Employer proposed a bargaining unit comprising “all UK based non-management employees within the Global Support organisation with the job profile of Technical Support Engineer”. Its proposal would currently include all the roles which included “Support Engineer” within the Business Title (39 employees) but in addition, would include all the employees who had the same job profile and were on the same pay scales.

44) This would mean that collective bargaining would cover the employees with the same job profile within Global Support in the UK on the same pay scales. In this way the Employer could ensure that there was consistency in approach when maintaining these pay scales, and their relative position, for employees with the same job characteristics, thereby avoiding the risk of resentment and dissatisfaction within this group of integrated employees. The Employer stated that they were integrated as they all engaged in working closely together to support the same customers. The Employer contended that as its definition was based upon the job profile, it was capable of being clearly defined within its structures and was not susceptible to the vagaries of business title or changes in line management which in a rapidly growing dynamic business was common.

45) Its proposal was less disruptive than attempting to distribute a budget across several groups of workers. There would be a clear budget for the negotiation of pay increases for the bargaining unit as a whole - bargaining would therefore be on the basis of the same allocated budget and ensure fair treatment;

46) The Employer contended that its proposal would reflect common characteristics between the members of the bargaining unit as they:

i) all had technical roles involving supporting customers in a post-sales environment;

ii) all were based in the same locations (London and Reading);

iii) all worked closely with each other on a day to day basis;

iv) all had common core working hours and (in the case of some Support Engineers, Incident Commanders and the Escalation Manager) were in roles where some weekend working may be required;

v) all had holiday and other terms and conditions that were consistent.

47) The Employer’s proposed bargaining unit would comprise all the UK based employees within the Global Support budget for the purposes of salary, bonus and RSUs, with the exception of the Cloud Operations Change Management Consultant who had a different job profile.

13. Summary of the Union’s Response to the Employer’s Case

48) For the avoidance of doubt, the Union clarified that it considered that the two employees referred to in paragraph 11 of this decision and whose business titles included “Support Engineer” to fall within its proposed bargaining unit on the basis that they provided direct, technical assistance to customers. The Union stated that to allow for flexibility whilst avoiding fragmentation of the bargaining, it was appropriate for all staff working in ‘Support Engineer’ roles on UK contracts to be in a single bargaining unit.

49) The Employer’s case was not accepted by the Union. In its view the Employer was “down playing” the importance of the business title defining the functional role of the employees within its proposed bargaining unit. Reiterating, the Union stated that those employees whose job titles included “Support Engineer” constituted a well-defined, cohesive and discrete grouping within the Employer’s UK workforce with the same or similar job function; namely those members of the workforce that fixed technical issues for customers.

50) The Union did not accept that its proposal “risked undermining the commonality of approach to persons with the same job title or function” as per the CAC in CWU v MCI (TUR1/482) (2005). On the contrary, the Union believed that it enforced commonality of approach to persons with the same business title, reflecting their function.

51) The Union also disputed the Employer’s assertion that an employee’s business title “could be negotiated or personalized”. None of the employees within its proposed bargaining unit had negotiated the inclusion of the words “Support Engineer” within their business title, nor had any evidence been provided by the Employer that this happened in practice. Indeed, it was not known by the members of its proposed bargaining unit that they could do this.

52) The Union contended that the Employer used business titles themselves to organise their business both internally and externally for example in their Job Advertisements and in the employees’ Employment Contracts but, “Job profiles” were not included within the various organisation charts thus far provided by the parties.

53) The Employer had raised within its submissions the case of TGWU and Royal P & O Nedlloyd (TUR1/400/04, 9 February 2005) regarding the need to consider how an employer’s business organisation functions in practice, and how the employer “has divided its operations on the basis of functionality”. However, within the Employer’s own organisational charts, operations had been divided on the basis of functionality, and the Employer had identified each role in its structure on the basis of business title. The Union considered this to be compelling evidence for the compatibility of its proposed bargaining unit (as it was based on business title), with effective management.

