Decision

Bargaining Unit Decision

Updated 18 May 2021

Case Number: TUR1/1194/2020

29 January 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

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 Chair 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 for the purposes of this decision was Nigel Cookson.

3) By a decision dated 9 October 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. A virtual hearing was held on 11 January 2021 and the names of those who attended the hearing are appended to this decision. To accommodate the hearing the Panel extended the period within which it was required to determine the bargaining unit until 29 January 2021.

4) Both parties provided helpful written submissions prior to the hearing together with supporting documentation and a statement from Molly Fisher de Dios (an Executive Committee Member of the Union). At the hearing the Panel heard oral submissions from Cormac Devlin (Employment Tribunal Caseworker for the Union) and Simon Ost (solicitor for the Employer). The names of those who attended the hearing are appended to this decision.

5) The Panel would like to thank the parties for their patience in answering the many questions posed by the Panel during the hearing and which we found of great benefit in assisting with our deliberations.

2. The Law

6) The Panel is required, by paragraph 19(2) of Schedule A1 of the Act (‘the Schedule’), to decide first 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. Paragraphs 19B(1) and (2) of the Schedule 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 other 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.

7) In R (Kwik-Fit) v Central Arbitration Committee [2002] IRLR 395 the Court of Appeal set out the correct approach to be followed by the CAC in approaching its task under paragraph 19B. Buxton LJ set out the applicable principles as follows:

i. “…it seems self-evident that the CAC’s task is to start with the only proposal that it has before it, that contained in the union’s request, and to determine whether that proposal is ‘appropriate’: it however being open to the CAC under para. 11(2)(a) to determine that some other bargaining unit is appropriate.” (para [6])

ii. “…it should be remembered that the statutory test is set at the comparatively modest level of appropriateness, rather than of the optimum or best possible outcome. Since the CAC has only to find and can only find one bargaining unit; and has only to be satisfied that the unit that it does find is appropriate; I see no escape from the contention that, provided the CAC concludes that the union’s unit is appropriate, its inquiry should stop there.” (para [7])

iii. “What, in my view, however, the CAC does not have to do is to conduct a search for the most appropriate unit from amongst those that are proposed to it.” (para [11])

8) This is the approach that the CAC should adopt in determining whether the Union’s proposed bargaining unit is appropriate and has been adopted by the CAC in the recent decision of UNISON v We Are With You (formerly known as Addaction) TUR1/1144(2019), where the Panel noted that:

“The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel notes that it cannot reject the Union’s proposed bargaining unit because it feels that a different unit would be more appropriate nor, in considering whether it is compatible with effective management, can it consider whether it is the most effective or desirable unit in that context.” (para [40])

9) These cases were relied upon by the Union in their submissions. The Employer did not argue that these authorities were wrongly decided and did not rely on any other authorities. The Panel approached their decision in line with these authorities.

3. Background

10) The Employer is a charity registered with the Charities Commission with charity number 100916. The Employer operates a single small care home caring for 58 residents. The location of the care home is 208 Golders Green Road, London NW11 9AL (‘the home’). The Employer provides residential care for elderly members of the Jewish faith community. In total it has approximately 114 employees.

11) The home is managed by one Home Manager and Two Deputy Managers (the ‘Management Team’) who manage the whole home, all of its operations and all of the staff within it. The Employer also has a financial controller who deals with financial issues but does not manage the operation of the home. Neither the Union nor the Employer suggest that the management team and/or the financial controller should form part of the bargaining unit.

12) The contracts for all workers are drawn up from a template which is applied on a whole home basis. This template has changed over the years such that all workers are not employed on identical terms and conditions (even those in the same roles). In particular, the home engage both bank staff and permanent staff across a number of roles whose terms and conditions inevitably vary. In summary, the contracts for all workers are broadly similar save for job role, hours and pay. There is one staff handbook with one set of policies that applies equally to all staff with no differentiation between roles.

