Case Number: IC/11/(2007)

20 November 2007

 

 

 

CENTRAL ARBITRATION COMMITTEE

 

THE INFORMATION AND CONSULTATION OF EMPLOYEES REGULATIONS 2004

 

DECISION ON A COMPLAINT UNDER REGULATION 19(4)

 

 

 

Ms G Pye

and

Partnerships in Care Limited

 

 

Introduction

 

1.         Ms G Pye, an employee of Partnerships in Care (the Company), submitted a complaint to the CAC dated 7 June 2007 under regulation 19(4) of The Information and Consultation of Employees Regulations 2004 (the Regulations) that the Employer had not arranged for the holding of a ballot to elect information and consultation representatives in accordance with regulation 19(1).  The CAC gave Ms Pye and the Company notice of receipt of the application on 11 June 2007.  The Company submitted a response to the CAC on 22 June 2007 which was copied to Ms Pye.

 

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 Professor Frank Burchill, Deputy Chairman, and, as Members, Dr S R Corby and Mr R Hill.  The Case Manager appointed to support the Panel was Sarah Kendall.

 

Summary of the parties’ positions

 

3.         Ms Pye’s complaint to the CAC was that, on 18 August 2006, 31 employees had submitted a request to the Company for the establishment of information and consultation arrangements under the Regulations.  The request was addressed to the Company’s Chief Executive Officer and stated, inter alia, that the request had been made by over 10% of the employees at Redford Lodge Hospital.  Ms Pye received no response to the request and provided, on 26 January 2007, a copy of the request to the Company’s Human Resources Director, Mr G E Green.  Ms Pye attached to the complaint a response from Mr Green.  He explained that he could find no record of having received the original request and denied that the Company had failed to comply with the Regulations.  He explained that the Company had established a Staff Consultation Committee (SCC) which it regarded as meeting its obligations under the Regulations.  Ms Pye’s complaint to the CAC was that the Company had taken no action in response to the request, that the Standard Provisions therefore applied under regulation 18(1)(a) and that the Company was under an obligation to hold a ballot, under regulation 19(1), to elect information and consultation representatives.

 

4.         The Company’s response to the CAC was that it appeared Ms Pye was complaining about a failure on the Company’s part to consult over a redundancy exercise.  The Company explained that the SCC was in place when Ms Pye’s original request had been submitted and that the SCC had been used as the vehicle for consulting over redundancies once staff representatives had been elected.  The SCC continued to meet on a bi-monthly basis.  The Company further stated, on the CAC response form, that it regarded itself as being under an obligation to negotiate information and consultation arrangements and that it accepted that the standard information and consultation provisions applied.

 

5.         The Panel considered the contents of the complaint and the Company’s response and decided to seek clarification from the Company on the following issues:

 

a)         How and when did the Company respond to the request of 18 August 2006?

b)         Given that the Company accepted that the Standard Provisions applied, had it arranged the ballot for the election of information and consultation representatives?

c)         Was the Company contesting that the request was valid under regulations 3 and 7?

d)         Was the Company seeking to argue that there were one or more negotiated agreements in place under regulations 2, 14 and 16?

e)         If so, when were the agreements signed by the negotiating representatives?

f)          Alternatively, was the Company seeking to argue that there were in place pre-existing agreements under regulations 2 and 8?

g)         What defence was the Company offering to the complaint?

 

6.         The Company responded to the CAC on 2 August 2007 and explained that it had confused the Regulations with an employer’s obligation to consult in a redundancy situation.  It accordingly sought to amend its response to the CAC and, in summary, its replies to the CAC’s questions listed above were as follows:

 

a)         It had not received the original request but had responded when provided later by Ms Pye a copy of the request.  It mistakenly believed that Ms Pye was raising a grievance about the handling of the redundancy situation.

b)         It no longer accepted that the Standard Information and Consultation Provisions applied.

c)         It no longer accepted that it was under an obligation to negotiate information and consultation arrangements.

d)         It was not seeking to argue that there was a negotiated agreement in place.

e)         Not applicable.

f)          It was not seeking to argue that there was a pre-existing agreement in place.

g)         It submitted that the request was not a valid request within the meaning of regulation 7(2) and (4).  The employee request dated 25 July 2006, which the Company had no record of receiving, appeared to relate only to Redford Lodge which was one of 15 establishments within the Company.  The Company submitted that the ‘undertaking’, for the purposes of the Regulations, was Partnerships in Care Ltd which employed some 2700 employees.  As the request had been signed by 31 employees, it fell well short of the 10% required by the Regulations.