54) With regard to functionality, the Union contended that employees whose business titles included “Support Engineer” differed from those employees the Employer was seeking to include in its bargaining unit. Those with business titles including “Support Engineer” fixed the technical issues themselves, but, as pointed out in Ms Christensen’s statement, the other employees worked in roles that required them to work closely with those in the Union’s proposed bargaining unit to “work with the support engineer to resolve the issues” “they do not actually fix the technical issues themselves”, demonstrating that the Union’s proposed bargaining unit fixed technical issues, whilst the other roles were chiefly responsible for the allocation of cases to support engineers, building and maintaining customer relationships, and high-level management of incidents. The Employer’s claim that its slide entitled “Customer Success at a Glance” “illustrated the way the roles work together to deliver customer support”, according to the Union was to the contrary, also an illustration of the clear differences in job function between Support Engineers, TSAMs and Incident Management.

55) The Union also disputed Ms Christensen’s statement that the Union’s proposed bargaining unit focused on “particular products”. The Union stated that it did not seek to exclude employees based upon the products for which they provided technical support. Neither did the Union use a definition which was additionally based on the line management of the employees. The Union was consistent in informing both the Employer and the CAC that its proposed bargaining unit consisted of all UK Employees within the Support Organisation whose job title includes “Support Engineer”. At the time of its submission to the Panel, those employees within its proposed bargaining unit (other than the two referred to in paragraph 11 above) were managed either by one of two Technical Support Managers. Notably, since its submission, the Employer had moved some of those employees under the line management of a third Technical Support Manager but this did not however change the Union’s proposed bargaining unit.

56) In respect of the Employer’s submission that a likelihood of “future acquisitions” should be considered, The Union stated that the CAC must determine the issue on the basis of the circumstances as they exist at the time when the decision fell to be made. There were other procedures that could be invoked if and when there was a material change of circumstances (UCATT and Critical Path Associates (TUR1/177/02, 11 July 2002).

57) In rebuttal to the Employer’s case that the Union’s proposed bargaining unit cut across roles with similar functions, the Union referred the statement of Mr. McGarry. It made little sense to the Union for the Employer to object to its proposed bargaining unit in favour of another bargaining unit which also included a relatively small number of additional roles. Mr McGarry’s statement provided detail on how the roles the Employer was intending to include with the Union’s proposed bargaining unit did not fit so easily.

i) The Technical Support Engineer (TSE) role was fundamental to the support organisation fulfilling the requirements of the support offering that customers had purchased. Cases were assigned out to an engineer automatically with the engineers owning and working on many cases simultaneously. In most cases TSE’s worked alone on their assigned cases across many different customers. The TSE provided a solution to the customer issue either directly in the form of a fix in the case of a Splunk Cloud hosted service or indirectly by instructing the customer.

ii) The Technical Support Account Manager (TSAM) role was a relatively new role, the introduction of which coincided with the aforementioned “Support and Renewals” alignment in the latter part of 2018. This expanded from the initial single head count in EMEA to five in late 2019/early 2020. TSAM’s brought a more personal “high-touch” support experience that was not possible for the engineers to provide who always had a backlog of cases to work through. TSAM’s were assigned to high value and strategic customers. They represented their assigned customer’s interests internally. In addition Mr McGarry was unaware of any TSAM in the UK who had completed the Splunk Architect certification.

iii) The Incident and escalation team in EMEA began with a single Incident Commander in July 2019, which had since filled out with a further Incident Commander and an Escalation Manager. This team’s focus was predominately on driving high profile issues through to resolution, particularly those that would likely catch the attention of leadership. Incidents would generally be priority 1 cases linked to service outages for high profile or multiple customers. Escalations could be for a number of reasons, historically these tended to be when support cases were preventing a sale or renewal, but the process was currently undergoing an overhaul. Unlike TSE’s they did not directly fix the issue themselves but managed the process to a resolution.

iv) In some cases the work of the TSAM’s and the Incident/Escalation team could conflict with the Support Engineer role. These other functions all had a much narrower scope than the engineers who would be juggling many cases for many different customers at once. The Union contended that it was not uncommon for stakeholders such as these to apply extra pressure to the Support Engineer handling the case, effectively “cracking the whip” in order to further their differing objective.

v) The “Support Readiness Specialist – Cloud” and the “Support Technical Enablement Manager” roles were intended to provide the resources, knowledge and training that the engineers needed to carry out their function. The former was still a very new role and its scope remained unclear, while the latter was now redundant as the employee had left the company.

