Decision

Acceptance Decision

Updated 16 February 2021

Case Number: TUR1/1189(2020)

25 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:

NEU & NASUWT

and

Bishop’s Stortford College

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC on 4 August 2020 that they should be recognised for collective bargaining by Bishop’s Stortford College (the Employer or the College) for a bargaining unit comprising “All teachers directly employed by Bishop’s Stortford College, including the Deputy Heads in the Prep and Senior School, excluding teachers on zero hours contracts, Teaching assistants, peripatetic Music teachers, and Heads”. The location of the bargaining unit was given as Bishop’s Stortford College, 10 Maze Green Road, Bishop’s Stortford CM23 2PJ. The CAC gave both parties notice of receipt of the application on 4 August 2020. The Employer submitted a response to the CAC dated 10 August 2020 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 Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mr Roger Roberts and Mr Steve Gillan. The Case Manager appointed to support the Panel was Nigel Cookson.

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 their application the Unions said that they had written to the Employer with a formal request for recognition in the prescribed form on 18 June 2020. A copy of the Unions’ request and subsequent correspondence was enclosed with the application. The Unions explained that an informal approach was made in 2019 which was discussed at length, but no agreement was forthcoming. The Unions engaged once more with the Employer in June and July 2020 but, as before, no agreement was reached.

5) According to the Unions, there was a total of 306 workers employed by the Employer with 137 of these falling within the proposed bargaining unit. The Unions stated that they had 98 members within the proposed bargaining unit. 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 their proposed bargaining unit comprised 137 teachers, 98 of whom were members of one of the applicant unions. This represented 72% of the bargaining unit. Over the course of more than a year, the Unions had held numerous meetings and had many discussions. They had also conducted indicative surveys and support for recognition had been overwhelming. When asked to give their reasons for selecting the proposed bargaining unit, the Unions stated that they had selected the unit on the basis that it consisted of a group of professional staff sharing the same general terms and conditions, mechanisms for pay increases and professional work concerns. It was a coherent and business efficient group to be collectively represented. It was readily identifiable as a group by those in it, the Employer, schools in general and the public. The Unions confirmed that the proposed bargaining unit had been agreed with the Employer.

6) 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. The Unions confirmed that they each held a current certificate of independence. The Unions stated that they had copied their application and supporting documents to the Employer on 4 August 2020.

7) Finally, the Unions said there had not been a previous application in respect of this or a similar bargaining unit 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

8) The Employer stated that it had received the Unions’ formal request for recognition on 18 June 2020. When asked what its response was, the Employer stated that it had been working with the Unions on a voluntary agreement and had drafted a voluntary agreement for their consideration. However, for one reason or another the Employer had not been able to meet the deadline for finalising the agreement and now proposed that the statutory recognition process be delayed whilst the parties brought matters to a conclusion. Such a delay would not deprive the Unions of their ability to negotiate on the next annual pay review in 2021.

9) When asked to give the date it received a copy of the application form directly from the Unions, the Employer stated this was on 4 August 2020. The Employer confirmed that it had not agreed the proposed bargaining unit prior to having received a copy of the completed application form but stated that that it was now in agreement. The Employer added that the key objection, however, was that there was insufficient support in the proposed bargaining unit for recognition as evidenced by a ballot of the proposed bargaining unit in February 2020, where more than 60% of the proposed bargaining unit voted against joint union recognition.

10) The Employer stated that it employed a total of 339 workers. The Employer did not agree with the Unions’ figure as to the number of workers in the bargaining unit, explaining that it had 151 staff designated as teachers, although it was in a state of summer transition, so numbers were in flux. Three were heads and therefore not included in the proposed bargaining unit leaving 148. At the time of the vote on union recognition in February 2020 the bargaining unit included 141 staff.

11) When asked to give reasons for disagreeing with the Unions’ estimate of its membership in the bargaining unit, the Employer stated that it had no reason to believe that the level of union membership indicated by the Unions was incorrect. The Employer made the point, however, that trade union membership was recommended to trainee and newly qualified teachers as a professional development and defensive step. The relevant trade unions supported teachers involved in internal procedures or those that were subject of safeguarding allegations. Membership of a trade union was therefore not an automatic indication of active support for union recognition. 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 said that it did not object to union recognition in principle, but the issue was one of democratic deficit. The Employer had conducted a ballot of all members of the proposed bargaining unit in February 2020 which secured below threshold support of 39% for union recognition. There was, however, almost unanimous support for a whole College consultative agreement. The Employer was unclear as to why a request for voluntary recognition had again been pursued within such a short period following the ballot.

