Decision

Acceptance Decision

Updated 26 January 2021

Case Number: TUR1/1193/2020

14th October 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:

National Education Union (NEU) &

National Association of School Master /Union of Women teachers (NASUWT)

and

Notre Dame School

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 6 August 2020 that they should be recognised for collective bargaining purposes by Notre Dame School (the Employer) for a bargaining unit described as: “Teachers and NQTs (excluding Visiting Music Teachers and the Warden)”. The location of the bargaining unit was given as Notre Dame Preparatory & Senior School. The application was received by the CAC on 6 August 2020 and the CAC gave both parties notice of receipt of the application that day. The Employer submitted its response to the application dated on 12 August 2020 which the CAC 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 Tariq Sadiq as Panel Chair, and, as Members, Mr Len Aspell and Mr David Coats. The Case Manager appointed to support the Panel was Linda Lehan.

3) The initial acceptance period in this case expired on 20 August 2020. The Panel has extended this period on three occasions, the first to allow more time for the Panel to consider all the evidence and the second to allow time for the parties to comment on the results of a membership check and for the Panel to consider the said comments before arriving at a decision. The final extension of the acceptance period ends on 14 October 2020.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Union’s 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 application was submitted by the Regional Development Officer of the NEU on behalf of both Unions in which the following points were stated.

6) The Unions had a current certificate of independence and neither Union had made a previous application under the Schedule for statutory recognition for workers of the proposed bargaining unit or similar unit.

7) The Unions confirmed that it was a joint application and the NEU stated that NASUWT members in the workplace had signed a joint Union petition in favour of statutory recognition and an official for NASUWT had agreed to file the application jointly. NASUWT and NEU confirmed that they had worked closely and achieved joint recognition status at a number of workplaces across the independent and state education sectors.

8) The Unions confirmed that they had sent a letter on 22 June 2020 to the Employer informing them of their intention to make an application under Part 1 of the Schedule A1 to the Trade Union Labour Relations (Consolidation) Act 1992 (a copy was enclosed with the application). They stated that the Employer responded on 1 July 2020 asking for confirmation that they would enter into talks to agree a voluntary agreement and asking the Unions to confirm the bargaining unit. The Unions stated that they responded by e-mail to the Employer on 8 July 2020 inviting representatives of the School to engage in discussions over formal recognition and confirmed the bargaining unit The Unions stated that the Employer responded by e-mail on 28 July 2020 informing them that it would not consider a voluntary recognition agreement. The Employer had not following receipt of the Unions’ request for recognition propose that Acas be requested to assist the parties.

9) The Unions stated that the total number of workers employed by the Employer was 148. They stated that there were 89 workers in the proposed bargaining unit, of whom 60 were members of the Unions. When 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 stated that the majority of employees in the proposed bargaining unit were NEU or NASUWT members. They stated that they had a petition in support of recognition signed by a majority of the employees within the proposed bargaining unit which could be made available to the CAC on request for verification.

10) The Unions’ stated that the reason for selecting the proposed bargaining unit was because the vast majority of Members of the NEU and NASUWT employed by the employer were employed as teachers and had, as a group, specifically expressed a desire to secure collective bargaining with the NEU. They stated that teachers were a distinct body of employees at the school who were employed on ‘teacher contracts.’ The Unions also stated that the teachers were required to undertake specific duties (planning and delivering lessons and assessing students) and were paid on a separate teacher pay scale/range and are/were exclusively members of the Teachers’ Pension Scheme. The Unions’ confirmed that the proposed bargaining unit had not been agreed with the Employer.

11) The Unions stated that there was no existing recognition agreement which they were aware of, which covered any workers in the proposed bargaining unit. They also stated that the date on which it had copied the application and the supporting documents to the Employer was on 6 August 2020.

