Decision

Acceptance Decision

Updated 19 October 2020

Case Number: TUR1/1195 (2020)

04 September 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:

Bectu a sector of Prospect

and

Whitechapel Gallery

1. Introduction

1) Bectu a sector of Prospect (the Union) submitted an application to the CAC dated 13 August 2020 that it should be recognised for collective bargaining by Whitechapel Gallery (the Employer) for a bargaining unit comprising “All staff employed by Whitechapel Gallery at 77-82 Whitechapel High Street, London E1 7QX excluding Team Leaders, Directors and the HR & Administration Manager”. The location of the bargaining unit was given as Whitechapel Gallery, 77-82 Whitechapel High Street, London E1 7QX. The CAC gave both parties notice of receipt of the application on 14 August 2020. The communications sent to the CAC by the Employer in response to the Union’s application are set out in paragraphs 10 and 12 below.

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 Gillian Morris, Chair of the Panel, and, as Members, Mr Nicholas Childs and Mr Roger Roberts. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 28 August 2020. The acceptance period was extended to 9 September 2020 to enable the Panel to consider the evidence before it and to reach 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 said that it had sent a formal recognition request letter to the Employer’s HR Manager, on 23 July 2020 ^{[footnote 1]}. The Union said that the HR Manager had acknowledged receipt of this request via email on 24 July 2020 and had said that she would pass the letter on to the Employer’s directors and would get back to the Union. The Union said that there had been no response since then. The Union attached a copy of its request and of the HR Manager’s response of 24 July 2020 to its application. The Union also attached a copy of an email it had sent to the HR Manager on 23 July 2020 stating that the Employer had ten days to respond to its request under the Schedule.

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 approximately 94. The Union stated that there were approximately 85 workers in the proposed bargaining unit, 49 of whom 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 stated that over 50% of the bargaining unit were members of the Union and that the Union would be happy to provide a survey showing that over 50% of staff in the bargaining unit were in support of recognition if necessary. The Union said that membership had increased over the past few months as members had discussed a recognition attempt with colleagues. The Union said that it would be happy to provide a membership list to the CAC on a confidential basis at the relevant time.

8) The Union that the reason for selecting the proposed bargaining unit was that it included all staff below senior management grades. The Union said that members felt that it would be appropriate for senior management not to be included in the bargaining unit as they would most likely be the people who would represent the Employer in any negotiations/consultions with the Union if the members were successful in their recognition attempt.

9) The Union confirmed that it held a current certificate of independence. The Union said that it had copied its application and supporting documents to the Employer on 13 August 2020.

4. Correspondence between the Employer and the CAC following the Union’s application

10) The Employer was asked to provide a response to the Union’s application by 21 August 2020. On 21 August 2020 (time sent given as 10.15) the HR Manager sent the following email to the Case Manager:

Apologise (sic) for the late reply.

I just wanted to let you know that the Directors of the Gallery are in the process of writing to Miss Naomi Taylor of BECTU trade union directly regarding the union’s recognition.

So please bear with us until this informal process and meeting is completed. If this is unsuccessful then we will take the formal approach with CAC.

The Case Manager’s response to this email is recorded in the paragraph below.

11) On 26 August 2020 the Case Manager wrote to the HR Manager, so far as is material, in the following terms:

I acknowledge receipt of your email dated 21 August 2020. The statutory recognition procedure operates in accordance with tight statutory deadlines.

As you are aware your response to the Union’s application was due on 21 August 2020.

I contacted you immediately on receipt of your email of 21 August 2020 to inform you that, in the absence of a request for a stay in proceedings by the Union, the Employer’s response form remained due that day. I received an out of office message stating that you were on leave until 31 August 2020.

I have established that the Union does not wish these proceedings to be stayed.

If I do not receive the completed Employer’s response form from you by noon on Wednesday 2 September 2020 the Panel will have no option but to decide whether the Union’s application should be accepted exclusively on the basis of the evidence before it at that time. You should note that this delay in providing your response is already considerably longer than we would normally consider ….

If you have any questions please do not hesitate to contact me ….

12) On 2 September 2020 (time sent given as 13.30) the Employer’s Director sent the following email to the Case Manager:

You wrote on the 26 August to [SI] the Whitechapel Gallery’s HR manager regarding an application for recognition by BECTU. The initial request was presented to her by Naomi Taylor on 23 July 2020.

The Whitechapel Gallery is a small educational charity with a strict governance code to which we are bound to adhere by our stakeholders such as the Arts Council of England; and statutory bodies such as the Charity Commission.

It is required that a matter relating to employment procedures of this gravity must be discussed by the senior management team; our Finance Sub-Committee and our Board of Trustees.

The Covid crisis has necessitated us placing most of our team on furlough so we are working with a skeleton staff. During August there are no Senior Management meetings to enable colleagues to take annual leave. Our Board of Trustees meets quarterly with the next meeting scheduled for October.

