Decision

Acceptance Decision

Updated 18 May 2021

Case Number: TUR1/1194(2020)

09 October 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992 SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON WHETHER TO ACCEPT THE APPLICATION

The Parties:

United Voices of the World

and

Service to the Aged (Sage)

1. Introduction

1) United Voices of the World (the Union) submitted an application, dated 10 August 2020 and received by the CAC on 11 August 2020, that it should be recognised for collective bargaining by Service to the Aged (Sage) (the Employer) in respect of a bargaining unit comprising the “Domestic staff and care assistants who work at Sage Nursing Home, 208 Golders Green Road, London, NW11 9AL.” The CAC gave both parties notice of receipt of the application on 11 August 2020. The Employer submitted a response to the CAC dated 18 August 2020 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chairman established a Panel to deal with the case. The Panel consisted of Ms Laura Prince, Chair of the Panel, and, as Members, Miss Mary Canavan and Mr Paul Noon OBE. The Case Manager appointed to support the Panel was Ms Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 25 August 2020. The acceptance period was extended on two further occasions in order to allow time for a membership and support check to take place; for the parties to comment on the subsequent report; and for the Panel to consider said comments before arriving at a decision. The final extension ends the acceptance period on 12 October 2020.

2. Issues

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

3. The Union’s application

5) In its application the Union stated that it had made a written request to the Employer for voluntary recognition on 20 July 2020 in accordance with the Schedule. The Union stated that the Employer responded by letter dated 29 July 2020 rejecting the Union’s request. A copy of the Employer’s response letter was enclosed with the Union’s application.

6) The Union stated that there was a total of 85 workers employed by the Employer, 62 of whom fell within the proposed bargaining unit, and 34 of the 62 workers were Union members. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that on the information it had, there was 55% membership within the proposed bargaining unit. The Union also stated that in the event of challenge by the Employer, it would provide the supporting evidence to the CAC on a confidential basis for a statistical check. It was not willing to provide the names of members upfront as it believed it would leave them at high risk of victimisation by the Employer for their membership.

7) When asked to give its reasons for selecting the proposed bargaining unit, the Union stated that it was compatible with effective management, the workers were the same or similar category of worker, they received the same or similar rates of pay and terms and conditions, and they carried out the same or similar work of equal value. The Union stated that the Employer had neither agreed or disagreed with the Union’s proposed bargaining unit.

8) The Union also stated there had been no previous application in respect of this or a similar bargaining unit and that there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

9) The Union stated that it had provided a copy of its application and supporting documents to the Employer on 3 August 2020.

4. The Employer’s response to the Union’s application

10) The Employer confirmed that it had received the Union’s formal request for recognition on 20 July 2020. The Employer provided a copy of its response to the Union, a letter dated 29 July 2020 addressed to the United Voices of the Union. The Employer stated in that letter the trustees and the Executive of Sage had considered the matter and rejected the request.

11) The Employer confirmed that it had received a copy of the Union’s application and supporting documents on 10 August 2020. When asked whether, following receipt of the Union’s request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

12) The Employer answered “No” when asked if it and the Union had agreed the proposed bargaining unit before it had received a copy of the Union’s application. When asked if it agreed with the Union’s proposed bargaining unit, the Employer also answered “No”.

13) The Employer stated that it employed 95 workers. The Employer stated that it did not agree with the Union’s figure as to the number of workers in the proposed bargaining unit as stated in the Union’s application. The Employer believed it was 65, consisting of 57 care assistants and 8 domestic staff.

14) When asked if it agreed with the Union’s estimate of membership within the proposed bargaining unit, the Employer answered that it believed that only 6 members of staff within the proposed bargaining unit were members of the Union. There was no evidence to support voluntary recognition. The Employer stated that it understood the issue of confidentiality and asked the Panel to ask the Union to provide the information needed anonymised, including date of commencement of membership.

15) When the Employer was asked to give reasons and any available evidence, if it did not consider that a majority of the workers in the proposed bargaining unit were likely to support recognition, the Employer answered that it was only aware of 6 members of staff who may be members and that it had other unions such as Unison. The Employer further stated that the Union had not provided any evidence of membership.

16) The Employer also confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit and that it was not aware of any previous application under the Schedule by the Union in respect of this or similar bargaining unit.