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

12) In its response to the Unions’ application, the Employer confirmed that it had received the Unions’ written request under Schedule A1 for recognition on 22 June 2020 which was addressed to the Heads of School entitled “Application under Part 1 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992”. They stated that it was not clear from the contents of the letter if voluntary recognition was being sought by the Unions. The Employer stated that on 1 July 2020 they had requested clarification on that point to which the Unions responded by e-mail of 8 July 2020 confirming that they were requesting voluntary recognition. The Employer stated that the Unions also confirmed that the proposed bargaining unit comprised “all teachers and newly qualified teachers with the exception of visiting music teachers and the headteachers”.

13) The Employer stated that it responded to the Unions’ request by e-mail on 17 July 2020 in which it confirmed that the School would like to review the proposed bargaining unit before considering the request for voluntary recognition. They stated that it did not consider that it was appropriate to consider a bargaining unit that excluded groups of staff who were eligible to be members of the NEU and NASUWT, including Heads, librarians, administrators, ancillary staff, technicians and teaching assistants (a copy of the email was pasted into the Employer’s response form to the CAC).

14) The Employer stated that the Unions had replied on 20 July 2020 confirming their agreement to the alternative bargaining unit, comprising teachers, newly qualified teachers, heads, librarians, administrators, ancillary staff, technicians and teaching assistants. (A copy of the e-mail was pasted into the Employer’s response form to the CAC). ^{[footnote 1]}

15) The Employer stated that it had therefore subsequently considered the Unions’ request for voluntary recognition on the basis of the agreed alternative bargaining unit and a copy of their response to the Unions dated 28 July 2020 was also pasted into the Employer’s response form to the CAC. The email stated that following discussions, the Employer had decided that they preferred to continue to run their school as a community focused on kindness, service and gentleness and where all voices were heard equally, whether they are in union membership or not. The Employer stated that a collective bargaining agreement would possibly reduce the opportunity for all staff to be heard equally, as union reps would be the main conduit for discussion, and not all staff may be comfortable with that process. The Employer was also concerned that any agreement reached through a collective bargaining process would be imposed on all colleagues whether they were in union membership or not, and whether they agreed or not. The Employer said that it therefore declined to enter a voluntary agreement. They stated that they already offered formal and informal opportunities for staff to have their voices heard and would continue to do so, so the Unions could be assured that their members, as well as all other staff members in all areas of the school, would still be able to express their opinions on all matters relating to their work at Notre Dame.

16) The Employer confirmed that it had received a copy of the application form (and supporting documents) from the Union on 6 August 2020 by being copied into the Union’s email to the CAC with the application. They stated that it did not receive the application direct. The Employer confirmed that following receipt of the Unions’ request it did not propose that Acas be requested to assist.

17) The Employer confirmed that the bargaining unit as defined in the unions’ application had not been agreed and that it did not agree. They stated that it considered the Unions’ request for voluntary recognition on the basis of an alternative agreed bargaining unit and that was not however the bargaining unit that the Unions had now put on the application form.

18) The Employer stated that the school was a collegiate and community-focused setting. It did not therefore consider that it was appropriate to exclude some groups of staff who were eligible for membership of the NEU and/or NASUWT, such as Heads, librarians, administrators, ancillary staff, technicians and teaching assistants, from any potential bargaining unit. It had understood that the proposed bargaining unit had been changed by agreement on 20 July 2020 to teachers, librarians, administrators, ancillary staff, technicians and teachers. The Employer stated that the bargaining unit that the Unions had included on their application to the CAC was not the one that had been agreed.

19) In addition to its concerns in relation to collegiality and community, the Employer stated that the School did not have a member of staff with the job title of Warden as stated by the Unions in their application to the CAC. The Employer pasted a copy of its e-mail trail between them and the Union relating to a voluntary agreement between the dates of 17 and 20 July 2020.