13) The workers are engaged in 12 main roles (excluding Leadership roles which neither party argue was apt for inclusion in the bargaining unit). A single pay structure operates at the Employer. Remuneration for non-managers is as follows:-

(1) Domestic workers: £8.72 per hour

(2) Reception: £8.72-£9.22 per hour

(3) Carer: £9.10 per hour

(4) Domestic Supervisor: £9.27 per hour

(5) Senior Carer: £9.60 per hour

(6) Activities Coordinator: £12.50 per hour

(7) Maintenance: £12.50 per hour

(8) Admin: £12.93 per hour

(9) Physio: £18.80 per hour

(10) Nurse: £19.00-£19.50 per hour

(11) Nurse Floor Manager: £21.50 per hour

(12) Senior Physio: £24.00 per hour.

The Union’s proposed bargaining unit incorporates those in categories (1), (3), (4) and (5) above.

4. Summary of the submissions made by the Union

14) The Union submitted that its proposed bargaining unit was an appropriate bargaining unit in that it was compatible with effective management taking into account the matters set out in paragraph 19B of the Schedule.

15) Since March 2020, a significant number of domestic staff and carers had joined the Union to fight for improvements to their pay, terms and conditions. Following this, the Union asked for voluntary recognition in respect of the proposed bargaining unit on 20 July 2020. This was rejected by the Employer. Since July 2020, all of the Union’s engagements with the Employer have related to issues facing domestic staff and carers. These issues included individual grievances; collective grievances; disciplinary proceedings; employment tribunal claims; and negotiations over pay, terms and conditions. The Union therefore had a history of representing this category of worker at the care home and felt they were well placed to conduct collective bargaining on behalf of these workers compatibly with the need for effective management.

16) The Union represents low paid workers campaigns to get the London Living Wage for these workers. The Union’s view was that the London Living Wage should be the minimum standard and set the baseline. In response to questions from the Employer and the Panel as to why the receptionists (who also earned below the London Living Wage) were excluded from their proposed bargaining unit the Union explained that it was a member led union and it had not received any approach from receptionists seeking to be represented by the Union for collective bargaining purposes. In addition, the receptionists did not have the same grievances nor concerns as the workers in the proposed bargaining unit nor did they have the same health and safety concerns. These were the reasons why the Union had not sought to include these workers in its campaign for collective bargaining. Questioned by the Panel Chair as to the types of grievances the Union explained that increased workloads caused by insufficient staffing levels as both groups had seen a decrease in the number of staff during the pandemic as well as concerns about treatment at work for example, favouritism and the allocation of rotas/shifts.

17) The Union was strongly of the view that the proposed bargaining unit was compatible with effective management; was sufficiently large to avoid small fragmented bargaining units within the Employer’s nursing home; and covered a cohesive group of workers who had similar rates of low pay and identical terms and conditions in respect of annual leave and sick pay for the following reasons:-

(1) The Union’s proposed bargaining unit was not a small unit. The Employer operated a relatively small operation, employing approximately 114 in-house workers. The proposed bargaining unit would comprise 65 of these workers. It would therefore cover 57% of the Employer’s in-house workers.

(2) As for the location of the workers in the proposed bargaining unit, they all worked at the Employer’s nursing home in Golders Green, London.

(3) The domestic staff and the carers had a lot in common. Their wages ranged from £8.72 for domestic staff to £9.60 for senior care assistants. Their terms and conditions relating to sick pay, annual leave entitlement, and the payment of breaks on night shifts were identical (save for bank workers who spanned the different roles in the home). The domestic staff and carers felt that they were treated differently from other categories of worker. Further, they felt that they lacked voice in the workplace. For these reasons, the domestic staff and carers had been engaged in a concerted industrial dispute for better terms and conditions since March 2020 with the support of the Union. When balloted for strike action, 100% of Union members who returned their ballots voted in favour of strike action.

(4) It was not clear that other categories of worker directly employed by the Employer shared the same characteristics or faced the same issues as the workers within the proposed bargaining unit. To the Union’s knowledge, there was no other category of worker directly employed by the Employer that received under £10 per hour (save for the receptionists discussed below). Further, other categories of worker had not been engaged in a collective struggle for improvements to terms and conditions.

(5) The Union specialised in organising low-paid workers. It had a close relationship with the group of workers that fell within the proposed bargaining unit. The Union had achieved remarkable membership density among domestic staff and carers since it was first approached in March 2020 by a member who worked at the care home. Since March 2020, the Union had submitted a number of grievances, both individual and collective, including issuing claims in the employment tribunal, on behalf of domestic staff and carers at the care home, as well as supporting domestic staff and carers in their industrial dispute.