5. Summary of the Union’s comments on the Employer’ response

17) In a letter to the CAC dated 27 August 2020 the Union provided the following comments in response to receiving a copy of the Employer’s response to the Union’s application:

18) In respect of the Employer’s declaration of the current number of workers in the Union’s proposed bargaining unit, the Union stated that from the information that was available to it and through consultation with its members, it believed that at the time of the application there were 54 carers employed rather than 57. The Union maintained that in any event, its membership was still over 50% of the proposed bargaining unit.

19) On the Employer’s statement that “There is no evidence of support of voluntary recognition”, the Union commented that the Employer had never requested any evidence on receipt of the Union’s request for voluntary recognition. The Employer’s letter of rejection simply stated, “the trustees and Executive of Sage have considered the matter and reject your request.”

20) On the Employer’s statement that “The Respondent understands that only 6 members of staff within the proposed bargaining unit are members of United Voices of the World”, the Union stated that this could not be a genuinely held belief by the Employer as the Union had represented more than 6 members of staff of the bargaining unit in grievance or disciplinary matters, and other employees had been questioned about their membership of UVW.

21) On the Employer’s statement that “The applicant has not provided any evidence to support its assertions on membership as required as part of the application process” the Union reiterated its statement provided in its application to the CAC that it would provide the information needed by the CAC to carry out a confidential statistical check if this point was challenged by the Employer.

22) The Union stated that it was particularly concerned about victimisation given the recent treatment of known and active members. The Employer had stated, “Whilst we understand the importance of confidentiality, it would be sufficient to provide anonymised details of membership, including date of commencement of membership (e.g. date subscriptions commenced) to enable the Respondent to consider.” The Union had responded directly to the employer and stated that if the Employer confirmed to the Union in writing that they would voluntarily recognise UVW on receipt of the dates of commencement of membership of all of its members, then it would provide them. The Union stated that it had not yet received a response from the Employer on this.

23) In the Union’s view, the fact that it had stated its membership numbers and invited the CAC to verify them should remove any doubts as to their veracity. The Union owed a duty not to deceive or knowingly or recklessly mislead the CAC, and it took this duty very seriously and would never contemplate breaching it. The Union stated that it also owed a duty to its members to act in their best interests which it would not be doing by providing inaccurate information to the CAC. The Union assured that the membership numbers it had cited were accurate.

6. Case Manager’s membership check

24) To assist the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the union (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the union as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of Union membership within the proposed bargaining unit. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit and that the Union would supply to the Case Manager a list of its paid up members within that unit including their full names, and dates of birth. 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 1 September 2020 from the Case Manager to both parties. The information from both parties was received on 2 September 2020

25) The Employer provided a list of the agreed details for 64 workers in the proposed bargaining unit. The job titles appearing on the list were: Care Assistant, Domestic Assistant, Lounge Supervisor and Senior Care Assistant. The Union provided a list with the agreed details of 35 of its fully paid up members. The Union also submitted a copy of a petition in support of recognition of the Union. The petition contained the following statement:

“Voluntary recognition is when a union becomes recognised by the employer without using any legal procedures. In practise this means that your employer Sage would agree to negotiate with United Voices of the World, on your pay and working conditions such as hours, holidays, grievance procedures, health and safety and location of work for all workers, including non-union members.

UVW members and non-members please sign the form if you agree to the following statement

“I would like Sage to voluntary recognise United Voices of the World”.”

Beneath the statement was a table in which signatories could provide their name, date of birth, home address and signature.

26) The Case Manager’s checks established that there were 34 Union members in the proposed bargaining unit of 64 workers, a membership level of 53.13%. The checks also established that 35 signatures on the Union’s petition were from workers in the proposed bargaining unit, which as a proportion of the proposed bargaining unit is 54.69%. Of the 35 signatures, 32 were from Union members (50% of the proposed bargaining unit) and 3 were non-members (4.69% of the proposed bargaining unit).

27) The Case Manager’s report of the membership check was circulated to the Panel and to the parties for their comments on 3 September 2020. The Panel was satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

7. Parties’ comments on the membership check report

28) In a letter to the CAC dated 16 September 2020 the Employer said that if the figures were taken at face value, the level of union membership and majority likely to support, the numbers “appear just sufficient”. It stated that it did however have serious concerns that the asserted numbers may not reflect the reality of support.