58) In response to the Employer’s case that the Union’s proposed bargaining unit would cut across existing pay structures, the Union stated that this was true of most bargaining units put forward by unions within the statutory recognition process. Most medium to large scale employers would have a standardised approach to job evaluation which extended beyond a proposed bargaining unit. The Union disputed the Employer’s claim that its whole pay structure was designed to ensure consistency across the organisation. There were exceptions to this when it came to the role of Support Engineer. ‘Support Engineer’ bonuses were based upon their success with “ticket targets”. Ticket targets were specific to the Support Engineer role and were in part measured for bonus payments on measures such as how long cases are waiting for the engineer; the number of cases closed during the quarter; whether the customer was happy with the handling of the case and did the engineer meet the target for responding to the case in the first instance.

59) Furthermore, the Employer had stated that the same bonus arrangements applied across “non-sales employees” (i.e. to those employees outside both the Union’s and the Employer’s proposed bargaining units which meant the Employer’s proposal was no more appropriate in this regard.

60) With regard to the Employer’s claim surrounding the issue of one pay budget being cut across and negotiated on with separate groups, the Employer’s proposal would pose the same issues as presumably the Director, Customer Support, EMEA paid all those within his branch of the organisation and which extended beyond the Employer’s proposed bargaining unit. Again, the Employer’s proposed bargaining unit could be no more appropriate than the Union’s proposal in this regard. Further, it was stated by Ms Christensen that she decided the pay budget to allocate to the Director, Customer Support. EMEA (in the UK) for ‘Support Engineers’ as well as that for his counterpart in the US for the two individuals referenced in paragraph 11 above. However, given the ultimate decision maker was Ms Christensen, the Union did not consider that this rendered the ‘pay budgeting’ systems in place, or pay structures, incompatible with effective management. In any event considerations of how much budget was allocated to each Division was an internal accounting decision, taken to its conclusion by Ms Christensen’s determination as to how the business was financially run. This was not relevant for the CAC’s consideration.

61) Given that holiday and other terms and conditions were consistent across the whole UK workforce, the Union did not see why this would make the Employer’s proposed bargaining unit any more appropriate than the Union’s. This was the case when it came to location too. Both proposals encompassed workers in the same locations, London and Reading, and both left out employees who worked in these locations.

62) The Union was not in dispute that workers outside its proposed bargaining unit worked closely with the workers the Employer was seeking to include in its proposed bargaining unit, but it was true to say they also worked with many other employees that were not included within the Employer’s proposal e.g. Tech Ops, the wider cloud service, Sustaining (or Customer Managed Platforms), Development, Customer Success Managers, Sales Engineers, and Professional Services Consultants. In this regard, the Employer’s proposal was less coherent than that put forward by the Union.

63) The Union disputed the Employer’s case that the employees in the Union’s proposed bargaining unit were on the same core working hours as the workers within the Employer’s proposal. Indeed, Ms Christensen identified the ways in which the working hours of the Support Engineers differed from those in the Employer’s proposal. Incident Commanders and Escalation Managers did not follow the same shift pattern. TSAMs only worked weekends on an ad hoc basis, whilst the Support Readiness Cloud Specialist and Support Technical Enablement Manager “generally do not have to work at weekends”.

64) In conclusion, the Employer’s case that the Union’s proposed bargaining unit may lead to “inconsistency”, was accepted by the Union. However, it was also the Union’s position that any bargaining unit which did not account for one hundred percent of staff may lead to some form of “inconsistency”. In this regard, the Union did not see the Employer’s case as an objection to the Union’s proposed bargaining unit, but rather an objection to collective bargaining.

14. Summary of the Employer’s responsive submissions

65) The Employer maintained that the fundamental conflict between the parties was that the Union’s proposal did not compose of a distinct group of workers working on customer support cases with similar characteristics. The Employer reiterated its arguments in respect of the matters listed in paragraph 19B but made the following additional points.

66) Firstly, whether or not the two workers reference in paragraph 11 above were included within the Union’s proposal, the Union’s proposed bargaining unit was not compatible with effective management. For the avoidance of doubt, the Employer had acquired SignalFX and VictorOps over 12 months ago and it had not been said that these two workers would be integrated into the same reporting lines as the engineers in the proposed bargaining unit. All that had been said was that they would eventually be integrated into the same team. The time scale for this was as yet uncertain.