18) In response to matters raised in the Employer’s submission, the Union argued:-

(1) That the Employer’s argument that it had a frugal management structure and limited financial resources should not prevent recognition. The Union accepted that recognition would create an extra burden on the Employer but argued that the Employer could not side step its legal obligations on these grounds.

(2) That the Employer’s concerns that they may be faced with having the deal with several bargaining units within the workplace was no more than a remote hypothetical concern; no other groups of workers had sought recognition nor stated an intention to do so. Workers within the home were aware of the Union’s campaign and there was no evidence of any appetite for recognition from any other group. The Union stated that Panel should decide this matter on the evidence before it rather than on a speculative risk that the Employer may or may not face.

(3) That the Employers concern that the bargaining unit would cause operational problems because, on occasion, carers sometimes carried out tasks usually carried out by nurses was unfounded; Carers did not receive any higher remuneration for taking on such additional responsibilities.

(4) That the Employer’s objection to the proposed bargaining unit on the grounds that it would be incompatible with current arrangements for pay increases claiming that historically, it applied increases on a whole home basis was not persuasive because there was no contractual obligation upon the employer to make pay increases on a whole home basis.

(5) The distinctions the Employer had raised between domestic staff and carers were not relevant to the topics upon which they would be collectively bargaining (namely pay, hours and holidays).

(6) The Employer’s argument that it could not give workers in the proposed bargaining unit a pay award without increasing pay for others was unfounded. There was no contractual reason for this and the fact that other workers may be annoyed by one group getting an increase was not evidenced and was an irrelevant factor.

19) The Union then turned to look at the Employer’s proposed bargaining units. The first proposal put forward by the Employer was for a bargaining unit covering the whole home save for the manager, deputy manager and financial controller. The Union argued that it would not work because a bargaining unit comprising cleaners on the one hand and senior physiotherapists on the other, with such a wide pay differential between the two, was not appropriate. In any event, it must be no other workers had complained about their pay or raised any sort of grievances. In the Union’s view, it was impractical to bargain for a group with such a diverse pay range.

20) The second proposal put forward by the Employer distinguishes between workers providing care and those that do not. The Union argued that this proposal made distinctions between matters or factors not relevant to collective bargaining. The Union’s objections to this proposal were similar to the whole home approach. A care provision bargaining unit would cover a wide range of pay and would not be practical given such a wide pay differential.

21) Finally, the Panel Chair sought the Union’s view as to the inclusion of the receptionists were the Panel of the view that level of pay was an important factor in determining the appropriate bargaining unit. The Union stated that it would be more appropriate to have a bargaining unit based on a similar level of pay rather than the two alternatives put forward by the Employer but maintained that their bargaining unit, which did not include receptionists was appropriate.

5. Summary of Submissions made by the Employer

22) The Employer submitted that the Union’s proposed bargaining unit of care assistants and domestics was not appropriate as it was not compatible with effective management. Mr Ost, on behalf of the Employer, argued that the concept of what was ‘appropriate’ and ‘compatible effective management’ for the purposes of the Schedule could only be determined by considering the question within the specific circumstances of the organisation at the time the bargaining unit and its impact were being assessed.

23) The organisational chart provided by the Employer showed the simple structure which they had in place. The structure may appear somewhat frugal but this streamlined management resource was not directed towards generating profit or enriching any individual but to providing care to its residents within its limited financial resources.

24) Even before the Covid-19 pandemic, this streamlined structure kept the Management Team fully occupied dealing with the demanding requirements of operating a care home and since the pandemic took hold, the workload upon the Management Team had increased with the acute problems it had caused. This resulted in the Employer adjusting its working practices to minimise the risk of infection to residents and staff as government and regulatory advice changed. It also had to absorb additional complexity and restriction within its operation to reduce the risk to residents and staff. This was all managed through the Home Manager and the two Deputy Managers. This medium to long term pressure on the home, its management and its operation, was a relevant factor entirely outside of the Employer’s control but a factor which the CAC should take into account when assessing what was ‘appropriate’ and ‘compatible with effective management’.