29) The Employer said that it had been informed by some workers within the proposed bargaining unit that the Union and/or its supporters within the workforce had applied inappropriate pressure to workers to take up membership with the Union and/or to support its pursuit of recognition. The Employer said that workers had described the use of “force” to join the Union. The Employer explained that the concept of being forced to do something was significant and it deserved careful consideration. The Employer stated that if multiple workers reported experience of being forced to join a union and/or support recognition were correct then in its view it was likely that there were other workers who had experienced the same coercive force to join the Union and/or to sign the petition presented by the same union and succumbed to it, not because it was their genuine and free choice but simply as a means to escape such force.

30) The Employer said that it had been informed by at least one worker that whilst it did briefly join the Union, “they then quit the Union” shortly after. The Employer therefore believed that membership reported by the Union may not be stable and reflective of the true expressions of the workers’ wishes regarding membership.

31) The Employer stated that due to the relatively small number of workers in the proposed bargaining unit a difference of just 2 or 3 people between the Union’s asserted figures, would change the outcome of the admissibility tests.

32) The Employer stated that it was willing to provide evidence of the “inappropriate pressure” to the Case Manager on a confidential basis.

33) Additionally, the Employer asked the Panel requires the Union to provide the date(s) on which the signatories signed the Union’s petition, and details as to the subscriptions paid by the workers in the bargaining unit.

34) Finally, the Employer stated that it appreciated that the issues and the related evidence that it had referred to was more likely to be determinative and could be addressed at the stage whereby the Panel determines whether to hold a secret ballot under paragraphs 22 and 23 of Schedule A1.

35) In a letter to the CAC dated 16 September 2020 the Union stated that it was pleased that the check confirmed that it had met all the admissibility criteria both in terms of the level of union membership (53.13%) and the level of support (57.83%).

36) The Union said that whilst the figure of 57.83% did not appear within the report, it was arrived at by adding together the proportion of union members in the bargaining unit (53.13%) and the proportion of workers in the proposed bargaining unit who had signed the petition and were non-members (4.69%).

37) The Union said that its membership had grown rapidly over five months following a number of meetings and conversations between the Union and members of staff at Sage, during which they expressed dissatisfaction with their pay, terms and conditions, and the treatment they received at work. The Union said that it had raised the possibility of applying for recognition as a means of negotiating with the Employer, following which membership increased and staff had circulated the petition which was signed by over thirty members of staff in a matter of days.

38) The Union stated that during this recent period the Employer had victimised its members. This included a clear campaign against one of its first members, who was a leader of the group. There was an investigation in which an external HR consultant had questioned staff about their membership. The Union said that despite this victimisation membership had grown and 54.69% of staff in the bargaining unit had signed their name to a workplace petition in support of recognition.

39) The Union stated that it could only identify one member who did not appear in the petition and this was because they were absent from work when the petition was circulated. The Union stated that it was unable to identify a second member who had not signed the petition.

40) On 23 September 2020 the parties’ comments on the report were cross copied between the parties. The Panel also invited the Union to comment specifically on two questions raised by the Employer, as set out in paragraph 33 above.

41) In its letter to the CAC dated 29 September 2020 the Union stated that in response to the Employer’s allegation of “inappropriate pressure” or “force” to join the union as set out in paragraph 29 above, the Employer did not specify the number of workers who had allegedly reported being subjected to “force” or “inappropriate pressure” to join the union, or the precise details of the complaints, nor had it specified who the alleged perpetrators of the alleged conduct were supposed to be, specifically, with regard to the Employer’s reference to “the union and/or its supporters”, and similarly where it referred to “inappropriate pressure to workers to take up membership with the union and/or to support its pursuit of recognition” without distinguishing between the two. Further, it referred to “multiple workers”, rather than their original characterisation of “some workers”. The Union stated that the incoherencies, discrepancies and the Employer’s general inability to define or distinguish between the Union and its supporters, and pressure to join as a member and support for recognition clearly pointed to a lack of any credible or coherent evidence and it was “an attempt to concoct a case.”

42) The Union stated that it would be happy to provide evidence upon request including messages, statements, and petitions signed by its members refuting the Employer’s claim. The Union stated that were such evidence to exist in the Employer’s possession, it asked the CAC to require its disclosure and to provide the Union with a copy and a right of reply, to enable it to review any such evidence so as to enable it to undertake its own disciplinary investigation against any members of the union who may have engaged in such conduct as described, which the Union stated “we hold a rigidly enforced, zero tolerance position on.”