67) The Union’s attempt to draw factual distinctions between the Support Engineer roles and the other job roles in Customer Support were not accepted by the Employer. The supporting documents provided by the Union were out of date or related to jurisdictions other than the UK. The job description attached for a support engineer working on SignalFX was not true of any of the support engineers in the proposed bargaining unit. All of the job descriptions provided were for roles outside the UK i.e. Australia, Poland and the United States of America.

68) The Employer maintained that the “Technical Support Account Manager” (“TSAMs”), the “Escalation Manager” and two “Senior Incident Commanders” were job roles with the same job profile as the job roles in the proposed bargaining unit working on the same incident cases and escalated cases. “Tickets” were not only assigned to the proposed bargaining unit as stated by the Union. The integrated working of the various job roles within the Customer Support function in the UK was underlined by the fact that whilst it was true when a support case was opened (a “Ticket” was issued) one of the proposed bargaining unit or one of the two Support Engineers referred to in paragraph 11 above, would be assigned to the case. However, those working to resolve the issue may include others, including those in the wider group of job roles with different titles, who were identified as working within Customer Support in the UK. There were a number of inaccuracies in the Union’s submissions regarding the other roles within the Customer Support function in the UK as follows:

15. Technical Support Account Manager

69) It was not correct that TSAMs did not own customer support cases or fix issues themselves. As part of their role, TSAMs did own “Tickets” themselves, even if they were initiated by one of the “Support Engineers”. This was the case with long running issues, planned work, or cloud change requests. TSAMs would offer technical advice and advice on best practices. The Union’s statement that “TSAMs do not operate under the same processes and procedures as “Support Engineers” was broad and unsupported. At the least TSAMs would update cases in the same way as support engineers, they would follow the same processes to engage with Cloud Operations or the Engineering team. In so far as engaging with HR processes, they all followed the same processes and procedures;

70) The TSAM role was clearly a technical role, albeit that their primary skill was to ensure customer technical health. TSAMs had to have technical capabilities and had the same minimum technical certification required of “Support Engineers”. They had to study and pass the following product certifications: User (Fund 1), Power User (Fund 2) and Admin. TSAMs were required to pass up to Splunk Admin certification which required technical expertise and familiarity with Linux OS.

71) “Tickets” could be owned by TSAMs for the customers they were assigned to, they also serviced other customers based on customer need or the escalation of issues;

72) Whilst it was correct that TSAMs were not scheduled to work weekends they were often required to do so as the need arose. In so far as the implication was that the “Support Engineers” performed “scheduled out-of-hours work” that was not an accurate description. The contractual hours of all the “Support Engineers” were not the same in this respect. TSAM was not a people/line managerial role, they managed customer accounts not fellow employees. They reported to the Director, Customer Support, EMEA, not India.

16. Escalation Managers and Incident Commanders

73) It was a simplification to say that the Escalation Manager role was not a technical role. It was not recruited on the basis of specific technical skills but the role required an employee to have a good technical understanding in order that they could have credible technical conversations to ask the right questions of the customer in order to work together with the “Support Engineer” and other internal teams, on escalated cases. This role was similar to the skill set required of the Incident Commanders who were also engaged when there was a support case that required additional levels of visibility and a high level of communication and coordination skills. Incident Commanders were partnered with the “Support Engineers”, and other internal teams, to help resolve a customer reported issue.

74) The Union’s observation regarding the other roles having a different reporting line to those roles in the Union’s proposal was also a simplification. The TSAMs had a solid reporting line to the Director, Customer Support EMEA. All of the above roles and the Support Engineers had a dotted reporting line to the same director although they may have different business reporting lines. The dotted line reporting reflected the Employer’s matrix structure and the fact that all of these roles worked together to resolve customer issues or “Tickets”. It was not the case that the “Support Engineers” worked in an isolated silo on their own in relation to “Tickets”. The Union’s submissions did not accurately reflect the functional integration of the roles with other workers within Customer Support in the UK.

75) The Employer refuted that the roles in the proposed bargaining unit were interchangeable. Whilst attempts were made to cross train employees within the proposed bargaining unit, they presently had their own specialities and the roles were not largely or even easily interchangeable.