12) The Employer’s position was that significant percentages of union membership did not indicate support, as evidenced by the ballot. If recognition were to be secured, then the Employer would feel compelled to pursue a second ballot to evidence any change in levels of support from that completed in February. In keeping with the democratic process conducted so far, the College requested that, in the interests of good staff relations, the teaching staff be given the opportunity to vote again to see if they had changed their minds.

13) 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, not yet as we were under the impression that we were moving towards voluntary recognition if staff were in favour”.

14) Asked if the Employer wished to put forward a case that the Unions would not co-operate with each other, the Employer stated that the NEU had considerably greater representative membership in the teaching staff than the NASUWT. It was, however, a matter for the Unions to ensure that they communicated effectively and meaningfully.

15) Finally, 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, the Employer answered “No other applications.”

16) The Employer’s response was copied to the Unions and their comments were invited. The Panel Chair also directed that the parties be asked for their views on whether the Unions’ letter of 18 June 2020, and upon which they relied as the formal request for recognition, was a valid request as required by the terms of the Schedule as, on its face, it did not specifically request that the Employer recognised the Unions in respect of the proposed bargaining unit for the purposes of collective bargaining.

5. Unions’ comments on the validity of its request for recognition and the Employer’s response

17) In a letter dated 13 August 2020, in respect of the query raised by the CAC in respect of the request of 18 June 2020 for recognition to the Employer, the Unions asserted that a valid request was made and was accepted as such by the Employer. The letter of 18 June 2020 explicitly stated that it was in relation to a request for recognition under Part I of the Schedule. It was made in writing, identified the relevant unions and the proposed bargaining unit. Amongst other things, it urged the Employer to reconsider and commit to sitting down with the Unions to shape the recognition agreement. It sought the Employer’s response to the Unions’ request and it was clear from the Employer’s response that it accepted the letter of 18 June 2020 as a request for recognition.

18) In this letter, the Unions proceeded to address the matter of the Employer’s request to delay the statutory process and reiterated its reasons as to why it did not believe any such delay was warranted.

6. Employer’s comments on the validity of the request

19) In a letter dated 21 August 2020 the Employer submitted that the Unions’ letter of 18 June 2020 did not specifically request that the Employer recognised the Unions in respect of the proposed bargaining unit for the purposes of collective bargaining. The Employer would therefore contest the validity of the request on this basis. The Employer then went on to state that it would, however, be prepared to withhold its objection to the validity of the request, if the Unions would agree to a short stay of the statutory process until 14 September 2020, as previously requested.

7. Parties’ comments on likely support for recognition

20) The Panel Chair, having had sight of the parties’ comments on the validity of the Unions’ request for recognition, directed that the Case Manager write to inform the parties that, whilst it would appear from the papers received that it was common ground that members of the Unions amounted to at least 10% of the workers constituting the proposed bargaining unit, it was clear that the parties had differing views on the question as to 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.

21) To assist the Panel with its deliberations on this point the parties were asked to provide further submissions on this particular test, specifically in relation to the conflicting evidence presented by the ballot conducted by the Employer in February 2020 which, it asserted, resulted in more than 60% of the bargaining unit voting against joint union recognition and the Unions’ reference to indicative surveys which, they said, showed overwhelming support for recognition.

22) In a letter dated 11 September 2020, the Unions firstly made a number of points in this regard. On the question of likely majority support, the Unions said that they could confidently state that the majority of the proposed bargaining unit supported recognition. The Unions’ combined membership represented 73% of the proposed bargaining unit. Support from members for recognition had been consistent and unambiguous throughout the period that the Unions had been discussing recognition. This desire for recognition was driven by the teachers at the College and not the Unions with the campaign being led by workplace representatives.

23) In preparation for a statutory application for recognition, during September and October 2019, the Unions conducted indicative ballots of their members. The members were asked a single, unambiguous, question, “Are you in favour of pursuing recognition of the NEU and NASUWT?”. The results were that 97% of members voted in favour and 3% against in a turnout of 78% ^{[footnote 1]}.