25) The Employer was not in a position to employ more managers as it already faced financial pressures resulting from the pandemic and was currently operating at a loss. If required to collective bargaining for different groups and manage them as independent units then this would inevitably increase costs thereby reducing resources available for other areas. There were no management resources to deal with separate bargaining for diverse groups of workers or for managing staff on differing terms and conditions.

26) Although the different groups of workers had specific roles and different tasks, the workforce was heavily interconnected and did not readily subdivide into groups for management purposes. It was not a question of going through a job description before allocating tasks to staff. There was no allocation of responsibility for particular teams or groups of staff between the managers. Examples given by the Employer to demonstrate the flexibility of the staff included the Home Manager sometimes helped out on the floor as she was a qualified nurse, receptionists would help out with the provision of lunch and if a physio was present and a resident needed escorting to a room, then they would assist. To insert hard and fast boundaries, so the Employer asserted, would impede it in effectively managing the home.

27) Questioned by the Panel Chair as to the degree of interchangeability and whether domestics would be involved in frontline work, the Employer said that part of care was listening and talking to residents and domestics would carry out such duties if they were, for example, in the resident’s room. Where carers had received appropriate training, they would undertake clinical duties working under the supervision of nurses, for example, they were trained to flush tubes. Another example was that they were trained to identify and report any issues with catheters although a nurse would be responsible for their insertion.

28) The contracts for all workers were drawn up from a single template with the contracts for different worker types being virtually identical terms save for job title, pay rates and hours. Similarly, there was one staff handbook with one set of policies that applied equally to all staff. The Panel Chair asked whether the Employer accepted that, as well as differences in hours between some of the contracts, some contracts also seemed to differ in respect of holidays, for example, the holiday entitlement for an admin assistant differed to that of a maintenance worker. The Employer explained that its contracts were based on a living template which changed over time. There were three categories of contract: the earliest which went up to 2017, for example the assistant handyman and receptionist; the second era which covered the period between 2017 and 2019 which included domestic bank and domestic normal and administrative; and finally the third type from 2019 to date which covered nurses and carers. The reason for the difference in holiday entitlement was that the earlier contract predated the Working Time amendment in 2009.

29) The Employer said that on the issue of hours, one reason why the Union’s proposed bargaining unit lacked cohesion was that there were few distinctions between the shifts for caring and non-caring staff. The domestics worked fixed hours – 8 a.m. to 4.00 p.m. or 7.30 a.m. to 4 p.m. for laundry staff (who also came under the category of domestics). Bank staff were on zero hours contracts and, as for the contracted staff, some carers worked 8:30 a.m. to 2:30 p.m. shifts and some were on 12 hour shifts (or 11 hours at night). Both nurses and carers on 12 hour days started at the same time, 8.00 a.m.

30) If the Employer operated a system in which each group could agree different terms and conditions as a result of fragmented bargaining, these outcomes would significantly increase management complexity requiring more management resource and time. This would not be compatible with effective management given its limited management resources.

31) Different bargaining units may also cause operational problems for the home. Some carers were trained to undertake tasks which otherwise would only be carried out by nurses. This was useful as it increased efficiency, operational flexibility and reduced costs. A bargaining divide between nurses and carers would make the interchange of responsibilities more difficult to implement and reward.

32) Matters covered by collective bargaining within the meaning of the Act were addressed directly with staff and generally on a whole home basis. If changes were made to one part of the workforce it usually impacted upon the other parts of the workforce. As a result, increases to pay were considered and implemented on a whole home basis across all roles. Exceptions were where individual circumstances or statutory requirements, such as minimum wage legislation, necessitated change. For example, in 2017 a 2.7% pay rise was agreed and implemented across all roles. Where consultation had been legally required it had taken place on a whole home basis, for example, in 2019 the simplification of an unwieldy bonus rates system was carried out on a whole home basis and the outcome was applied across the board. When asked by the Panel Chair whether any increase in the national minimum wage would see a similar uplift in the pay of other workers, the Employer confirmed that there was no contractual requirement that it do so. The Employer explained that, regardless of underlying pay, supplements for Saturday and Sunday overtime for all staff, had change in 2019 to a flat rate as it worked towards a simpler pay structure.