20) The Employer briefly indicated its objections to the proposed unit by explaining that the school was based on a collegiate approach, so it believed that all staff should be included. For example, any cost of living increase in pay given was for all staff not just teachers. Also benefits like paid time off for wellbeing activities was for all staff in all areas of the school, as was access to its employee support programme. The Employer did not believe that teaching staff should be able to negotiate benefits that other staff in different roles were not party to.

21) The Employer stated that the number of workers employed was 159 and that the number of workers in the bargaining unit as defined in the Unions’ application was 90. They also confirmed that there was no existing agreement for recognition in force covering the workers in the proposed bargaining unit.

22) When asked if it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer answered that the Unions had not provided it with a list of members so it could not comment on this.

23) When asked if it did not consider that a majority of the workers in the bargaining unit were likely to support recognition, to indicate its reasons for taking this view, with any available evidence, the Employer stated that it did not believe that the majority of workers in either the bargaining unit as defined in the unions’ application or in the alternative bargaining unit that they understood to be have been agreed would support recognition as some of the teaching had been upset by the Unions’ actions in recent weeks relating to consultation on the Teachers’ Pensions Scheme. They stated that members of staff who were not teachers but were in what the Employer believed to be the bargaining unit had also expressed concern about some actions that the Unions had taken. The Employer stated that those opinions had been expressed to them verbally and also in writing by a number of staff and the Employer pasted an example of an email it had received from a member of the teaching staff in June. They said that members of staff who were not members of the Unions had not been consulted or asked their opinions about recognition. The Employer also stated that it understood that members of staff who were members of the Unions may not have been fully informed of what collective bargaining would mean in practice.

24) The Employer stated that the Unions had said in the form which they received from the CAC that they have held a ballot of members. They stated that not all staff in the bargaining unit as defined in the application were consulted and, in addition, not all staff in what they believed to be the agreed bargaining unit were consulted. Further, they were not informed that a ballot was taking place and were not informed of the result. The Employer did not believe the ballot was carried out fairly with anonymous voting provision and due care that no staff members felt under pressure. They said that it understood that the ballot was carried out using either the social media platform WhatsApp or by email in June 2020 which was at a time when staff were involved in consultation about Teachers Pensions and so that may have affected the result of the ballot. The Employer stated that the consultation had now been completed and so believed a new ballot should be carried out if CAC accepted the unions’ application.^{[footnote 2]}

25) When asked if it had received any other applications under Schedule A1 for statutory recognition in respect of any workers in the proposed bargaining unit the Employer referred only to the application subsequently withdrawn by the Employer and the current application as stated in the above paragraph.

26) When asked if it was aware of any previous application under Schedule A1 for statutory recognition made by this Trade Union in respect of the Unions’ proposed bargaining unit or a similar bargaining unit, the Employer stated that it was notified that the CAC had received an application for the same Unions and the same staff dated 4 August 2020, a copy of which it did not receive from the Unions, but that application was withdrawn. The Employer stated that on 6 August 2020 a second application was made to the CAC which they were copied into by the Union.

5. Parties comments on Union’s written request letter

27) On 14 August 2020 by letter to the parties, the CAC acknowledged the Employer’s response to the application and invited the Union to submit any responding comments. The letters also included an invitation from the Panel Chair for both parties to submit their views on whether the Unions’ letter of 22 June 2020, upon which the Unions relied on as a formal request for recognition, was a valid request as required by the terms of the Schedule, as, on the face of it, it did not specifically request that the Employer recognised the Unions in respect of the proposed bargaining unit for the purposes of collective bargaining.

28) The Employer responded to the CAC by e-mail on 19 August 2020 stating that in their view the Union’s letter of 22 June 2020 did not specifically request that the School recognised the Unions in respect of the proposed bargaining unit for the purposes of collective bargaining and it therefore considered that the Unions’ letter was not a valid request for recognition under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. In particular the Employer noted that paragraph 4(1) of the Schedule stated that:

“The union or unions seeking recognition must make a request for recognition to the employer” and in its view the Unions’ letter of 22 June 2020 did not make such a request, therefore the Unions’ letter was not a valid request for recognition.