76) It was not clear to the Employer what was meant by “transparent pay structure”. There was a clear pay structure as addressed in the Employer’s primary submissions.

77) The suggestion that there was some distinction between the proposed bargaining unit and others in the same job profile in the UK in relation to management roles was fundamentally wrong. The submission focused again on the business title, which may use “manager” in the sense of customer account manager rather than people management. None of the TSAMs, had a true line management role which in the Employer’s view, underlined the fallacy of the proposed bargaining unit in basing it on words within a business title.

78) The Employer provided more detail on the frequency of changing management within the Company. One person that had recently joined as a line manager was about to have a team of “Support Engineers” report to him. One other worker (the Technical Support Enablement Manager) outside the proposed bargaining unit reported to one of the Technical Support Managers. Further as of the 1 December 2020 a Support Engineer who used to report to one of the UK Technical Support Managers would now report to the Technical Support Manager who managed the Support Engineers in Poland.

79) The Union misstated the position on the service rotas for the employees within the Union’s proposed bargaining unit. Until the 15 November 2020 all Support Engineers worked the same contractual hours, over a working week Monday to Friday. There were no “shift rotas”. Some support engineers volunteered for weekend on-call but some support engineers never did any on-call. From the 15 November 2020, 26 of the support engineers moved to a “shift-rota” model. This group now worked a five day shift that could, but did not necessarily, include a weekend day. The daily hours were broadly the same, 8am to 4.30pm or 9am to - 5.30pm, one support engineer had requested to work 7am – 3.30pm. The shift rota was to be reviewed every six months. There were 11 support engineers that were not on any “service rota” model. They worked a normal Monday to Friday, 9am to 5.30pm week as they always had. They were given the choice, prior to the 15 November 2020, whether to remain on their current contractual terms or to move to the shift rota model. They decided to remain on their standard contractual terms. The option of moving to the shift rota model was no longer open to them. Therefore it was not true to say that all the workers in the proposed bargaining unit were subject to the same shift rota or even then the same terms and conditions on this issue.

80) In support of this erroneous statement the Union had attached a consultation document. This, however, was the “kick-off” Deck for the Global Coverage change (i.e. the change to the shift rota model). It presented that all support engineers would be part of the new shift rota model but in fact this was not how it had turned out following an extensive consultation process. The information was not then an accurate reflection of the service rotas or the program that was introduced. These were slides from one of many decks that showed the proposed program at a point in time. It was not the final program that was implemented.

81) The amendment letter was not signed by all the support engineers. Only those who Opted-In to the Global Coverage/shift rota model signed the amendment letter (26 of the PBU); the remaining 11 support engineers have continued on their standard employment contract with their standard contractual hours.

82) It follows then that it was equally not true to say that all the employees outside the proposed bargaining unit were subject to separate working arrangements. Those employees within the proposed bargaining unit who chose to remain on their existing contracts continued to have the same working arrangements as employees in the same job profile outside the proposed bargaining unit who were not rostered to work weekends.

17. Considerations

83) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate.

84) Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

85) The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written submissions and witness statements.

86) In this case there was some contention at the hearing as to which employees are contained in the proposed bargaining unit. The Employer made the point that the position of the Union is ambiguously stated, as regards the inclusion or exclusion of two specific employees ^{[footnote 4]}. It further argued that the change of position on the part of the Union on the issue of these two employees suggests that the group of workers, which the Union believes to be suitable for inclusion in the bargaining unit, demonstrates that the proposed bargaining unit is not sufficiently clear. In the view of the Employer, this equivocation on the part of the Union entirely undermines the Union’s argument that its proposed bargaining unit is a clear and distinct group of workers and therefore ‘appropriate’.

