Decision

Acceptance Decision

Updated 24 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1302(2023)

14 March 2023

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:

NASUWT & NEU

and

Radley College

1. Introduction

1) NASUWT & NEU (the Unions) submitted an application to the CAC on 3 February 2023 that they should be recognised for collective bargaining by Radley College (the Employer) for a bargaining unit comprising “Teachers and Early Career Teachers (excluding the Headteacher) employed by Radley College” which is in Abingdon, Oxfordshire. The CAC gave both parties notice of receipt of the application on 6 February 2023. The Employer submitted a response to the CAC dated 10 February 2023 which was copied to the Unions.

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 Mr Tariq Sadiq, Panel Chair, and, as Members, Mr Mustafa Faruqi and Mr Steve Gillan. The Case Manager appointed to support the Panel was Kaniza Bibi.

2. Issues

3) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Unions’ 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 Unions’ application

4) In its application the Unions said that they had written to the Employer with a formal request for recognition on 31 October 2022. The Employer responded to the Unions’ request on 14 November 2022 stating that it did not accept the request but was willing to negotiate with a view to exploring whether an agreement could be reached. The Unions met with the Employer on 7 December 2022 to discuss the prospect of a voluntary agreement. While the Employer were receptive to hearing the Unions’ views, it expressed a need for more time to think about the matter. To date the Employer has not agreed to enter into discussions. A copy of the Unions’ letter of 31 October 2022 and Employers reply of 14 November 2022 were enclosed with the application.

5) According to the Unions, there was a total of 529 workers employed by the Employer with 115 of these falling within the proposed bargaining unit. Asked to state the number of members in the proposed bargaining unit the Unions said “Evidence can be provided for statisical check but it is over 50% of bargaining unit” (sic). Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Unions said that “Evidence can be provided in confidence on request”.

6) When asked to give its reasons for selecting the proposed bargaining unit, the Unions stated that they were teaching unions and it was the teachers who wished to be recognised. They formed a specific bargaining unit within the Employer’s structure. The Unions confirmed that the bargaining unit had not been agreed with the Employer.

7) The Unions confirmed that they had current certificates of independence and, asked to provide any available evidence that the unions concerned would cooperate with each other and enter single table bargaining arrangements the Unions stated “Please see the iniital application which is joint and supported by the NEU” (sic). The Unions stated that they copied the application and supporting documents to Employer on 31 October 2022 ^{[footnote 1]}.

8) Finally, the Unions said there had not been a previous application in respect of this or a similar bargaining unit ^{[footnote 2]} and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit.

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

9) The Employer stated that it had received the Unions’ formal request for recognition on 31 October 2022. When asked what its response was, the Employer stated “Letter dated 14 November 2022: copy attached”.

10) When asked to give the date it received a copy of the application form directly from the Unions, the Employer stated this was 3 February 2023. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form adding “We had discussed the definitions around the possible bargaining unit”. Asked if it agreed the bargaining unit the Employer responded “For discussion, as part of ongoing discussion around the possibility of voluntary recognition”.

11) The Employer stated that it employed 529 workers excluding IR35 workers. The Employer agreed with the Unions’ figure as to the number of workers in the bargaining unit. When asked to give reasons for disagreeing with the Unions’ estimate of its membership in the bargaining unit, the Employer answered “Despite requesting details, we have not been supplied with membership numbers from the Unions.”. When asked to give reasons if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, the Employer referred to its detailed covering letter of 10 February 2023 and attachments which it submitted along with its response to the application. The Employer referred to an anonymous survey it conducted in in December 2022 to canvass views to help it inform discussion with the Unions around the prospect of voluntary recognition. Of a prospective bargaining unit of 115 the response rate was 67%. Those voting in favour of recognition was a total of 30, i.e. 39% of those who voted and 26% of the proposed bargaining unit. The context of the petition initially organised by local union members was a period of uncertainty over consultation as to whether continued membership of the TPS was on offer. Since the group consultation has ended, the context had changed as staff could now stay in TPS and the updated views of teaching staff had been sought which showed a different conclusion. Additionally, colleagues claiming to represent a majority of teachers within the prospective bargaining unit had submitted in recent days that they did not wish there to be union recognition. They say that 62 out of 115 did not support this. They say they had names, albeit there was anxiety in relation to confidentiality. The decision to trigger an application to the CAC for statutory recognition was taken, according to the Unions, because that was what members wanted. The Employer contended that there was no clear evidence that a majority was currently in favour of recognition and that the petition being relied upon from last term was flawed and unreliable. Furthermore, the more up to date evidence pointed to a majority not being in favour of recognition. Union representatives had emailed colleagues who took a different view to them suggesting strongly that they not encourage debate within the bargaining group. A Union representative had sent emails to the whole bargaining unit containing incorrect and therefore misleading information.