29) The Unions in an email dated 19 August 2020 attached their comments on the request letter stating that the letter sent to the Employer on 22 June 2020 clearly stated: “Our strong preference has always been, and remains, to conclude an amicable, voluntary, union recognition agreement for the purposes of collective bargaining” which the Unions felt clearly requested the Employer to recognise the Union.

30) The Unions also stated that the wording of the letter of 22 June 2020 had been held by the CAC to constitute a formal request for voluntary recognition in a number of recent cases and for it to be held that the same wording did not constitute a formal request for voluntary recognition in this case would be perverse and inconsistent. Recent cases where the same wording had been deemed valid the Unions said included:

• NEU & NASUWT and Box Hill School Trust Limited- TUR1/1176(2020)

• NEU & NASUWT and Wellesley House School- TUR1/1182/2020

• NEU & NASUWT and St. Bede’s School Trust- TUR1/1183(2020)

• NEU and Shoreham College (Kennedy Independent School Trust)- TUR1/1177(2020)

The Unions stated that for it to be held that the same wording did not constitute a formal request for voluntary recognition in this case would be perverse and inconsistent.

31) The Unions stated that, as the Employer recognised, further clarification was provided by email on 08/07/22 (sic) which stated, “That letter [of 22/06/20] did constitute the request in writing for a voluntary recognition agreement and that remained their preference over having to pursue statutory recognition”. The Unions sated that if it is deemed that the request on 22 June 2020 was not valid, it should be held that it was validated on 08/07/20 as Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 does not specify that a request must be made in a single document.

32) The Unions pointed out that it was clear from the Employer’s response to the application that they considered a request to have been made and that was evident from the emails sent to them on 17 July 2020 in which the Employer stated “We now understand that you are seeking voluntary recognition for the NEU with a bargaining unit comprising teachers (excluding the Heads) and NQTs,” as well as in section 4 of their response document, which clearly stated “We considered the unions’ request for voluntary recognition.” The Unions believed the Employer was being disingenuous in stating that a request was not made and was doing so in order to obstruct and delay a legitimate process of union recognition as requested by employees.

33) Based on the wording of the original letter, later communications further clarifying the request, and the clear understanding of the Employer evident in their own communications, the Unions felt was clear that a request had been made to the standard required in the view of the officious bystander. The Unions stated that the CAC would be exceeding its legal powers by failing to follow the terms laid out in Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Unions stated the NEU would be seeking further advice on how to proceed should the application be rejected.

34) In respect of the Bargaining Unit the Unions stated that the Employer had claimed in their response form that ‘the bargaining unit that the unions have included on this application was not the one that was agreed.’

35) The Unions stated that no bargaining unit had been proposed to the CAC other than that stated in the application. The Unions clarified that voluntary discussions considered alternatives, but that was a voluntary process outside of the CAC application and formal process. The Unions went into further detail about the bargaining unit which will if necessary be considered by the Panel at a later stage of the process.

6. The membership and support check

36) 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 membership of the Unions 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 proposed bargaining unit including their full names and date 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 and petition would not be copied to the other party. These arrangements were confirmed in a letter dated 7 September 2020 from the Case Manager to both parties.

37) The information from the Unions was received by the CAC on 9 & 11 September 2020 and from the Employer on 8 September 2020. A membership check was conducted on the 14 September 2020 and a revised version, which is detailed below, was sent to the parties on 6 October 2020. The Panel is satisfied that the revised check was conducted properly and impartially and in accordance with the agreement reached with the parties.

38) The list supplied by the Employer indicated that there were 89 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions combined contained 64 names. According to the Case Manager’s report the number of members of the Unions in the proposed bargaining unit was 59, a membership level of 66.29%.

