Decision

Acceptance Decision

Updated 16 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1259(2022)

16 May 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

National Education Union (NEU) &

National Association of School Masters Union of Women Teachers (NASUWT)

and

St Christopher School

1. Introduction

1) The NEU and NASUWT (the Unions) submitted an application to the Central Arbitration Committee (the CAC) dated 14 March 2022 that they should be recognised for collective bargaining purposes by St Christopher School (the Employer) in respect of a bargaining unit comprising “Teachers and newly qualified teachers (excluding headteachers and teachers employed on contracts less than six months) employed at St Christopher School.” The location of the bargaining unit was given as “St Christopher School, Barrington Road, Letchworth, Herts, SG6 3JZ.” The application was received by the CAC on 15 March 2022 and the CAC gave both parties notice of receipt of the application by a letter of the same date. The Employer submitted a response to the CAC dated 21 March 2022 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Steve Gillan. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 29 March 2022. The acceptance period was extended on two further occasions to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 16 May 2022.

2. Issues

4) 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. Summary of the Unions’ application

5) The Unions stated that they had sent their request letter to the Employer on 14 January 2022. The Employer responded by letter dated 27 January 2022 in which it informed the Unions that, “We feel that there are sufficient whole school mechanisms in place to be able to understand and respond to the whole school voice.” A copy of the Unions’ request and the Employer’s response to that request were attached to their application.

6) When asked whether the Unions had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Unions answered “No”. The Unions stated that following receipt of their request for recognition the Employer had not proposed that Acas should be requested to assist the parties.

7) The Unions stated that the total number of workers employed by the Employer was 200, and there were 63 workers in the proposed bargaining unit, of whom 48 were members of the Unions.

8) 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 Unions explained that it carried out a survey of all teachers in the bargaining unit, that was signed by 51 teachers who supported trade union recognition. The Unions offered to supply the CAC with a copy of their survey.

9) When asked for its reasons for selecting their proposed bargaining unit, the Unions stated that the NASUWT were teachers’ trade unions. They were recognised for collective bargaining for teachers in maintained schools and colleges. The NASUWT and NEU represented the majority of teachers in the school.

10) The Unions confirmed that they held certificates of independence. Finally, the Unions stated that they had copied their application and supporting documents to the Employer on 14 March 2022.

4. Summary of the Employer’s response to the Unions’ application

11) In its response to the Unions’ application the Employer stated that it had received the Unions’ written request on 14 January 2022. The Employer stated that the Unions’ request was received, acknowledged, and discussed amongst the Governing Body and Senior Leadership Team. By letter dated 27 January 2022 the Employer declined the Unions’ request for the reasons set out below. A copy of the Employer’s letter to the Unions was attached to the Employer’s response.

12) The Employer stated that it had received a copy of the Unions’ application form from the Unions on 14 March 2022. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Unions, nor did it agree now with the proposed bargaining unit. The Employer stated that, following receipt of the Unions’ request, it had not proposed that Acas be requested to assist. The Employer further stated that the Unions’ application arrived by email, with no warning, and therefore proposing Acas’ assistance was not appropriate at that time.

13) When asked whether it agreed with the number of workers in the proposed bargaining unit as set out in the Unions’ application, the Employer explained that the number was unknown as it did not know the level of union membership amongst the teaching element of the whole staff body. There were 200 staff in total with the support staff, who made up over 50% of that number.

14) When asked whether there was an existing agreement for recognition in force covering workers in the proposed bargaining unit, the Employer answered “Yes”. The Employer explained that there was a Benefits Committee, which reported directly to the main Governing Board, along with a well-established Staff Association. Both represented the whole staff body and had representatives from that wide group. The Staff Association considered any and all matters and subsequently linked into the Head to explore further opportunities. Its purpose was to review the benefits package across the whole school staff and make recommendations to the Board so that benefits were linked to the recruitment, motivation/wellbeing and retention of staff. The committee comprised a minimum of one Governor, one member of SLT, two members of the academic staff (one from the senior school and one from the junior school) and one member of the non-academic staff, although in reality, more had attended / engaged with membership. All staff were able to attend and observe meetings and the staff representatives included a signatory to the November 2021 “supporting survey”. The Committee was formed and communicated to all staff on 27 September 2021. The Employer attached to its response a copy of the Terms of Reference for the Benefits Committee. The parties to the agreement were the whole school staff and Board of Governors. When asked whether the Union had a certificate of independence the Employer answered “N/A”. Finally, the Employer said that the agreement had been in effect, “since creation.”

15) In answer to the question whether it disagreed with the Unions’ estimate of membership in the proposed bargaining unit, the Employer stated that it was not party to information regarding Union membership within the school and therefore it could neither agree or disagree with the Unions’ estimate.

16) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer said that there had been no interest or stated requirement from any of the staff or union previously. The pensions situation had now been resolved following a full, formal and legal process. The pensions consultation was an understandably difficult process for the teaching staff. It was, though, equally challenging for the wider school staff who were not in that pension scheme. The Employer said that it prided itself on being a cohesive community working collaboratively and against the backdrop of a global catastrophe, staff aimed to work through this process with respect for the different impact on each employee group. It was however a period when emotive rhetoric from some teachers ran high. This was reported as being damaging and unpleasant and caused deep upset and divisions across the staff community and reverberated as far as the wide parental body. Significant effort had made to repair those strained relations and the Benefits Committee was a prime example of the re-energised and positive working relationship across all sections of the school community.