My colleague explained therefore that we could not make a formal response to this request until September. She was told that BECTU members ‘felt that was too far away’. Furthermore that if no response was received within ten days the request would be submitted to your organisation.

It is extraordinary that neither of your organisations appear to respect our basic codes of governance; and feel that it is appropriate to pressure SI also to disregard these procedures - which she rightly declined to do.

BECTU have not informed us how many union members they have at the Whitechapel Gallery. Colleagues belong to a variety of trade organisations so it is not clear why this would be appropriate for us. In the event of any negotiation or dispute we encourage colleagues to invite their individual union representatives.

The Whitechapel Gallery is dedicated to the well being of its staff. We take pride in the fact that while the arts are in the depth of a financial crisis we have protected everyone’s job. Nonetheless, we have a small team with very modest resources and may not be in a position to take on the administrative obligations that such recognition may necessitate.

I am writing therefore to request the following:

• BECTU inform us how many members they have – if it is less than 10 per cent of the staff it is difficult to see how the union could conduct ‘collective bargaining’

• an explanation of what this recognition requires in administrative, legal and financial terms

• the proceedings are put on hold until we can fulfil our own governance obligations which require that we discuss the request with the appropriate groups as follows:

a) the Senior Management Team – 7 September 2020

b) the Finance Sub Committee – 21 September 2020

c) the Board of Trustees – 19 October 2020

Without the endorsement of these three entities it is not possible for us to proceed.

I look forward to hearing from you.

5. Considerations

13) 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 Union’s application and the subsequent correspondence between the Employer and the CAC in reaching its decision. The Panel is satisfied that the Employer has had an adequate opportunity to respond to the Union’s application and that it was appropriately and adequately informed of the consequences of failing to do so. In accordance with the Case Manager’s letter to the Employer of 26 August 2020 the Panel has decided that it had no option but to decide whether the Union’s application should be accepted exclusively on the basis of the evidence before the Panel at the time of this decision. The Panel makes further remarks about the importance of adherence to statutory deadlines in its concluding observations in paragraphs 17 -19 below.

14) 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. The Panel is also 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 paragraph 36(1)(a) and paragraph 36(1)(b) are met.

6. Paragraph 36(1)(a)

15) 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. In this case the Union, in its application, claimed a membership density of more than 50%. In the absence of any evidence to the contrary the Panel is satisfied that, on the balance of probabilities, 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.

7. Paragraph 36(1)(b)

16) 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. For the reason in paragraph 15 above the Panel has decided, in the absence of any evidence to the contrary, and on the balance of probabilities, that the level of union membership is more than 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 Union also stated that it would be happy to provide a survey showing that over 50% of the staff in the bargaining unit were in support of recognition. 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.

8. Concluding observations

17) The statutory recognition procedure operates in accordance with tight statutory deadlines and it is not open to an Employer unilaterally to ignore those deadlines and thus obstruct the process. This is reflected in paragraph 11(1)(a) of the Schedule which allows a union to apply to the CAC not only if an employer rejects a union’s request but also if an employer fails to respond to a request within the period of 10 working days starting with the day after that on which the employer receives the request (the “first period”). The timing of making a request is a matter for a union. The timing of an application to the CAC is also a matter for a union subject either to the first period having expired in the circumstances outlined above or, where an employer during the first period informs the union that it is willing to negotiate, the expiry without agreement of the “second period” of 20 working days starting with the day after that on which the first period expires or such longer period so starting as the parties may from time to time agree. The Schedule thus gives the employer significant additional time to respond to a union’s request if it indicates during the first period that it is willing to negotiate. It remains open to the parties jointly to explore a voluntary recognition agreement at any stage of the statutory process prior to a declaration of recognition, and they may jointly request the Panel to grant a stay in proceedings to allow this to occur. However once a Union has made an application to the CAC then, provided that the first or second period as applicable has expired, the point has passed where it is open to the Employer alone to delay the process further.

18) Following a union’s application to the CAC the employer is asked to complete a form which requests factual information about the employer and offers the employer to challenge any aspects of the union’s application with which it disagrees or which it considers may be open to question. The importance of adherence to deadlines is emphasised in the letter from the CAC which accompanies this form. A copy of the CAC Guidance for the Parties booklet is attached and the employer is encouraged to contact the Case Manager in the event that the employer has any questions.

19) In this case, exceptionally, the Employer was given an extended period to complete the response form and the consequences of failing to complete the form were clearly explained in the Case Manager’s letter of 26 August 2020. The Panel hopes that the Employer will henceforth consider engaging in the statutory process in a timely fashion.

9. Decision

20) For the reasons given in paragraphs 14 to 16 above, the Panel’s decision is that the application is accepted by the CAC.

Professor Gillian Morris, Panel Chair

Mr Nicholas Childs

Mr Roger Roberts

04 September 2020

1. The individual concerned was named as the HR Manager in the Director’s email to the CAC dated 2 September 2020; see paragraph 12 below. ↩