24) Since the ballot took place, a further 14 teachers had become members which was a clear indication of support for recognition in the proposed bargaining unit with the Unions now representing 73% of the bargaining unit having 97 of 133 teachers in the bargaining unit in membership.

25) The Employer accepted the proposed bargaining unit and also accepted that a clear majority of the bargaining unit were members of the Unions, although the parties disagreed on the precise number of workers in the bargaining unit - the Employer having stated 141 in its response whereas the Unions believed that the true bargaining unit comprised 133 teachers. The Unions contended that their significant membership density made this minor difference immaterial.

26) The Unions contended that the Employer had not produced any credible or reliable, evidence to dispute the reasonable claim that the majority of the relevant teachers were likely to support recognition. The Unions contended that the Employer’s ballot was of a different constituency and not limited to the proposed bargaining unit. It was neither fair, transparent, nor credible. It was misrepresented, biased, confusing, and lacked integrity. Confidence was further eroded by the lack of transparency and refusal of the Unions’ request to share any meaningful detail of the voting. As far as the Unions were aware, the vote on the Staff Forum, which asked a subsidiary question on recognition, was sent to all staff, including support staff and management.

27) The Unions argued that the Employer’s ballot had no integrity as the Employer knew how staff had voted and staff could change their votes after voting, which was confirmed in an email sent by the Employer’s Head of HR to all staff on 12 February 2020. It was also misrepresented in that staff understood that they were principally voting on an all-staff forum, rather than recognition for teachers. The vote was presented as a vote on a College Staff Forum. The Employer had stated that the Forum and union recognition were not mutually exclusive.

28) The Unions also argued that the ballot was biased in that the Employer sought to influence voting in biased comments sent to all staff on 6th February 2020 and disparaging remarks about the Unions in a school briefing. There was no opportunity for the Unions to make the case for recognition. It was also the case that many staff were confused by the ballot paper and did not understand that they could vote for both options.

29) Notwithstanding their strongly held assertion that the test of whether the majority of the proposed bargaining unit would be likely to support trade union recognition was satisfied by the high level of membership, clear vote outcomes, and lack of any credible evidence to dispute this, if the CAC required one, the Unions were confident that majority support would be shown in an independent ballot.

30) In a letter dated 14 August 2020 the Employer (prematurely) submitted its comments on the qualifying conditions in paragraph 22(4) of the Schedule arguing that a ballot should be held to decide whether or not the Unions were recognised rather than limiting its response to the question posed by the Panel as to likely support for recognition within the bargaining unit. The Panel has treated this letter as relevant at this stage only to the extent that it addressed the question of whether the majority of the proposed bargaining unit would be likely to support trade union recognition. The Employer firstly confirmed that it was common ground that members of the Unions constituted at least 10% of the workers constituting the proposed bargaining unit. It also confirmed its acceptance of the proposed bargaining unit.

31) The Employer did not have any evidence that the teachers wished the Unions to be recognised, as support fell below the 40% threshold as shown by the ballot in February 2020. If support staff were excluded from the ballot results, out of a possible 141 teacher votes, 55 voted for trade union recognition, whilst 91 voted for a Whole School Forum i.e. support for recognition was 39% whilst support for the Whole School Forum was 64%.

32) The Employer noted that the Unions had not produced evidence that their membership density had increased since union recognition had been first raised, arguing that if teachers were actively committed to recognition, an increasing density would be a logical expectation.

33) The Employer contended that it is the case that many teachers joined the Unions when entering the profession and remained passive members throughout their professional careers. The Employer argued that joining a Union was a defensive step at a time when teachers were at the coal-face of safeguarding and at risk of allegations by children and so density of membership was no true indication of support by the teachers for the Unions to negotiate collectively on their behalf.

8. Considerations

34) 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.

9. The request for recognition

35) Paragraph 4(1) states that the union or unions seeking recognition must make a request for recognition to the employer. Whilst the Employer did not take this point in its response, the Panel considered it necessary to address this condition for a valid application under the Schedule of its own motion given that the letter relied upon as constituting the requisite request for trade union recognition did not contain an explicit request for trade union recognition.

