Decision

Whether to Ballot Decision

Updated 24 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1302(2023)

20 June 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO HOLD A 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) The Schedule provides that where the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the unions, it must issue a declaration of recognition under paragraph 22(2), unless any of three qualifying conditions in paragraph 22(4) applies. Paragraph 22(3) requires the CAC to hold a ballot even where it has found there is a majority of union members in the bargaining unit if any of these conditions is fulfilled. The qualifying conditions are set out in paragraph 22(4). They are:

a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

b) a significant number of the union members within the bargaining unit inform the CAC that they do not want the unions to conduct collective bargaining on their behalf;

c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the unions to conduct collective bargaining on their behalf.

2. Unions’ submissions on the issue of majority membership

6) On 22 May 2023 the Unions were asked whether they claimed that they had majority membership within the bargaining unit and therefore submitted that they should be granted recognition without a ballot. 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.

3. Employer’s submissions on the issue of majority membership

7) On 25 May 2023 the Unions’ email was copied to the Employer and its submissions invited on the Unions’ claim to majority membership and on the paragraph 22 qualifying conditions as set out above.

8) In a letter dated 8 June 2023 the Employer submitted that two of the three qualifying conditions on which the CAC must order a ballot were met. In urging the CAC to order a ballot the Employer expressly relied on its letters and evidence previously submitted and asked for those letters and evidence to be taken into account in the context of considering whether the qualifying conditions were met.

9) First, the Employer argued that a ballot should be held in the interests of good industrial relations. The CAC should conclude that there was now a divided campus; and the scale of the division was substantial as there were two significant groups with starkly opposing views. The Employer believed that it was important that these groups of staff were united in a desire for a democratic approach, but to have a view imposed without any chance for a demonstrably fair process would result in long term damage to the relationship between colleagues who lived and worked together on campus. The Employer believed that good industrial relations should involve a democratic approach by giving workers a say in key decisions that were made, including as to recognition. This was what teachers at the College have had until now.

10) The Employer argued that it was abundantly clear that many teachers did not consider that recognition would be in their best interests; and the Unions did not address how recognition without any ballot would be consistent with good industrial relations. Recognition imposed on the teaching staff, without a ballot, would be detrimental to any future working relationship with the Unions and the Employer was unclear as to why the Unions did not, as democratic organisations, support a ballot as they were aware that the workers in the bargaining unit teachers were substantially divided.

11) The Employer firmly believed that if recognition was declared without a ballot, this would very substantially add to the existing sense of conflict and disharmony. What was required in the interests of good industrial relations was a democratic approach that would produce an outcome in which both sides could have faith.

12) Second, the Employer submitted that there was credible evidence from a significant number of union members in the bargaining unit that they did not want the Unions to be recognised. It referred to the number of signatories to the February 2023 petition which showed that at least a minimum of 27 union members (or 39% of the number of union members in the CAC’s most recent membership check), which was a very significant number of union members, opposed recognition. This number was not dissimilar to the proportion of union members that had indicated that they favoured a ballot so that they may express their views against recognition in that way. In addition, in the bundle of letters enclosed with the Employer’s submissions, 29 teachers had identified themselves as union members who opposed recognition. On this basis alone, and aside from the requirements of preserving good industrial relations, a ballot must be ordered.

13) Where there was a significant difference of opinion between the parties over the level of support for recognition, the outcome of a secret ballot scrutinised by a Qualified Independent Person would provide a clear mandate from the workers one way or other as regards their preference. A ballot, where both parties would be able to present their cases in a regulated environment, was the better way to resolve the issue here, clear the air, and would create a far more stable and respectful relationship in the future whatever the outcome.

