Decision

Acceptance Decision

Updated 11 January 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1243(2021)

11 January 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

Unite the Union

and

The Mayhew Home

1. Introduction

1) Unite the Union (the Union) submitted an application to the CAC dated 8 December 2021 that it should be recognised for collective bargaining purposes by The Mayhew Home (the Employer) for a bargaining unit comprising “All employees working for the organisation who are not Key Management Personnel, and who do not work internationally”. The location of the bargaining unit was given as Mayhew Animal Home, Trenmar Gardens, London, NW10 6BJ and any home based or remote/peripatetic workers within the proposed bargaining unit. The application was received by the CAC on 8 December 2021 and the CAC gave both parties notice of receipt of the application on 9 December 2021. The Employer submitted a response to the CAC dated 16 December 2021 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mr. Martin Kirke and Ms Claire Sullivan. The Case Manager appointed to support the Panel was Kaniza Bibi.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 22 December 2021. The acceptance period was extended to 14 January 2022 in order to allow time for the parties to comment on the results of a membership check and for the Panel to consider said comments before arriving at a decision.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had made a request for recognition to the Employer on 19 November 2021. The Union stated that the Employer had not responded to the request. A copy of the Union’s letter of 19 November 2021 was attached to the 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 answered “No”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 80. The Union stated that there were 45 workers in the proposed bargaining unit, of whom 25 were members of the Union. When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union said that it believed that a majority of employees in the bargaining unit were members of the Union. The Union also stated that an online petition had been circulated for staff who were not members of the Union in which signatories affirmed “I support recognition of Unite to conduct collective bargaining on pay, hours and holidays”. The Union said that 10 signatures had been collected; some signatories had subsequently joined the Union and had been included in its membership figure but seven remained non-members. The Union said that evidence could be provided in the event of a check of the level of membership and of support for recognition.

8) The Union stated that the reason for selecting the proposed bargaining unit was because UK based employees who were not members of Key Management Personnel were a clear and distinct group of employees who had expressed a desire for collective bargaining via the Union. The Union said that Key Management Personnel were defined in the Employer’s annual accounts as the senior management team of the organisation. The Union said that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the bargaining unit, the Union answered “No”.

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 8 December 2021.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 19 November 2021. When asked what its response was, the Employer stated that no response had been given.

11) The Employer confirmed that it had received a copy of the Union’s application form from the Union on 8 December 2021 by email. The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit from the Union and that it did not agree the proposed bargaining unit. The Employer said that it did not agree the proposed bargaining unit because it was opposing union recognition as it was not convinced there was the requisite support for recognition, nor that support would be maintained.

12) The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as defined in the Union’s application but did not, when asked, state what this figure was in this section of the response form. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer said that it had not seen any evidence to support the figure given in the Union’s application and that this should be provided. When asked 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 the Union had not provided sufficient evidence of likely majority support and said that even if the membership level were at the level suggested by the Union, that would not be evidence of likely majority support for recognition. The Employer said that the evidence should be provided. The Employer said that there were 51 workers in the UK including five Key Management Personnel who the Union proposed to exclude from the bargaining unit. The Employer said that at the time of a recent industrial action ballot union membership had stood at 45% of the workforce and it was clear from the results of the ballot that 33% of the union members entitled to vote did not vote in favour of strike action or industrial action short of a strike. The Employer said that this showed that there was not an appetite across the workforce. The Employer said that of the 21 union members entitled to vote in the industrial action ballot seven members either did not vote or voted “no” when asked whether they were prepared to take part in strike action and six members either did not vote or voted “no” when asked if they were prepared to take part in industrial action short of a strike. The Employer said that it did not consider that there was a long-term desire for union recognition and that the process for statutory recognition was a reaction to a redundancy process. The Employer said that its finances had been hit badly by the Covid-19 pandemic and that it had had no choice but to initiate a redundancy process, The Employer said that throughout the redundancy process, which had led to seven voluntary redundancies and two compulsory redundancies, staff had been treated with full transparency. The Employer said that a Union representative had informed the Employer at an all-staff Town Hall meeting that the Union had “no issues” with the redundancy process. The Employer said that even if the CAC concluded that there was the requisite appetite for recognition, collective bargaining would be impossible to manage due to the organisation of the charity. The Employer outlined the charity’s organisation ^{[footnote 1]} and said that it reserved the right to set out its position in full if the application were accepted.