12) The Employer confirmed that there was no recognition agreement in place covering any of the workers in the proposed bargaining unit. When asked whether, following receipt of the Unions’ request, the Employer had proposed that Acas be requested to assist, the Employer answered “No”.

13) Asked if it wished to put forward a case that the Unions would not co-operate with each other the Employer stated that it had had one joint meeting with officials from each union. This was constructive and cooperative in its approach, and it believed one union to be taking the lead, but it was not yet clear that there was clear cooperation or whether they had a memorandum of understanding between them.

14) Finally, when asked if it was aware of any previous application under the Schedule by the Union in respect of this or a similar bargaining unit the Employer answered “n/a”.

5. The membership and support check

15) 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 unions (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the unions 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 Unions would supply to the Case Manager a list of their paid up members within that unit including their full names and dates of birth and a copy of a petition in support of recognition. 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 16 February 2023 from the Case Manager to both parties. The information from the Employer was received by the CAC on 22 February 2023, and from the Unions on 20 and 21 February 2023.

16) The list supplied by the Employer contained the names of 115 workers and the list of members supplied by the Unions contained 75 names.

17) The Unions also provided a petition, which was headed with the NEU’s logo and contained 93 names/signatures. The petition consisted of 34 A4 sheets with columns headed: “Print full name”, “Are you a member of a TU”, and “Signature”. The proposition of the petition read as follows:

“We, the undersigned, would like Radley College to formally recognise the NASUWT and NEU for collective bargaining purposes for all terms and conditions of employment for those Teaching Dons in Common Room who are directly employed by the College.”

18) According to the Case Manager’s report, the number of union members in the proposed bargaining unit was 70, a membership level of 60.87%. The check of the petition showed that it had been signed by 83 workers in the proposed bargaining unit, a figure which represents 72.17% of the proposed bargaining unit. Sixty of the petition signatories were members of the Unions and 23, that is 20% of the petition signatories, were non-members. A report of the result of the membership check was circulated to the Panel and the parties on 23 February 2023 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

6. Parties’ comments on the membership check

19) In an email dated 1 March 2023 the Unions stated that they felt the report supported their application and, as such, had no comments to make at this moment in time.

20) In a letter dated 1 March 2023 the Employer asked the Panel to consider the contents and attachments of its letter alongside the contents and attachments to its letter of 10 February 2023 ^{[footnote 3]} in determining if the Unions’ application should be accepted.

21) In view of the findings of the membership and support check, under the test in paragraph 36 (1)(a), the Employer agreed that members of the unions did constitute at least 10 per cent of the proposed bargaining unit. However, as to the test in paragraph 36(1)(b), the Employer did not accept that it can reasonably be determined on the evidence available that a majority of workers constituting the relevant bargaining unit would be likely to favour recognition of the union (or unions) as entitled to conduct collective bargaining on behalf of the bargaining unit.

22) More recent evidence suggested that a majority were not likely to favour recognition specifically: (i) the Employer’s own survey in December 2022; and (ii) representations and soundings directly from those opposing recognition that made clear that recognition was not favoured by the majority. The Employer also submitted a number of letters and emails setting out the strength of feeling within the proposed bargaining unit against the possibility of union recognition. Included was a petition which the Employer stated was conducted by members of the proposed bargaining unit that had been “sufficiently concerned by the possibility of their previous representations not being considered that, pending the findings of the membership and support check, they started their own petition in opposition to collective bargaining”. The petition was provided to the CAC on a confidential basis so it could be subject to the same scrutiny as in the recent membership and support check. It was reasonable and appropriate, in the interests of dealing fairly between the parties, to have regard to this new evidence because it provided conclusive and up to date evidence at the point when the CAC would consider the issue of likely support for recognition. Further, it fatally undermined the inference that may in some cases be drawn at this stage of the process from the CAC’s membership checks. This was because union membership could not in these circumstances be reasonably said or assumed to equate to support for recognition.

23) Under paragraph 36, the CAC should not accept an application unless a majority of workers in the bargaining unit would be likely to favour recognition. Consequently, the Employer believed the CAC should now reject the application, notify the parties of that decision, and take no further steps under the Schedule as required in paragraph 20(4).