33) The Employer submitted that a bargaining unit comprising care assistants and domestics was not appropriate as this combination was not a cohesive and distinguishable group in any meaningful sense. Save for the issue of pay, care assistants and domestics did not share any particular characteristics which were not also shared by all staff within the home. They did not carry out similar work and their work was not of equal value. Separating out care assistants and domestics, it submitted, would cause operational discord. Workers other than those in the proposed bargaining unit have said that they would like higher wages but the majority of staff accepted that this was not the appropriate time because of the limited financial resources available.

34) Other roles such as the receptionists shared the general characteristics applicable across all staff within the home and also had a similar rate of pay to care assistants and domestics and yet they were excluded from the Union’s proposed bargaining unit. This would leave three individuals isolated without any obvious grouping as an option for collective bargaining purposes. This could only lead to greater fragmentation which the Employer could ill afford with no logical justification for their exclusion. The only rationale for the grouping of care assistants and domestics was that the Union enjoyed some level of support within those two categories and wished them both to receive increased pay. The Union’s proposed bargaining unit was a “cut and shut” job in that it had taken the carers on one side of the caring line and cut them away from the nurses whom they worked closely with and welding them together with the domestics simply on the basis that they received similar rates of pay. The Employer contended that membership alone could not be the rationale for how the bargaining unit was selected.

35) As for the Union’s reasoning as to why the receptionists had been excluded i.e. that they have not approached the Union, that they did not have the same grievances and had different health and safety needs, the Employer would say that the first reason did not relate to collective bargaining. As for the second reason, there was no evidence to suggest that they had been asked if they had any grievances and as for the third, the Employer did not understand how this was the case given that they worked in the same workplace.

36) The Employer explained that it did not engage with the care assistants and domestics as a separate group but communicated to the staff on a whole group basis. They did not interchange roles. Care assistants were front line care providers working with residents whereas domestics played a valuable role in supporting that care but did not directly provide care. There were several important differences between the roles which made them an unnatural grouping. The structure of work was different with care assistants working a shift system whereas domestics would work fixed hours. Different training requirements applied, for example, only domestics would receive COSHH training, whereas care assistants and nurses received and implemented specialist training concerning the care provision side of their role. Information flow to care assistants and domestics was different as care assistants would have floor meetings along with nurses whereas domestics would not be involved.

37) It was accepted that both care assistants and domestics had rates of pay which were reasonably close together but within this sector, the broad proximity of pay rates, was not an indicator of much weight and required careful thought by the CAC. The care home industry was a part of adult care sector and, as such, it had consistently been identified by the Low Pay Commission as a low-paying industry since the first LPC report in 1998. This meant that pay rates for different types of staff within adult care were usually closely bunched on or just above the national minimum wage. As National Minimum Wage levels rose, it was inevitable that more and more workers were bunched closer and closer to that minimum level. This did not mean that all such roles could be grouped together; it was simply the economic consequence of the act of raising the floor in lawful wage rates within England and Wales in a low pay industry.

38) The Employer’s belief that the principal factor preventing an even greater percentage of roles within its home being caught in this bunching effect was the pressure to maintain pay differentials between roles which had different demands and requirements. This only illustrated the interconnected nature of roles within the home. For example, if a particular wage increase or change to terms was agreed for care assistants and domestics, this could not realistically be implemented without knock on consequences for other staff. Those who were previously paid at similar rates would understandably demand continuing parity with the new rates. Those who were previously paid more would understandably demand that the differential should be maintained. This would in turn lead to a domino effect to the next group of staff so on and so on up and down through the structure. This interconnectivity between pay rates and differentials was recognised and acknowledged within low paid sectors in the Low Pay Commission’s report of 2019 Report.

39) The Employer submitted that only a ‘whole home’ bargaining unit (save for the Management Team and the Financial Controller) was truly compatible with effective management within the home as it is currently organised and funded and this was particularly true whilst it was operating within the unusual and highly challenging circumstances at this point in time.