14) The Employer answered “N/a” when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit and when asked if it had received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

15) To assist in the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit and of the Union’s online petition. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Union would supply to the Case Manager a list of its paid up members within that unit (including their dates of birth) and a copy of the online petition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 17 December 2021 from the Case Manager to both parties.

16) The information requested from the Employer was received by the CAC on 22 December 2021 and from the Union on 21 December 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

17) The list supplied by the Employer indicated that there were 48 workers in the Union’s proposed bargaining unit. The following job titles were listed:

• Animal Welfare Officer

• Cat Adoptions Officer

• Cattery Assistant

• Cattery Section Supervisor

• Cleaner

• Country Director - Afghanistan

• Database Officer

• Deputy Head of Welfare (Community)

• Digital Content & Communications Officer

• Director of Income & Engagement

• Facilities Officer

• Floating Animal Care Assistant

• Head of Cattery

• Head of International Projects

• Head of Kennels, Dog Adoptions & Fostering

• Head of Marketing & Communications

• Head Veterinary Surgeon

• HR Advisor

• Individual Giving Development Manager

• Kennel Assistant

• Marketing Assistant

• Night Care Assistant

• Night Staff

• PR & Media Officer

• Receptionist

• RVN

• Senior Digital Content Officer

• Senior Marketing Officer

• Senior RVN

• Student RVN

• Supporter Care Officer

• Trust & Foundations Manager

• Veterinary Surgeon

• Volunteer & Reception Co-Ordinator

18) The list of members supplied by the Union contained 24 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 24, a membership level of 50%.

19) The spreadsheet -petition supplied by the Union contained 10 names, of which eight were in the proposed bargaining unit, a figure that represents 16.67% of the proposed bargaining unit. Of those eight names, one was a member of the Union (2.08% of the proposed bargaining unit) and seven were non-members (14.58% of the proposed bargaining unit). The petition was submitted with an A4 sheet, which was headed with the Union’s logo and was set out as follows:

Unite the Union is asking your employer to recognise it for collective bargaining. We may have to show the Central Arbitration Committee that a majority of workers favour our application. If you want your employer to recognise Unite for collective bargaining, please add your name to the petition. Disclaimer This petition and your personal details will be kept confidential by Unite the Union and will be shared with the Central Arbitration Committee or ACAS only, who may use these to confidentially verify the level of support for our collective bargaining application. Your employer will not receive your details or a copy of this petition. The petition will be retained by Unite for the duration of the recognition campaign and any associated issues. None of the details you provide in this petition will be shared with management.

20) A report of the result of the membership and support check was circulated to the Panel and the parties on 22 December 2021 and the parties were invited to comment on the results of that check by close of business on 5 January 2022.

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

21) In an email to the CAC dated 23 December 2021 the Union stated that the Head Veterinary Surgeon and the Head of Marketing and Communications were Key Management Personnel and thus outside the Union’s proposed bargaining unit. The Union exhibited the Employer’s Annual Report and Accounts 2020 to substantiate this point. The Union said that it believed that the Director of Income and Engagement was also a member of the Key Management Personnel and therefore outside the bargaining unit. The Union said that this was a new position and so not included in the 2020 Annual Accounts but that restructuring documents from August 2021 confirmed that this role would be in the “Senior Management Team”, the internal term used to describe Key Management Personnel. The Union said that if the Director of Income and Engagement were not part of the Key Management Personnel it had reason to believe that the current postholder may be employed on an agency or self-employed basis and would not, therefore, be part of the Union’s proposed bargaining unit which covered only “employees”. The Union said that the Trust and Foundations Manager; Individual Giving Development Manager; and PR and Media Officer may also be employed on an agency or self-employed basis and therefore be outside its proposed bargaining unit. The Union said that if any of the points set out in this paragraph were accepted this would bring the Union’s membership density to above 50%.

