Decision

Form of Ballot Decision

Updated 24 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1302(2023)

6 July 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON FORM OF BALLOT

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.

3) By a decision dated 7 March 2023 the Panel accepted the Unions’ application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. On 12 April 2023 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was “Teachers and Early Career Teachers employed by Radley College, excluding the Warden (Headteacher) and the Sub Warden (Deputy Headteacher). For the avoidance of doubt, the bargaining unit includes all other teaching members of the Senior Management Team (SMT) save for the Warden and Sub Warden”. This bargaining unit differed from that originally proposed by the Unions by the exclusion of the Sub-Warden.

4) As the agreed bargaining unit differed from that proposed by the Unions in their application, the Panel was required by paragraph 20 of Schedule A1 to the Act (the Schedule) to decide whether the Unions’ application was valid or invalid within the terms of paragraphs 43 to 50 of the Schedule. By a decision dated 22 May 2023 the Panel determined that the application was valid for the purposes of paragraph 20 and that the CAC would therefore proceed with the application.

5) In a letter from the Case Manager dated 22 May 2023, the Unions were asked whether they claimed that a majority of workers constituting the bargaining unit were members of the Unions. The Unions, in an email dated 24 May 2023, submitted that the membership check ^{[footnote 1]} supported their claim that they had the majority of members in the bargaining unit and, as such, they believed it was in the best interests of all concerned for recognition to be granted without a ballot.

6) In a letter dated 8 June 2023 the Employer submitted that a ballot should be held in the interests of good industrial relations and, in addition, it also forwarded to the CAC a bundle of letters wherein 29 teachers had identified themselves as union members who opposed recognition. The Panel determined that this was a case in which a ballot should be held, both in the interests of good industrial relations and on the basis that it had received evidence, which it considered to be credible, from a significant number of the union members within the bargaining unit that they did not want the Unions to conduct collective bargaining on their behalf.

7) In a decision dated 20 June 2023 the Panel gave notice to the parties in accordance with paragraph 22(3) of the Schedule that it intended to arrange for the holding of a secret ballot. In a letter dated 20 June 2023 the Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5) of the Schedule, before arranging a secret ballot. The parties were also asked for their views on the form the ballot should take.

2. Issues

8) The notification period under paragraph 24(5) ended on 3 July 2023. The CAC was not notified by the Unions or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2) of the Schedule.

3. Unions’ submissions on the form of ballot

9) In an email dated 26 June 2023 the Unions stated their preference for a postal ballot adding that they were in touch with the Employer and are making arrangements to meet to discuss access arrangements. The Unions also wished to advise the Panel that as the Employer is a school the term would end next week and all the employees in the bargaining unit would disperse. In order to ensure fairness and to enable access to the employees the Unions would request that there was an extension to the timeframes to enable the ballot to be run in September when the school opened for the new term.

4. Employer’s submissions on the form of ballot

10) In a letter dated 26 June 2023 the Employer informed the Panel that the College’s term would end on 1 July 2023 from which point teachers were not required to perform duties and were free to travel and be absent as they saw fit without notifying the College. Hence, if it was determined that a ballot should occur within the strict time limits set by the Schedule, the Employer would suggest that it comprised a workplace ballot with a postal option as a necessary way to enable participation by those who were away. The Employer would be happy to facilitate this approach as guided by the qualified independent person.

11) The Employer also saw merit in the Unions’ suggestion as a delay to the ballot would, given the particular nature of the workplace, give the best opportunity for staff access by the parties and, moreover, participation in the ballot itself. The new term would commence on 5 September 2023 and if undertaking a ballot after this date, then the Employer would submit that a workplace ballot would be appropriate as all members of the bargaining unit worked on the College campus and there was no reason to believe there would not be appropriate and free engagement in the next stage of the process.

12) It would be vitally important to the College that term was allowed to start ordinarily and the Employer did not want the distraction of a ballot to get in the way of a new school year. Consequently, the Employer suggested the qualified independent person be appointed from 11 September 2023, and the twenty-day period commences from then.

13) As a number of teachers would be leaving the College at the end of term, and new teachers joining at the start of the new school year there would be a change in the composition of the bargaining unit of around 10%; as such it made sense that access arrangements were delayed until after the start of term.

5. Considerations

14) When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate.

15) The parties have put forward two different types of ballot for the Panel to consider. The Unions have argued for a postal ballot, whereas the Employer has submitted that the ballot should be held in the workplace.

16) The Panel has considered carefully the arguments put by the parties and has concluded that a postal ballot would be the appropriate form of ballot in this case. There is no evidence whatsoever that a workplace ballot would be affected by unfairness or malpractice but holding the ballot by post would allow workers to arrive at a decision in a neutral environment away from the immediate workplace without the possible danger of undue influence from either party.

17) The Panel has also taken into account the relative cost of a workplace and a postal ballot, which is one of the statutory criteria upon which the Panel must take into account when arriving at a decision. Further, in our view a postal ballot would also be less disruptive to the normal day to day activities within the College than a workplace ballot conducted during the working day.

18) The Panel has noted the Unions’ request that this ballot be conducted during the early part of the new term in September or October 2023. The Employer has suggested that the qualified independent person be appointed from 11 September 2023 with the twenty-day balloting period commencing the following day. The Panel is content to accede to this request given that both parties consent to the delayed start to the ballot. The Panel would hope that the parties would use the intervening time well and agree the terms of an access agreement so that the ballot can commence on the day indicated.

6. Decision

19) The decision of the Panel is that the ballot be a postal ballot.

20) The name of the QIP appointed to conduct the ballot will be notified to the parties in due course as will the period within which the ballot is to be held.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Mustafa Faruqi

Mr Steve Gillan

6 July 2023

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1. This refers to the check undertaken on 2 May 2023 as referred to in paragraphs 8-10 of our decision of 22 May 2023. According to the Case Manager’s report, the number of union members in the agreed bargaining unit was 69, a membership level of 58.97%. ↩