40) If the CAC rejected the Employer’s submission that a whole home bargaining unit was the appropriate bargaining unit, then it respectfully submitted that there was only one further subdivision which it believed could have any hope of being workable. This would again involve excluding the Management Team and the Financial Controller before splitting the remaining staff groups between those directly providing care (the “Care Provision BU”) and those who supported that care but did not provide it directly themselves (the “Non-Care Provision BU”). This was the most fundamental division between staff within a care home. If so then the bargaining units would comprise (in no particular order) the following roles: The Care Provision BU would include: staff nurses, nurses, physiotherapists, lounge supervisors, senior carers and care assistants and the Non-Care Provision BU would include: domestic supervisors, domestic assistants, maintenance staff, receptionist, administrative staff, and kitchen staff.

41) Staff within the Care Provision side could interchange in some cases and to some degree and covered for each other for tasks within the regulatory guidelines for example, carers helping to dispense medicines. The same was true of staff within the Non-Care Provision side who may move from maintenance to laundry etc. In contrast, Non-Care staff would not interchange with a member of staff in the Care Provision BU other than in the most extreme of circumstances. Differences in meetings, training and information flow also tended to reflect this fundamental division between Care Provision and Non-Care Provision.

42) In the Employer’s view, any further subdivision of groups of staff beyond the fundamental division into Care Provision and Non-Care Provision would result in the likelihood of small fragmented collective bargaining units and differentiated terms which were incompatible with effective management by an organisation in the Employer’s circumstances which included in particular its limited resources and lack of finances.

43) The Employer invited the CAC to conclude that for the reasons set out above, the bargaining unit proposed by the Union was not compatible with effective management and, as such, it was not appropriate within the meaning of Paragraph 19B of the Schedule. It would have a real world impact on the Employer’s ability to effectively manage its home. The appropriate bargaining unit in this case would be all the staff within the home less the Management Team and the Financial Controller; or, in the alternative, the appropriate bargaining unit could be either or both of a Care Provision bargaining unit or a Non-Care Provision bargaining unit (again less the Management Team and the Financial Controller).

6. Considerations

44) The Panel’s decision has been taken after a full and detailed consideration of the views of both the Union and the Employer as expressed in their written submissions and as amplified during the course of the hearing.

45) 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 so, to determine, in accordance with paragraph 19(3) one that is appropriate. Paragraph 19B(1) and (2) of the Schedule 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. These matters 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) of the Schedule 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.

46) 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.”

47) The Panel’s first duty is to decide therefore, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. As the Union reminded the Panel, in Kwik-Fit, Buxton LJ set out the approach that we should take in arriving at our decision. That is the Panel should start with the unit put forward by the Union and determine whether or not it is an appropriate bargaining unit. The Panel has reminded itself that its task is to determine what constitutes an appropriate bargaining unit and in doing so, our role is not to conduct a search for the best possible bargaining unit within the undertaking: we only have to be satisfied that the bargaining unit we determine is an appropriate unit. Our task is therefore not to adjudicate between the bargaining units put forward by the parties – the one put forward by the Union or the two alternatives put forward by the Employer – in a search for the optimum bargaining unit.

48) The Union has proposed a bargaining unit comprising care assistants and domestics It argued that these workers shared characteristics that clearly distinguished this group of workers from other groups employed at the home. There were both categories of workers at the lowest end of the pay spectrum within the home with their pay minimum being set at the National Minimum Wage threshold, currently £8.72 for a worker aged 25 and over. The Union made it clear throughout these proceedings that it was a union that represented low paid workers and that its objective was to seek to achieve the London Living Wage, currently set at £10.85, for these workers. The Union also confirmed that, if through collective bargaining it was successful in achieving its goal of attaining the London Living Wage for the workers, it would nonetheless continue to represent the workers in the determined bargaining unit.

49) The Union also set out the issues that it believed were another factor in binding together the workers in its proposed bargaining unit. These issues covered both individual and collective grievances some of which were staffing issues which were caused by the impact of the Covid-19 pandemic on the home as well as health and safety issues that were not shared by all of the workers at the home.

50) According to the Union, it was a member led union and this was the reason why it had not cast its net further when it came to delineating its proposed bargaining unit. Its membership was to be found in these particular roles and so it had not sought to include in its proposed bargaining unit workers that had not sought out its assistance nor those that the Union believed did not face the same restraints in pay as the care assistants and domestic staff. The Union also argued that the workers in the proposed bargaining unit shared common terms and conditions such as sick pay and annual leave entitlement and they had a shared perception of being treated by the Employer as being different to other workers.