22) The Union said that the final section of text which individuals who had signed its petition had been asked to put their names to had not been included in the report of the membership and support check. This section read “I support recognition of Unite as entitled to conduct collective bargaining on pay, hours and holidays”. The Union submitted that the check had established that the Union had at least 50% membership in the bargaining unit and demonstrated that a majority of such workers would favour recognition. The Union said that the seven signatures on the petition showed that some non-members would favour recognition too and emphasised that the petition was aimed at staff not already in the Union because membership was itself an indication of support for recognition.

23) In a letter to the CAC dated 5 January 2022 the Employer did not dispute that members of the union constituted at least 10% of the workers in the proposed bargaining unit but suggested that leavers may have been included in the Union’s list of members. The Employer said that when the Union had provided its membership list to the Employer it had provided a list of job titles and as some people had the same job titles as each other it was not possible for the Employer properly to verify the Union’s list but there were then 21 members and the Employer believed that leavers had been included. The Employer said that the Union now seemed to be saying that there were 24 members. The Employer said that it did not know if this was true and expected leavers may have been included in the Union’s list of members.

24) The Employer strongly disagreed 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. For the reasons set out in paragraph 23 above the Employer disputed that there were 24 members of the Union in the bargaining unit because the Employer believed that this figure included some leavers. The Employer also disputed that there were still 24 members as some staff had told the Employer that they had since terminated their union membership. The Employer said that of the supposedly 24 union members only one (4%) had signed the Union’s petition which demonstrated one of the Employer’s key points that the drive to unionise arose as an initial reaction to a (now completed) redundancy process and there was not actually an appetite for proper union recognition/collective bargaining outside of a small handful of staff. The Employer said that there were 60 staff members; in addition to the 48 on the list provided for the check there were 10 roles currently being recruited plus the CEO and Head of Finance. The Employer said that it believed that the base number when assessing whether the test had been met should therefore be 58 (the CEO and Head of Finance being excluded as “management”) as the empty roles would soon be filled. The Employer said that whether a base number of 48 or 58 was used, only eight people had signed the Union’s petition, a very small number, reinforcing the Employer’s expectation that there was not actually an appetite for proper union recognition/collective bargaining outside a very small handful of staff. The Employer said that there were multiple members of staff telling the Employer that they did not support the unionisation process and who agreed with the Employer that union recognition was not in the organisation’s best interests.

25) The Employer said that it had been working hard to modernise the charity and improve its chances of long- term sustainable service delivery, as part of which it had already planned the creation of a staff forum. The Employer said that the staff forum would “achieve the items” which it believed were the legitimate desires/expectations of its staff and also ensure that their voices were properly heard right the way to the top of the organisation whilst not resulting in the negative results the Employer believed would result from the Union’s involvement. The Employer concluded by reaffirming that the Board had decided, following detailed work and analysis, that recognising the Union was not in the charity’s best interests either in the short or longer term.

7. Considerations

26) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 4 above are satisfied. The Panel has considered carefully the submissions of both parties and all the evidence in reaching its decision.

27) The Panel is satisfied that the Union made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met

8. Paragraph 36(1)(a)

28) 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.

29) The membership check conducted by the Case Manager (described in paragraphs 15 to 18 above) showed that 50% of the workers in the proposed bargaining unit were members of the Union. ^{[footnote 2]} As stated in paragraph 16 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 notes the Employer’s concern that leavers may have been included in the list of members supplied by the Union. However, the Case Manager’s check was made by comparing the Union’s list of members with the list of workers in the proposed bargaining unit supplied by the Employer. The Panel is satisfied that this comparison provides a safeguard against the inclusion of individuals who did not fall within the proposed bargaining unit at the time of the check. The Employer also disputed that there were still 24 members within the bargaining unit as some staff had told the Employer that they had terminated their union membership. The Employer did not provide any documentary evidence in support of this contention and the Panel is content to rely, for the purposes of this decision, on the list provided by the Union. The Panel also notes the Employer’s submission that there are roles which were not included in the membership and support check because they were vacant at the time of the check and that these ten roles should be included for the purposes of assessing whether the statutory tests have been met. The Panel does not accept this submission and reminds the parties that the check is confined to workers - and members of the Union - who are within the proposed bargaining unit at the time that the check is conducted and that the Panel’s decision as to whether the statutory tests have been met is also made on this basis. The Panel further notes the Employer’s submission that it did not know whether the Union’s contention that there were 24 members within the bargaining unit was true. The Panel notes that the system of membership and support checks employed to determine whether the admissibility tests in paragraph 36 are satisfied relies on the good faith and honesty of both parties in supplying information. The Panel has received no evidence which leads it to suspect that either party has not acted honestly and in good faith in relating to this application.