24) Having been informed that it had been invited to comment on the results of the membership and support check rather than to submit fresh evidence, the Employer wrote again on 1 March 2023 confirming that its earlier letter of 1 March 2023 amounted to its comments on the membership check and what should or should not be inferred from that. It then went on to argue that there was no bar on further evidence being submitted at this stage quoting the CAC’s guide as well as the Schedule in support of its position. It submitted that it therefore had the ability to adduce further evidence and to do so was in keeping with the CAC’s guidelines which were clear that the parties could and should take the initiative and produce evidence.

25) It added that the evidence, in the form of the new petition, came from within the bargaining unit, and not the College, with an expressly stated desire that it be considered by the CAC. It argued that to exclude the evidence would be unreasonable in this context and because it went directly to the key issue of majority support which the Panel had to determine at this stage. As to confidentiality, while the Employer appreciated that material it provided may be shared by the CAC as appropriate, and of course accepted that, it was simply asking the CAC to exercise its judgement in the fair and reasonable treatment of both parties, especially in relation to the processing of personal data

7. Considerations

26) 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.

27) 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 12 of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

28) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Unions constitute at least 10% of the workers in the Unions’ proposed bargaining unit. In this case the check of membership established that there were 70 members in a 115 worker bargaining unit giving a combined membership density of 60.87%. In its comments on the report the Employer acknowledged that the Unions satisfied the test under this provision.

9. Paragraph 36(1)(b)

29) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit. The Case Manager’s check of the Unions’ petition against the list of 115 workers provided by the Employer indicated that 83 of the petition signatories were workers from within the proposed bargaining unit, a support level of 72.17%. The petition was signed by 23 non-members amounting to 20% of the total. The wording on the petition is set out in paragraph 17 above. The Panel believes the proposition to be clear and unambiguous. The call for the Employer to “formally recognise the NASUWT and NEU for collective bargaining purposes” would leave the signatory in no doubt what they were being asked to support and the Panel is not persuaded by the assertion that those workers in the bargaining unit were not aware of what they were signing. It is an exceedingly short proposition. It is not one that is lengthy and confusing but brief and to the point.

30) The Employer urged the Panel to set aside the evidence contained in the Unions’ petition, which was signed and dated by workers and produced by the Unions as part of the membership and support check and instead, to take into account the results of its own anonymous survey which was conducted in December 2022. This anonymous survey, according to the Employer, showed only 26% of the proposed bargaining unit were in favour of recognition. However, this survey was not put forward at the time of the membership and support check .

31) When the Case Manager’s report was issued to the parties and comments invited, the Employer sought to produce fresh evidence in the form of a petition which it said had been conducted by members of the bargaining unit. The Employer did not wish this petition to be divulged to the Unions although it fell outside the agreement made by the Case Manager with the parties regarding the production of confidential information for the check to take place. The Employer was duly informed that the invitation to comment was not an invitation to submit fresh evidence.

32) The Panel takes the view that the parties had the opportunity to provide all relevant evidence before the membership and support report was compiled. That this petition was not produced at that time was no mistake or oversight. If the Employer was permitted to adduce fresh evidence, which it states it did not compile but was prepared by a third party, then this could inevitably lead to delays as the other party to the application would then wish the opportunity to respond and may even perhaps wish to put its own counter evidence on the table. This would lead to a veritable merry-go-round as parties attempted to trump each other with evidence that supported their respective case whilst at the same time preventing the CAC from being able to reach a decision as to whether or not the application should be accepted. Statute sets a 10-working day deadline for the CAC to arrive at such a decision and whilst it can be extended by a Panel, nonetheless this is a clear indication that the decision at this stage of the process is one that should be arrived at without undue delay. The Panel has concluded that it must base its decision on the evidence and facts before it in the shape of the report on membership and support and the parties’ comments thereafter excluding any fresh evidence submitted out of time.

33) Given that 60.87% of the bargaining unit are members of the Unions and that more than 70%of the workers signed the Unions’ petition in support of recognition, the Panel is satisfied that, in accordance with paragraph 36(1)(b) of the Schedule, on the balance of probabilities, a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions.

10. Decision

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

Panel

Mr Tariq Sadiq, Panel Chair

Mr Mustafa Faruqi

Mr Steve Gillan

14 March 2023

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1. This is the date of the Unions’ formal request for recognition rather than the date it copied the application to the Employer. ↩

2. There had been a previous application under reference TUR1/1300/2023 which was withdrawn by the Unions before any decision was made. ↩

3. This was the Employer’s six page covering letter along with its response form and 9 attachments. ↩