51) Asked to justify the exclusion of the receptionists, who were the only other category of worker employed at the home whose wages were set at the national minimum wage, the Union stated that it has not been approached by receptionists seeking recognition on their behalf and that whilst the Union accepted that pay was a common factor, the receptionists did not have the same concerns that were shared by the workers in the proposed bargaining unit. The Union did submit however, that a bargaining unit that included the receptionists was more appropriate that either of the options put forward by the Employer.

52) The Union submitted that its bargaining unit was not small in that it covered 57% of the Employer’s in-house workers. As the Union was unaware of any appetite for recognition amongst other groups of workers within the home, it believed the proposed bargaining unit would not lead to the creation of further bargaining units.

53) On the other hand, we heard from the Employer who sought to convince the Panel that the Union’s proposed bargaining unit was not appropriate because it would place an extra financial burden on the Employer at a time when it could least afford it as it would divert managerial resources from other tasks. The Employer also argued that it was a bargaining unit founded on workers that did not have a common bond in that it brought together two groups of workers with widely different characteristics from opposite sides of the care divide – care assistants on one side and domestic staff on the other.

54) The Employer also argued that the Union’s proposed bargaining unit would hamper the degree of flexibility exhibited by the workers in the home. The Employer was at pains to demonstrate how workers were prepared to help and assist with tasks outside their job descriptions and the Employer was concerned that this would not continue if workers were separated by collective bargaining.

55) The Employer was also concerned that any pay award negotiated by the Union on behalf of the bargaining unit would have a knock-on effect for the workers outside the unit. The Employer also argued that the Union had selected workers who were not naturally allied or so closely connected with each other to justify the exclusion of other workers with similar characteristics. They did not carry out similar duties and the only shared characteristic that the Employer could identify was the rate of pay. However, it argued, all other terms and conditions save for rates of pay were virtually identical across the board and there was no clear distinction between those workers in the Union’s proposed bargaining unit and those excluded. Having the terms and conditions of some workers changed through collective bargaining would therefore impede the Employer in the effective management of the home.

56) The Employer argued that it could not identify any other factor that would justify the Union’s proposed bargaining unit save for this was where its membership stood. However, this was not a good enough reason; certainly not one that satisfied the requirements of the Schedule.

57) The Employer sought to demonstrate that the Union’s bargaining unit was not appropriate by reference to the receptionists that the Union excluded. The three receptionists had a similar rate of pay to those workers included in the Union’s proposed bargaining unit and their exclusion, so the Employer contended, would leave them isolated with no natural home should they wish to have a union bargain on their behalf. The Employer claimed that such circumstances would lead to greater fragmentation.

58) In countering the arguments put forward by the Union the Employer proposed two alternative bargaining units of its own. The first was a whole home bargaining unit that would encompass all workers save for the Management Team and Financial Controller. This bargaining unit was, in the Employer’s view ‘truly compatible with effective management’. If we were not to accept this proposal the Employer submitted a further bargaining unit for consideration. In effect, this proposal was for two bargaining units: one covering those workers providing care “the Care Provision BU” and a second comprising those that supported the care givers but did not provide care themselves – a “Non-care Provision BU”. The Employer made clear that its second option was not ideal as it would have cost and resource implications, nonetheless, it was a more logical division that the one put forward by the Union.

59) Taking all the relevant factors into account as well as the parties’ oral and written submissions, the Panel has concluded that in this case the Union’s proposed bargaining unit is compatible with effective management and therefore appropriate. The Panel has considered the points admirably argued on behalf of the Employer, but it has not been persuaded that the Union’s proposed bargaining unit would be incompatible with effective management of the home for the reasons the Employer had advanced.

60) The Employer’s main opposition centred on a belief that any possible increase in the costs of managing the home caused by having to recognised the Union’s proposed bargaining unit would see a reduction in resources available elsewhere. However, in our view this would be the same no matter what bargaining unit was determined as currently there is no bargaining taking place within the home for any category of worker. It was established during the hearing however, that whilst it was the Employer’s practice to uplift pay awards across the board, it was not contractually obliged to do so. It would therefore be a matter entirely for the Employer as to whether it rolled out any Union bargained pay award to workers other than those in the determined bargaining unit.