39) The Unions’ petitions were digital in that signatories responded by e-mail to the Unions’ statements. The NEU’s statement to which individuals responded to was as follows:

“Trade Union Recognition Petition – Notre Dame School, Cobham

I, the undersigned, wish for the National Education Union (NEU) to be recognised for the purposes of collective bargaining at Notre Dame School, Cobham on behalf of teaching staff.

I wish for recognition to be agreed for all workers and employees in the specified bargaining unit and for this recognition to be for the purposes of collective bargaining on (but, not restricted to) pay, hours, holidays and other terms and conditions of employment.

The names of individual members who sign the petition will not be shared with Notre Dame School, Cobham.’

40) NASUWT’s statement to which individuals responding by e-mail was as follows:

‘Please reply to this email adding - yes or – no to the Subject line.

Context

The Governors will shortly be making a decision to opt out of the Teachers Pension Scheme for teaching staff. They plan to consult next term on what they plan to replace it with. The Consultation Representatives do not feel that the consultation has been meaningful given that most of it was conducted during the pandemic lock-down, and the “independent” financial advisors were not experts in the TPS and were unable to provide a comparison between it and the range of alternative schemes.

If the Teacher Unions had been recognised, it would have been possible to deploy experts from the Unions to negotiate, and a different outcome may have resulted. Even now, all is not lost as the school could change its mind at any point up to formally leaving the scheme on December 31st, which may be particularly relevant as the Government is expected before that date to allow mixed environments where existing members remain within the TPS while new staff would not. (This would not help members who agree to new contracts outside the TPS). Furthermore, it will be open to the school to re-join the TPS in the future.

What is also clear is that other future important decisions made by the school which adversely affect teachers terms and conditions would be better negotiated with the unions than imposed unilaterally, not least an annual pay review.

NASUWT School Representative

In these difficult times it becomes even more important for the Union to have school representatives. If you like to volunteer to be a school representative for the Prep school members please let me know by noon on 12th June. If there are no volunteers, then any Senior School representative will cover both schools.

Next Steps

In the event that our members and NEU members respond positively on the question of Union recognition in sufficient numbers, representing a majority of all teachers, we will write to the school seeking formal recognition. If that is withheld, the next step would be to seek external arbitration on the matter. If a majority of teachers support it at that stage, the arbitration service has the right to compel the school to recognise Trades Unions.

I look forward to hearing from you.”

41) The Unions’ digital petitions contained 49 names of which 41 were in the proposed bargaining unit, a figure which represented 46.07% of the proposed bargaining unit and all of which were from members of the Unions.

42) A report of the revised result of the membership and support check was circulated to the Panel for consideration and to the parties for comment on 14 September 2020.

7. Summary of the Employer’s comments on the revised membership and support check

43) By e-mail to the CAC on 7 October 2020 the Employer submitted that it accepted that the Unions had over 10% Union membership in the proposed bargaining unit, however it did not accept that the majority of workers in the Unions’ proposed bargaining unit were likely to be in favour of recognition of the Unions for the purposes of collective bargaining on the following grounds:

• The CAC data showed that under 50% of the workers (46.07%) of the proposed bargaining unit were listed on the Unions petitions and emails.

• The Unions’ emails and petition were carried out during the last academic year (at the end of the summer term) and there had been staff turnover since then with some leaving and some joining. New staff had not been consulted and some of those who had given an opinion last term may have now left.

• The Unions had only asked their members to email or sign the petition 66.29% of staff in the proposed bargaining unit were Union members which meant that 33.71% of the proposed bargaining unit had not been consulted.

• The Unions had not allowed a secret ballot and so the Employer believed that it was possible that undue pressure was exerted to persuade staff to sign. The Employer believed that a new secret ballot carried out by post with an external, independent scrutineer would be fairer and would allow staff to give their opinion without any pressure. ^{[footnote 3]}

• The Unions’ petition was misleading as the wording of it linked recognition to the issue of the school’s consultation about pensions which was a matter that had since closed and was therefore not relevant to the recognition process. The Employer believed that staff had not been clearly told what recognition would mean in practice. In addition, the wording from the NASUWT was categorically incorrect in stating that the financial service company who the school offered meetings with for staff were ‘not experts in the TPS’. There was also clear linkage between union recognition and TPS in the NEU communication.