30) For the reasons set out in paragraph 29 above the Panel has 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.

9. Paragraph 36(1)(b)

31) Under paragraph 36(1) of the Schedule, an application is not admissible unless the Panel decides that a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit.

32) For the reasons given in paragraph 29 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 50%. The Panel considers that, in the absence of evidence to the contrary, 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. The Employer submitted that there were multiple members of staff who had told the Employer that they did not support the unionisation process and agreed with the Employer that recognition was not in the organisation’s best interests. However the Employer did not provide any documentary evidence to show that any members of the Union held this view and the Panel has not received such evidence from any other source. ^{[footnote 3]} The Employer contended that the fact that only one member of the Union had signed the Union’s online petition in favour of recognition demonstrated that the drive to unionise had arisen as an initial reaction to a now completed redundancy process and that there was no appetite for recognition beyond a small handful of staff. The Panel accepts the Union’s statement that the petition was aimed at staff who were not at that time members of the Union and does not regard the fact that it was signed by only one member of the Union as overriding the evidence of support for recognition represented by the level of union membership within the bargaining unit. The Panel notes that seven workers who were not, at the time of the membership and support check, members of the Union also signed the petition. This provides evidential support in this case for the Panel’s general experience that there will be workers who are not members of the Union who would be likely to favour recognition of the Union.

33) 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.

10. Concluding observations

34) The Union submitted that two of the roles included in the membership and support check, those of Head Veterinary Surgeon and Head of Marketing and Communications, should not have been included in the check because they constitute Key Management Personnel and as such are outside the scope of the Union’s proposed bargaining unit. The Union also said that it believed that the newly-created post of Director of Income and Engagement lay outside the bargaining unit on this ground. In addition, the Union said that it believed that the roles of Director of Income and Engagement; Trust and Foundations Manager; Individual Giving Development Manager; and PR and Media Officer may be outside the bargaining unit because the postholders were employed on an agency or self-employed basis. Given that the Panel was satisfied, on the balance of probabilities, that the statutory tests had been met on the basis of the list provided by the Employer it did not find it necessary to inquire further into this matter at this stage. However the Panel notes that the bargaining unit has not been agreed between the parties and that whether specified categories of worker should or should not be included would be a matter for discussion between them. In the event that the parties are unable to reach agreement and the Panel is required to determine whether the bargaining unit proposed by the Union is appropriate or, if not, to determine a bargaining unit which is appropriate the Panel would expect to seek further clarification from the parties as to which workers properly fall within a given bargaining unit at that stage.

35) The Panel notes that the Employer intends to create a staff forum which it believes will meet the legitimate desires/expectations of staff and ensure that voices are properly heard right the way to the top of the organisation without resulting in the negative results which the Employer believes will result from the Union’s involvement. The Panel does not wish to comment at this stage on the Employer’s perception of the consequences which would follow from the Union’s involvement in its organisation but observes that the creation of a staff forum of the kind envisaged by the Employer is not, of itself, incompatible with recognition of the Union.

11. Decision

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

Panel

Professor Gillian Morris, Panel Chair

Mr Martin Kirke

Ms Claire Sullivan

11 January 2022

1. As this information is not relevant at this stage of the process we do not include it in this decision. ↩

2. The Panel notes the Union’s submissions that the list supplied by the Employer for the purposes of the check contained workers who were not included in the proposed bargaining unit. The Panel has proceeded for the purposes of this decision on the basis of the list provided by the Employer. The issues raised by the Union will be addressed, if relevant, at a late stage of the process: see further paragraph 34 below. ↩

3. The Employer also failed to provide any documentary evidence that any non-members of the Union within the proposed bargaining unit held this view, although given the level of union membership it is the views of members of the Union, in particular, which are material in this context. ↩