17) The Employer stated that it was extremely concerned about individual behaviours by members of the teaching staff, on behalf of the Union(s), and that it had evidence of intimidation against other members of staff related to signatures on the supporting staff survey conducted in November 2021. The Employer maintained that this was exactly the type of divisive behaviour that would instantly erode the fundamental ethos of the school and it had worked extremely hard to mend relationships so that it could continue to be a progressive school with a positive environment for the development of the children.

18) The Employer said that it had evidence to believe that staff had been misled on elements of Employment Law. For example, the meaning and outcomes associated with Union Recognition. The survey conducted in November 2021 pre-dated the request from the Union for recognition and it did not indicate the purpose i.e. Collective Bargaining – so the Union assertion in question 12 of its application was incorrect. The Employer said that it had evidence to show that staff had been misled on elements of Employment Law. For example, the meaning of ‘Working under Protest’, and the management of Personally Identifiable Data and GDPR. The collective bargaining group that was already in place included a signatory to the November survey. The Employer believed that there was disconnect between the November survey and the current view.

19) The Employer further stated that all of the correspondence from staff to the Board was channelled through one member of staff without copy to those represented. Therefore, it was impossible to know if they agreed with what was stated on their behalf.

20) In response to the question as to whether the application was made by more than one Union and whether they wished to put forward a case that the Unions would not co-operate with each other, the Employer explained that union activity was initiated as a response to the TPS consultation, and therefore the NASUWT and NEU did not have a long history of working together at St Christopher School. In reality, any conversations between the Board and Unions had only had representation from the NASUWT. The Employer said that it was also noted that the application was from the NASUWT and it was not signed by the NEU. In addition, the answer to Question 15 in the application stated “NASUWT are Teachers Trade Unions.” The Employer emphasised that the NEU was excluded in this response. It was the Employer’s view that the Part 1 submission itself was not a good example of a joined-up approach.

21) Finally, the Employer stated “None known” when asked if it was aware of any previous application under the Schedule by the Unions in respect of this or a similar bargaining unit, and, “None received” when asked whether it received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

22) To assist in 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 and of a petition compiled by the Unions. 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 dates of birth) and a copy of a petition signed by workers in favour 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 April 2022 from the Case Manager to both parties.

23) The information from the Employer was received by the CAC on 19 April 2022, and from the Unions on 19 and 21 April 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

24) The list supplied by the Employer indicated that there were 63 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 46 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 43, a membership level of 68.25%.

25) The petition supplied by the Unions contained 51 names and signatures, of which 44 were in the proposed bargaining unit, a figure that represents 69.84% of the proposed bargaining unit. Of those 44 signatories, 34 were members of the Unions (53.97% of the proposed bargaining unit) and 10 were non-members (15.87% of the proposed bargaining unit). The petition consisted of 17 A4 sheets, which were set out as follows:

“To the Governing Body of St Christopher School, Letchworth.

I request that the school recognise the teaching unions, the NASUWT and the NEU.

Signed: …………………..

Name: ……………………

November 2021”

26) A report of the result of the membership and support check was circulated to the Panel and the parties on 25 April 2022 and the parties were invited to comment on the results of that check by noon on 28 April 2022.

6. Summary of the parties’ comments following the membership and support check

27) No comments were received from either party.

7. Considerations

28) 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 submissions of both parties and all the evidence in reaching its decision.

29) The Panel is satisfied that the Unions 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. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. The Panel notes that in its response to the application the Employer stated that there was an existing recognition agreement in force covering workers in the bargaining unit in the form of Benefits Committee, of which the terms of reference were documented and attached to its response. This is not an agreement with an independent union. The Panel has therefore concluded that, on the basis of the evidence before it, the Panel is not satisfied that there is already in force a collective agreement under which a union is recognised as entitled to conduct collective bargaining on behalf of any workers falling within the proposed bargaining unit. The application is not, therefore, rendered inadmissible by the provision in paragraph 35 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.

8. Paragraph 36(1)(a)

30) Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the unions constitute at least 10% of the workers in the proposed bargaining unit.

31) The membership check conducted by the Case Manager (described in paragraphs 22 – 24 above) showed that 68.25% of the workers in the proposed bargaining unit were members of the Unions. As stated in paragraph 23 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

32) 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 unions as entitled to conduct collective bargaining on behalf of the bargaining unit.

33) For the reasons given in paragraph 31 above the Panel has concluded that the level of union membership within the bargaining unit stands at 68.25%. 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 Unions. No such evidence to the contrary was received in this case. The Panel also notes that the support check conducted by the Case Manager showed that 69.84% of workers in the proposed bargaining unit (44 out of 63 workers) had signed a petition in favour of recognition (see paragraph 25 above). Of those who had signed the petition 34 were Union members (53.97% of the proposed bargaining unit) and 10 were non-members (15.87% of the proposed bargaining unit).

34) On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that 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, as required by paragraph 36(1)(b) of the Schedule.

10. Decision

35) For the reasons given in paragraphs 29 - 34 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Rohan Pirani, Panel Chair

Mr Alastair Kelly

Mr Steve Gillan

16 May 2022