87) It is the judgement of the Panel that the Union’s exclusion and subsequent inclusion of these two employees does not render the proposed bargaining unit as ‘vague’ or ‘unclear’. The original application contends that the proposed bargaining unit should consist of all UK employees within the Support Organisation whose job title includes ‘Support Engineer’. The Union and Employer both accept that the two employees are UK employees within the Support Organisation and that they have the job title ‘Technical Support Engineer’. The Union also accepts that these two employees came into employment of the Employer by way of recent acquisition and so may not, as yet, be fully integrated and aligned to the company processes. Accordingly, these two employees may have certain characteristics, such as line management reporting, that may differentiate some of their work related tasks from the other established Technical Support Engineers within the company. At first instance, these two employees were not known to the Union and not captured within the proposed bargaining unit. Later, after considering further information obtained in the course of its application for recognition, the Union came to the view that both employees met the description for inclusion.

88) In the Panel’s view, the proposed bargaining unit is a readily identifiable grouping within the Employer’s workforce and all employees in the proposed bargaining unit share similar job characteristics and the same job title ‘Technical Support Engineer.’ The Panel therefore accepts that the proposed bargaining unit, including the two employees referred to above, is a reasonably clear and sufficiently coherent group of workers who can be described as UK employees within the Support Organisation whose job title includes ‘Support Engineer’.

89) In accordance with paragraph 19(2) of the Schedule, the Panel must determine whether the Union’s proposed bargaining unit is appropriate. This is the overriding requirement under Paragraph 19B(2) and relates principally to determining the issue of what is ‘appropriate’ in terms of suitability for collective bargaining for a group of workers on the issues of pay, hours and holidays as per Kwik Fit (GB) Ltd v CAC [2002] ICR 1212.

90) The assessment of the Panel is that the proposed bargaining unit is appropriate in the sense that it is a suitable unit for negotiating on behalf of a group of workers sharing similar job characteristics. In the view of the Panel, the proposed bargaining unit can reasonably be said to be appropriate for the purpose of negotiating terms and conditions for this readily identifiable group of workers. The workers share common characteristics and can be easily distinguished from other workers outside the proposed bargaining unit by reference to several shared characteristics including location, job title, job description, contractual terms and conditions, similar technical support job functions and common operational processes and procedures.

91) The Employer argued that the coherence of the workers within the proposed bargaining unit is entirely undermined by the fact that other roles in Customer Support in the UK have the same or largely similar characteristics and share similar pay scales hours and holidays. Further, that all roles within Customer Support have a ‘job profile’ (as opposed to ‘job title’) which includes the term ‘Technical Support Engineer’. Therefore, the Union’s attempts to draw distinctions between these similar workers outside the proposed bargaining unit is not accepted. However, the Panel accepts the Union’s argument that employees whose job title includes ‘Support Engineer’ provides a well-defined grouping within the workforce with a similar job function, namely those workers that fix technical issues for the Employer’s customers. Whilst the submissions of the Employer emphasise the unimportance of ‘job title’, it is true to say that the job title of these workers is a visible and readily identifiable measure of the coherence of the group. Those outside the bargaining unit may share some of the characteristics of these workers but they do not share the same job title or the same function of direct customer facing technical support. Accordingly, it is the decision of the Panel that this grouping is sufficiently coherent for the purpose of collective bargaining.

92) In terms of assessing what might reasonably be said to be an ‘appropriate’ proposed bargaining unit, the Panel must determine if it is compatible with effective management. The Employer and the Union argue two differing interpretations of assessing compatibility with effective management:

93) The Employer argues that the proposed bargaining unit is not compatible with effective management because it is disruptive to one of its core management strategies; the equal application of a global job evaluation matrix and a pay structure which enables ‘job levelling’. This approach classifies jobs according to a focus on ‘job profiles’, as opposed to ‘business titles’. This strategy is informed by the Radford system, which is utilised by the Employer to ensure consistency in its pay practices both internally and with reference to the external market. The Employer contends that the integrity of this system is very important to effective management of a rapidly expanding global organisation. The classification of the workers in the proposed bargaining unit cuts across this strategy because other positions within the same ‘job family’ share a similar job profile to the Technical Support Engineers. The separation of Support Engineers from the rest of these workers will frustrate the job levelling strategy, make effective management difficult and lead to inequality and disharmony.

94) The Union argued that compatibility with effective management does not mean that one must establish what is more convenient or most desirable. It further stated that it is well established in law that the Panel cannot reject a proposed bargaining unit put forward by the Union simply because it forms a view that there is a more appropriate bargaining unit nor is it the Panel’s task to make distinctions as to what might be compatible with the most effective management as per the principles established in the Kwik Fit case. Further, the Union argues that the argument advanced by the Employer about what is incompatible with effective management of its operations is not a compelling argument as to why the proposed bargaining unit is an unworkable vehicle for collective bargaining for a group of workers but is in fact an objection to the principle of collective bargaining itself.