43) The Union asked that the CAC take into consideration that Members were informed of their right and invited to submit any complaints related to the conduct of members or officials of the union to its Executive Committee, which would be treated in the strictest confidence. The Union said that it could confirm that no such complaints had been received.

44) The Union said that there had been no complaints, formal or informal, submitted to the Employer against any individuals in the union in relation to any alleged “inappropriate pressure” or “force”.

45) The Union explained that by way of comparison, the Employer had subjected numerous workers to formal disciplinary Investigations for complaints of trivial and minor infractions in the workplace. The Union believed that the Employer’s unwillingness to do the same with these very serious allegations seriously undermined their veracity and credibility.

46) The Union said that membership of the Union was the result of an individual filing in a paper form and returning it to an UVW official or completing its online form. Both methods were undertaken by the individual worker and were never done on behalf of a worker. Further, members were not informed of the membership of other workers at Sage, though whether they shared such information amongst themselves was a matter for them.

47) The Union said that the Employer had demonstrated hostility towards the Union and many of its members since its appearance on the scene. The Union said that it had documentary evidence in its possession to support this assertion, that the Employer had enquired with individuals as to their membership status and applied undue pressure on them to distance themselves from the Union.

48) The Union stated that it had photographs of handwritten and signed statements from members who were called and asked directly by the Employer whether they were pressured to join the union. The Union said that this made its members feel incredibly intimidated and it believed this also confirmed what common sense would already dictate, that no worker unless unduly pressured to do so would freely volunteer information to the Employer related to their membership of UVW.

49) The Union said that it had no means nor any desire to pressure workers to join the union, nor did it have any means or desire to punish workers who choose not to join the Union. The Union maintained that by contrast, the Employer had every means at its disposal and desire to punish workers for joining the union and for participating in lawful union activities.

50) In response to the Employer’s claim concerning the cancellation of membership in paragraph 30 above, the Union said that having requested that the membership list be re-checked against the payment system, it could confirm that two members had left the union. The Union explained why it believed that they had felt pressured to do so. The Union stated that the level of union membership was now therefore 50%. It further stated that in the past week, two more employees had signed the petition in favour of recognition “bridging the total support for recognition to 57.83%.”

51) The Union maintained that it had met all of the admissibility criteria. The Union said that an official notice of intention to ballot its members for industrial action was provided to the Employer on 28 September 2020 and it asked the CAC to recognise that it would not be balloting its members if they did not support the demands, or the request for recognition.

52) Finally, in response to the Panel’s questions in its letter of 23 September 2020 September 2020, the Union stated that no date was recorded as it was not considered necessary or useful information. It further stated that the union’s subscriptions were a matter of public record and were freely available on its website. There were currently two rates of either £8 or £10 a month depending on salary level.

8. Considerations

53) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.

54) 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 and that it was made in accordance with paragraph 11(2) of the Schedule in that, before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer did not respond to the request.

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

9. Paragraph 36(1)(a)

56) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit. The membership check conducted by the Case Manager (described in paragraphs 24 and 26 above) showed that 53.13% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 27 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the union constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule. The Panel notes the Union’s comments that 2 union members had left the Union. However, the Panel is satisfied that the level of union membership in the proposed bargaining unit would still be 50%.

10. Paragraph 36(1)(b)

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

58) For the reasons given in paragraph 56 above the Panel has concluded that the level of membership of the Union 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.

59) The Panel has received contradictory allegations of victimisation from both parties, evidence to support these allegations has been offered from both parties. The Panel has made no findings in relation to any of these allegations at this stage and they have played no part in its decision regarding acceptance. In this case, the Panel have decided to rely on the figures given in the Case Manager’s report. The Panel also notes that the Employer refers to its evidence as being “more determinative” at later stage of the statutory process.

60) On the basis of the level of union membership alone the Panel would have been prepared to conclude 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. In this case the Panel also notes that the support check conducted by the Case Manager showed that 54.69% of workers in the proposed bargaining unit (35 out of 64 workers) had signed a petition in favour of recognition (see paragraph 26 above). Of those who had signed the petition 32 were Union members (50% of the proposed bargaining unit) and 3 were non-members (4.69% of the proposed bargaining unit).

61) For the reasons given above the Panel is satisfied that, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to support recognition of the Union and that the test set out in paragraph 36(1)(b) is therefore met.

11. Decision

62) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince, Panel Chair

Miss Mary Canavan

Mr Paul Noon OBE.

09 October 2020