Rights to information for collective bargaining 





Section 181 of TULRCA says that for the purpose of collective bargaining, employers have a duty to disclose to representatives of independent recognised unions all information relating to the employer’s undertaking in its possession or that of an associated employer:



• without which representatives would be impeded in carrying out collective bargaining; or




• which, in accordance with good industrial relations practice, should be disclosed.





This can include information on the distribution of percentage pay awards across certain staff groups and about the amount and distribution of overtime. 



These rights can be particularly useful to a recognised union in times of uncertainty and change, for example, in the run up to a reorganisation and/or the early days of a potential TUPE transfer, before any transferee has been identified. 





Two employers are “associated” if one has direct or indirect control over the other or both are controlled by another organisation (section 297, TULRCA). 





In Unite & Fujitsu Services Limited [2014] D1/7, the CAC ruled that “undertaking” can include a subsidiary. In this case, Unite had recognition for the parent company, Fujitsu, but not its subsidiary. The CAC ruled that the subsidiary was an extension to Fujitsu’s business and that several factors, including common management, pointed to a close connection between the two. Concluding that Unite had been impeded in its negotiations by the employer’s refusal to disclose information about the subsidiary, the CAC ordered disclosure in the interests of good industrial relations. 



The Acas Code of Practice, Disclosure of information to trade unions for collective bargaining purposes, states that the information that should be disclosed includes:





• pay and benefits: structure of the payment system, earnings analysed by work group, details of fringe benefits;





• employee numbers: numbers employed, by age and sex, turnover, absenteeism;





• performance: productivity and efficiency data, sales; and





• financial: profit, assets, liabilities, loans, sales. 





The right to disclosure is restricted on limited grounds. An employer can decline a request on the grounds of: national security; that information was obtained in confidence; that it relates specifically to an individual; or that it would cause “substantial injury” to the employer’s undertaking (section 182, TULRCA). The Acas Code gives examples of information that could lead to “substantial injury”, which includes cost information on individual products, marketing and pricing details.




Complaints over non-disclosure must be made in writing to the CAC which will try to resolve the dispute through mediation. Failing this, it can make a ruling (section 183, TULRCA). Claims are presented by the union, not individuals. The CAC strongly promotes voluntary resolution, offering informal meetings mediated by CAC panel chairs. The CAC must refer complaints to Acas where they think the dispute could be resolved through conciliation (section 183(2), TULRCA). Disclosure complaints are normally resolved without a formal CAC ruling. Hearings are rare.