95) The Panel has concluded that, for the following reasons, the Union’s proposed bargaining unit can reasonably be said to be compatible with effective management:

a) The Employer’s aim of a collegiate approach across its operations is a common aspiration of an employer but this aim is not necessarily inconsistent with union recognition.

b) Contrary to the argument advanced by the Employer, it is not axiomatic that the proposed bargaining unit would cause a divergence of terms and conditions and in any event, if this were to become an issue of contention, the remedy would be in the Employer’s hands to achieve a workable balance through the medium of collective bargaining or agreement.

c) It is not accepted that the proposed bargaining unit itself would make effective management difficult. The Employer contends that it would be required to afford any gains of collective bargaining to other workers within its Global support teams and thus cut across its carefully balanced job evaluation and human resources strategy. Bargaining and negotiations over pay and conditions can be effectively managed at the negotiation table. Many Employers employ diverse groups of both unionised and non-unionised workers and indeed many employers engage successfully with more than one trade union within its workforce. Aside of the aspiration to become more homogenised, there has been no compelling evidence that the Union’s proposed bargaining unit would be incompatible with effective management across the Employer’s operations.

96) The Panel has also considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the bargaining unit to be compatible with effective management. The views of the Employer and the Union, as summarised above, have been fully considered. Further:

97) In relation to existing national and local bargaining arrangements, there are no bargaining arrangements of either description in place in any of the Employer’s operations.

98) In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, this relates specifically to fragmentation of collective bargaining not fragmentation between bargaining units or fragmented collective bargaining as per Underhill LJ in Lidl Limited and CAC v GMB [2017] IRLR 646 CA.

99) The Panel finds that the proposed bargaining unit is neither small nor fragmented and it would not lead to proliferation. The proposed bargaining unit would be the only bargaining unit within the Employer’s UK workforce. In terms of potential fragmentation between those inside and those outside the proposed bargaining unit, the Panel does not accept the argument that the bargaining unit as proposed would undermine or prevent the Employer’s desire or ability to exercise a commonality of approach to other workers outside the proposed bargaining unit. Collective bargaining does not guarantee outcomes and it is not dictatorial to the Employer’s decision making.

100) The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the unit to be compatible with effective management. For the reasons stated above the Panel believes the Union’s proposed bargaining unit is compatible with effective management and can be said to be an appropriate bargaining unit within the Employer’s undertaking.

101) The Panel notes that the Employer has put forward an alternative model as a bargaining unit but the Panel is not required to consider the merits of any other potential units given that the Panel has determined that the proposed bargaining unit is appropriate.

102) The Panel has had regard to the object set out in paragraph 171 of the Schedule in reaching its decision.

18. Decision

103) The appropriate bargaining unit is that proposed by the Union in its application and for the avoidance of doubt includes those Support Engineers, currently two in number, who provide support for two specific products, SignalFX and VictorOps and who currently report to line managers in the US.

Panel

Mrs Sarah Havlin - Panel Chair

Mr Rob Lummis

Mr Paul Noon OBE

16 February 2021

19. Appendix - Names of those who attended the hearing

For the Union

Declan O’Dempsey - Counsel

Matthew Whaley - Unite Regional Officer, London & Eastern Region

Adam Lambert - Unite Regional Legal Officer, London & Eastern Region

Daniel McGarry - Splunk Employee

For the Employer

David Reade - Counsel

Paul Harrison - Solicitor

Monica Kurnatowska - Solicitor

Vanessa Hogan - EMEA Counsel

Liz Cane - Senior Director HR EMEA

Crystal Christensen - VP, Global Support

Matt Brown - Global VP HR

Rory Tredwell - Trainee Solicitor

1. This was later corrected by the Employer to read Europe, Middle East and Africa and we have used the corrected abbreviation EMEA in the remainder of this decision. ↩

2. See paragraph 4 above. ↩

3. See paragraph 11 above. ↩

4. See para 11 above ↩