61) The Employer was also concerned that the Union’s bargaining unit would interfere with the degree of flexibility shown by the workers in the home. The Employer was particularly anxious as to the effect that the Union’s proposed bargaining unit would have on this interchangeability. The Panel, having considered the submissions on this point as well as having sought further information through questioning, is of the view that the examples given by the Employer show that the cross -over in roles is of a very minor nature. We do not see how the proposed bargaining unit would interfere with a member of the domestic staff conversing with a resident if they were in the process of cleaning the resident’s room or prevent a Receptionist from assisting with lunch or preclude a physiotherapist from escorting a resident back to their room if called upon to do so. The Employer can be reassured that such flexibility will not be impinged if the Union is awarded statutory collective bargaining in respect of its proposed bargaining unit.

62) The Panel gave due consideration to the alternative bargaining units put forward by the Employer as it is bound to take into account the views of the Employer in arriving at a decision. Turning to the Employer’s primary bargaining unit the Panel finds that such a unit would not be appropriate given the wide characteristics of the workers that it would cover. The Employer may believe that it would be simpler to have all of its workers save for its management team under the one roof, but each of the distinct groups will have different concerns as well as wage expectations which they will expect the Employer to address and, in our view, would not be compatible with effective management.

63) As far the Employer’s secondary proposal, it is the case that paragraph 19(3) is clear in that if the CAC decides that the proposed bargaining unit is not appropriate, it must also decide within the decision period a bargaining unit which is appropriate. The emphasis added here is to show that any bargaining unit that the Panel determines on the basis that the Union’s is not appropriate has to be a bargaining unit in the singular. Here the Employer proposed two separate bargaining units with one comprising those whose main function is administering care and another comprising those whose main function is to support the care givers. This proposal was for both bargaining units in tandem but a decision such as this falls outside of the gift of the CAC because of the strict wording of paragraph 19(3). In any event, even if the decision on this matter were within the gift of the CAC we would have found that the proposed bargaining units were not appropriate as we accept the submissions of the Union that these proposed bargaining units divide the workers into categories which are unrelated to the matters with which collective bargaining is concerned with (pay, hours and holiday).

64) In our view, the Union’s proposed bargaining unit consists of a clearly identifiable group of workers, who all share similar terms and conditions and rates of pay. Those outside of this unit, whilst on similar terms and conditions, do not share the same wage levels as the carer assistants and domestic staff. The only exceptions are the three receptionists who are on the same wage level but fulfil a totally different function at the home and have different concerns to the workers in the Union’s proposed bargaining unit. For example, the issues over staffing levels brought about through the covid-19 pandemic will impact differently on the domestics and care assistants than the receptionists who spend a significant degree more of their time on the front line dealing directly with residents. Another factor that we have taking into consideration is that the receptionists have expressed no desire to have the Union bargain on their behalf.

65) 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. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. There are no existing national and local bargaining arrangements - the Employer stating that it did not bargain with any of the workers at the home. The bargaining unit is not small nor will it give rise to fragmentation. It covers a clearly identifiable group of workers who all share the same terms and conditions and levels of pay. There is an easily discerned boundary which encompasses these workers and it amounts to a significant proportion of the staff engaged at the home. All of the workers are employed at the same location in Golders Green Road, Golders Green, London NW11.

66) The Panel is also satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule as it will involve fair and efficient practices and arrangements in the workplace.

7. Decision

67) Taking all the relevant factors into account as well as the parties’ oral and written submissions, the Panel has concluded that the appropriate bargaining unit in this case is that as proposed by the Union namely “Domestic staff and care assistants who work at Sage Nursing Home, 208 Golders Green Road, London, NW11 9AL.”

Panel

Ms Laura Prince, Panel Chair

Miss Mary Canavan

Mr Paul Noon OBE

29 January 2021

8. Appendix

Names of those who attended the hearing:

For the Union

Cormac Devlin - Employment Tribunal Caseworker

Molly Fisher de Dios - Executive Committee Member

Petros Elia - Executive Committee Member

For the Employer

Simon Ost - Solicitor

Stephen Goldberg - Trustee

Adrian Jacobs - Trustee

Ana Eborde - Home Manager

Jason Zolin - Financial Controller