36) The Unions argued that the request upon which they relied was their letter to the Employer of 18 June 2020. Whilst this letter, on the face of it, made no explicit request in terms for recognition, it did urge the Employer to “reconsider and commit to sitting down with us to shape the recognition agreement”. The Panel assumes that there must have been an earlier request of sorts that resulted in the parties engaging in discussions over voluntary recognition as request to ‘reconsider’ rather than ‘consider’ does indeed imply that the question was asked at some earlier point. It is also clear to the Panel that the Employer, when it completed its response to the application, accepted the Unions’ letter of 18 June 2020 as its request for recognition.

37) Whilst the Unions’ letter of 18 June 2020 could have been expressed more clearly, the Panel is satisfied that the letter did contain a valid request for recognition under the Schedule when taken in the round and in its specific context on the basis that the letter indicated that a formal application for trade union recognition was being made, expressly referred to the Schedule, specified the proposed bargaining unit, asked for the Employer to respond within the statutory time limits and urged the Employer to “reconsider and commit to sitting down with us to shape the recognition agreement” - a statement which is clearly in the nature of a request – as well as the fact that the Employer, when it completed its response to the application, accepted the Unions’ letter of 18 June 2020 as its request for recognition.

38) The Panel is therefore satisfied that the request was a valid request for recognition. The Panel is also satisfied that the application was made in accordance with paragraph 12 of the Schedule in that before the end of the first period of 10 working-days following the Employer’s receipt of the request for recognition, the Employer refused the request but indicated a willingness to negotiate. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

10. Paragraph 36(1)(a)

39) 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 Union’s proposed bargaining unit. In their application the Unions claimed a membership density of 72% of the proposed bargaining unit based on it comprising 137 workers. In its response the Employer stated that it had no reason to believe that the Unions’ figure was incorrect. In its letter of 14 September 2020, the Employer went further and accepted that it was common ground that the Unions did have at least 10% of the workers in the now agreed bargaining unit in membership. It is clear to the Panel that members of the Unions do constitute at least 10% of the workers in the bargaining unit and that this test is satisfied.

11. Paragraph 36(1)(b)

40) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit. As stated above, it is common ground that a clear majority of the bargaining unit are members of the applicant Unions. The question for the Panel is how it should interpret the conflicting evidence put forward as to the views of the workers on union recognition. On the one hand the Unions refer to a ballot they conducted in late 2019 in which members were asked whether they were in favour of pursuing recognition of the Unions. We are told that 65 out of a total of 83 members voted in the ballot with 63 voting in favour of the Unions seeking recognition and two against. This would equate to 42.57% of the proposed bargaining unit being in favour of trade union recognition based on the figure of 148 workers in the bargaining unit - which was the figure given by the Employer at the time it completed its response, although it must be noted that the Unions dispute the accuracy of this figure.

41) On the other hand, the Employer relied upon a ballot that it had conducted to support its argument that the majority of the workers in the bargaining unit were not likely to support recognition of the Unions. It argued that the ballot it conducted in February 2020 demonstrated that the workers’ preference was for a whole staff forum rather than trade union recognition. According to the Employer, the teaching staff were presented with two questions in the ballot – one on the Whole School Forum and one on trade union recognition. The results of the ballot, limited by the Employer in its submissions solely to how those in the proposed bargaining unit voted, was that out of a total of 141 teacher votes, 55 voted for trade union recognition, whilst 91 voted for a Whole School Forum. This put support for union recognition support at 39% and support for the Whole School Forum support at 64%. The main thrust of the Employer’s arguments on the question of likely support was that, having regard to the results of its ballot, it was the proposed Whole School Forum rather than trade union recognition which gained greatest support and that, since a 61% majority of teaching staff did not support union recognition, it would not be democratic to impose recognition without putting the matter to another vote.

42) The Employer also argued that union membership, per se, could not be taken as indicative of support for recognition for collective bargaining as teachers, in the main, became trade union members when they entered into the profession for the other benefits associated with membership rather than recognition for collective bargaining purposes.