4. Unions’ comments on the Employer’s submissions

14) The Employer’s submissions and the various attachments were copied to the Unions for comment. Included were copies of the letters supplied by the Employer from workers in the bargaining unit expressing a view on recognition. The signatories of a number of these letters had stated that they were union members. According to the breakdown of the status of the signatories that the Employer had prepared, 31 of the signatories were union members. In an email dated 12 June 2023 by way of comment the Unions stated that they did not believe it would help matters if they provided a detailed response to the documents submitted by the Employer. As the Panel had already identified, a lot of time could be spent discussing the merits of the various surveys and the manner in which the Employer had conducted them, and not make much progress. Therefore, in order to move things along, and in the interests of good industrial relations, the Unions would not object to a ballot being held, if the Panel believed it appropriate. However, in the interests of fairness, the Unions would request that any ballot was held in September or October of this year as the college term ended on 1 July 2023 and so a large proportion of the bargaining unit would not be on site and accessible.

5. Considerations

15) The Panel is satisfied that the Unions enjoy majority membership in the agreed bargaining unit and that this is so has not been contested by the Employer. The Panel has carefully noted the submissions of both o the parties especially the terms of the Unions’ email of 12 June 2023 in which they state that they did not object to a ballot being held if the Panel formed the view that it would be appropriate to do so. In circumstances where the majority of the workers in the agreed bargaining unit are members of the Unions, the Schedule requires the Panel to declare the Unions recognised unless it is satisfied that one or more of the qualifying conditions are met. Indeed, it states that we ‘must’ declare the Unions to be recognised unless we find that one or more of the qualifying conditions set out in paragraph 5 above are met. Notwithstanding the Unions lack of objection to a ballot taking place it is the CAC Panel that must decide whether or not one of more of the conditions is satisfied.

16) The Panel has given thorough consideration to each of the qualifying conditions in paragraph 22(4).

6. Condition 22(4)(a)

17) The Panel is persuaded that a ballot should be held in the interests of good industrial relations. In arriving at this conclusion, the Panel took into account the strong disagreement between the parties as to the level of support for recognition within the bargaining unit as well as the arguments between the parties as to the justification for collective bargaining all of which can be seen from the conflicting evidence that has been adduced during the course of this application. It has become clear to the Panel that because of the sheer totality of conflicting evidence, the best way forward for both parties, as well as the workers in the bargaining unit themselves, would be to clear the air, one way or the other. Without a ballot there will always be a question over the legitimacy of any declaration of recognition given this high level of contradictory evidence that has been submitted not only by the parties but that has also come direct from the workers themselves.

18) The Panel is of the view that a clear mandate from the workers through an independently conducted ballot would provide the necessary closure that would enable the parties to develop a successful working relationship. It will also provide certainty for the workers themselves.

7. Condition 22(4)(b)

19) The Panel is satisfied that this condition has also been met on the grounds that a significant number of union members have informed the CAC that they did not want the Unions to conduct collective bargaining on their behalf. According to the Employer a total of 31 members have signed letters stating that they did not want the Unions to be recognised. The Employer submitted these letters along with its submissions on 8 June 2023 and they were forwarded, along with the other attachments, to the Unions. Consequently, the Unions have had sight of these letters, they are aware of the identity of the signatories and they have not challenged their authenticity. When the last check of membership was conducted on 2 May 2023 there were 69 members in a 117 strong bargaining unit. Clearly 31 out of a total of 69 is a significant number and there has been no evidence produced which cast doubt on the credibility of these letters.

8. Condition 22(4)(c)

20) No membership evidence as defined in paragraph 22(5) had been produced that could lead it to conclude there were doubts whether a significant number of the union members within the bargaining unit wanted the Union to conduct collective bargaining on their behalf. The Panel is satisfied that this condition is not met.

9. Decision

21) The Panel’s decision is that, for the reasons given above, it is satisfied that a majority of workers constituting the bargaining unit are members of the Unions.

22) The Panel finds that the qualifying conditions in paragraph 22(4)(a) and (b) of the Schedule is fulfilled and therefore a ballot should be held in the interests of good industrial relations and on the basis that a significant number of the union members within the bargaining unit have informed the CAC that they do not want the Unions to conduct collective bargaining on their behalf. Accordingly, the Panel gives notice under paragraph 22(3) that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit will be asked whether they want the Unions to conduct collective bargaining on their behalf.

Panel

Mr Tariq Sadiq, Panel Chair

Mr Mustafa Faruqi

Mr Steve Gillan

20 June 2023

---

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%. ↩