 

7.         Ms Pye submitted a response, on 27 August 2007, to the Company’s response of 2 August 2007.  In summary, her comments were as follows:

 

a)         She had no doubt that she had sent the original request to the Company’s Chief Executive Officer.

b)         She fully understood that the Information and Consultation Regulations and the obligation to consult in redundancy situations were completely different.  She had never made a complaint about the Company’s redundancy exercise.

c)         The Company had accepted that there were no pre-existing agreements in place.  Her view was that the Company was attempting to avoid implementing the Standard Provisions.

d)         She did not accept that the ‘undertaking’ was Company-wide.  The Company had, at an Employment Tribunal hearing, described each hospital as a “local employment unit”.

e)         The Company was attempting to deny the right of employees at Redford Lodge to be informed and consulted.

 

8.         In view of the contents of Ms Pye’s and the Company’s responses, the Panel decided to request specific representations from the parties on the question of the ‘undertaking’.

 

9.         Ms Pye replied on 21 September 2007.  She explained that, up to and including 2006, Redford Lodge had its own Director, finance department, human resource department and managed its own budget.  She also provided a copy of a letter sent to her on 13 December 2006 regarding the redundancy process which was headed ‘Redford Lodge’.  She explained that it was typical for letters to be headed in that way, including her own letter of appointment.

 

10.        The Company replied on 24 September 2007, referring to its latest published accounts dated 31 December 2005.  The Company drew the Panel’s attention to the numbers employed by the Company which were 2749 in 2004 and 2941 in 2005.  Those figures included employees at Redford Lodge.

 

Considerations

 

11.        Ms Pye’s complaint to the CAC was made under regulation 19(4), namely that the Company had not arranged for the holding of a ballot to elect information and consultation representatives.  The obligation to hold such an election arises under regulation 19(1) where “the standard information and consultation provisions are to apply” and the circumstances in which the standard provisions do apply are given in regulation 18.  The basis of Ms Pye’s complaint was that, as the Company had not initiated negotiations following the employee request, the Standard Provisions applied six months from the date of the request.

 

12.        Regulation 18 describes the consequences when an employer refuses to negotiate but those provisions can only be enforced if there has been, in accordance with regulation 18(1)(a), “a valid employee request” and it is the Panel’s responsibility to determine that preliminary question.

 

13.        The issue disputed between the parties is whether the request was made by 10% of the employees in the undertaking; that requirement is specified in regulation 7(2) and the term ‘undertaking’ is defined in regulation 2.  The Panel has considered carefully all the documentation submitted by the parties.  Ms Pye’s position is that Redford Lodge is an autonomous unit within Partnerships in Care Ltd and that letters sent to staff are routinely headed Redford Lodge rather than Partnerships in Care Ltd.  In addition, she argues that operational practices are governed by management at Redford Lodge and that the Company described Redford Lodge as a local employment unit during Employment Tribunal proceedings.  The Company maintains that Redford Lodge is but one of its establishments and that the undertaking is Partnerships in Care Limited.  The Company also submitted a copy of its most recent published accounts, dated 31 December 2005.

 

14.        The Panel found those accounts persuasive.  It is clear from the accounts that Partnerships in Care Limited is a company employing some 2700 staff across several locations and there is no evidence that the Company comprises a number of separate undertakings.  In particular, there is nothing in the accounts to indicate that Redford Lodge, now known as the North London Clinic, is a separate undertaking and there was nothing in Ms Pye’s evidence that contradicted that view.

 

15.        As the request for the establishment of information and consultation arrangements was supported by 31 employees, it is clear to the Panel that this does not meet the requirement in regulation 7(2).

 

Decision

 

16.        The Panel’s decision is that there has not been a valid employee request, within the meaning of regulation 18(1)(a), and that, in consequence, the complaint under regulation 19(4) is not upheld.

 

 

 

Professor Frank Burchill

Dr S R Corby

Mr R Hill

 

20 November 2007