43) The Unions in turn made a number of observations on the Employer’s ballot which they wished the Panel to take into account. They argued that the Employer’s ballot was of a different constituency rather than limited to those in the proposed bargaining unit. They said that it was neither fair, transparent, nor credible and, apparently, staff could change their votes after voting. The Unions also said that the vote was presented as a vote on a Staff Forum rather than on recognition, the Unions had no access to the workers whilst the ballot took place and that the Employer knew how staff had voted. The Unions also criticised the shortness of the ballot period which opened on 6 February 2020 and closed the following day - however, after complaint, this was extended to 12 February 2020, although many had already voted.

44) The difficulty for the Panel in considering this test is how we assess likely support in the face of conflicting evidence provided by the parties, but this is what we must do. We remind ourselves that this test is one of likely support rather than one of definitive support and that we can draw on the industrial relations experience for which we were appointed to the CAC. We have concluded that, on balance, a majority of the workers in the bargaining unit would be likely to favour recognition of the Unions, taking into account the evidence before us and our collective experience of industrial relations. In reaching this conclusion we have carefully balanced all the submissions we received and in particular the following matters.

45) The Unions have very significant membership density which potentially points in favour of a majority of workers in the proposed bargaining unit supporting trade union recognition. However, the Employer argues in effect that, in the specific context of the teaching profession, teachers take up trade union membership for its wider benefits rather than trade union recognition and that therefore membership density alone is not a good indicator of likely support for trade union recognition. Against this, the ballot of their own membership indicated not only that 65 out of its 83 members – a very significant majority - voted in favour of recognition, thereby indicating that the majority of its membership does support recognition. The Unions’ ballot also indicated that those of their members voting in favour of recognition represented equated to 42.57% of the proposed bargaining unit. That said, we also bore in mind that that twenty members either failed to vote in the ballot or voted against the Unions being recognised. The reliability for these purposes of the Employer’s ballot appears open to debate given the Unions’ contentions that it was not conducted on a fair and equitable basis in that the Unions had no access at all to the workers to explain their case, the Employer controlled all aspects of the ballot which included permitting workers to change how they had voted, and the Employer’s ballot paper failed to make clear that workers could vote in favour of both options – recognition as well as the Forum. It was not a case that they were asked to pick one over the other. We do not consider it fruitful or possible conclusively to determine the validity of the Unions’ challenges to the process adopted by the Employer in relation to the Employer’s ballot but are mindful of the fact that it was conducted in the context of a proposal for a wider employee forum which was accepted not be mutually exclusive with trade union recognition. We would also note for completeness that, whilst the Employer addressed the need for a ballot in its submissions to us, this is not a relevant consideration at this stage of the statutory recognition process.

46) We know that members of the Unions accounting for in the region of 42% of the workers in the proposed bargaining unit, voted in favour of recognition in the Unions’ ballot and we have no reason to doubt that this is a true reflection of their views on recognition. We consider, on the basis of our industrial relations experience, that it is likely that sufficient of those members of the Unions who did not express a view on recognition in the Unions’ ballot would support trade union recognition. On this basis, an overall majority of those in the bargaining unit would be likely to support trade union recognition even if no non-union members supported trade union recognition (which in any event in our experience cannot be assumed to be the case). At this stage of the statutory process the test that has to be applied under paragraph 36(1)(b) is not a strict arithmetical check of support for recognition such as would be established through conducting a ballot, but rather a case of the Panel being asked to gauge hypothetical support taking into account the evidence presented as well as its collective employment relations experience for which it was appointed to the CAC. In the absence of any specific evidence to show that workers joined the Unions solely for member benefits, the Panel is of the view that the level of union membership within the proposed bargaining unit can be taken as a legitimate indicator as to the degree of likely support for recognition of the Unions for collective bargaining. Taking into account the level of union membership density in the proposed bargaining unit, combined with the level of support actively expressed by the members of the Unions in the ballot that was conducted, and our industrial relations experience of the likely level of support for recognition, we have concluded that a majority of workers in the proposed bargaining unit would be likely to support recognition.

47) For the reasons given above and after much thought and deliberation, the Panel is satisfied that it is likely that a majority of the workers in the bargaining unit would support recognition of the Unions and the test set out in paragraph 36(1)(b) is therefore met.

12. Decision

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

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Roger Roberts

Mr Steve Gillan

25 September 2020

1. Out of 83 members; a total of 65 voted with 63 voting in favour and 2 voting against. ↩