• Some staff had been upset by the actions of the Unions referring to an example in their previous correspondence (see paragraph 22 above).

8. Summary of the Unions’ comments on the membership and support check

44) The Unions in an email dated 21 September 2020, which they were happy to stand for the revised membership check, contended that the figures included in the membership check clearly indicated that Union members formed a majority of the bargaining unit and that there was a majority in favour of recognition.

45) The Unions stated that it should be noted that the NEU did not receive any correspondence from members indicating that they were against recognition of the Unions at the school. This was one of the first instances in which the Unions had not been able to circulate a paper petition in a workplace and had instead had to rely on electronic systems. Furthermore, it had recently come to light by the Unions that not all of its members had received electronic correspondence therefore support for recognition within its memberships at the school may well have been higher than the numbers submitted and asked that in light of the disruption caused by social distancing, that this was considered by the Panel.

46) Further emails from both parties were received concerning a further petition being carried out by one of the Unions but as this bears no relevance to the Panel’s decision are not detailed.

9. Considerations

47) 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. The Panel is required by paragraph 15 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the Act’) to decide whether the Union’s application to the CAC is valid within the terms of paragraphs 4 to 8; is made in accordance with paragraphs 11 or 12; and is admissible within the terms of paragraphs 33 to 42 of Schedule A1 to the Act, and therefore is to be accepted.

48) The issue is whether or not the Unions letter dated 22 June 2020 contains a request for recognition made under Schedule A1.

49) The Union’s letter dated 22 June 2020 to the employer stated inter alia:

“We are writing to you on behalf of the National Education Union (NEU) and the National Association of Schoolmasters/Union of Women teachers (NASUWT), to inform you that the aforementioned trade unions will be making a formal application under Part 1 of Schedule A1 of the Trade Union and Labour Relations [Consolidation] Act 1992, for the purposes of collective bargaining in respect of Teachers and Newly Qualified Teachers employed by Notre Dame School, Cobham on the 22nd June 2020.” …..

Our strong preference has always been, and remains, to conclude an amicable, voluntary, union recognition agreement for the purposes of collective bargaining. This would enable those together, to shape the terms that best suit the school.”

50) In the Employer’s response to the Union’s application the employer stated that it was not clear from the contents of the Union’s letter dated 22 June 2020 if voluntary recognition was being sought by the Unions. The Employer said that they requested clarification on this point on 1 July 2020 and the Unions confirmed by email on 8 July 2020 that they were requesting voluntary recognition.

51) On 14 August 2020 parties were invited to provide their views on whether the Union’s letter dated 22 June 2020 amounted to a valid request as, on the face of it, it did not specifically request that the employer recognizes the unions in respect of the proposed bargaining unit for the purposes of collective bargaining. The Employer responded on 19 August 2020 stating that the Union’s letter of 22 June 2020 did not make a request for recognition to the employer under paragraph 4(1) of Schedule A1. In the Union’s response dated 19 August 2020 the Unions refuted the suggestion that their letter dated 22 June 2020 did not amount to a formal request for recognition. The Unions submitted that:

(i) The paragraph in the letter stating “Our strong preference has always been, and remains, to conclude an amicable, voluntary, union recognition agreement for the purposes of collective bargaining” amounted to a clear request that the employer recognize the union;

(ii) The wording contained in the letter had been held by the CAC to constitute a formal request for voluntary recognition in a number of recent cases in 2020 including three cases involving the NEU and NASUWT and one case involving the NEU, and for the CAC not to hold that the same work wording did not constitute a formal request for voluntary recognition this case would be perverse and inconsistent;

(iii) In any event, further clarification of the Unions case was provided to the employer by email dated 8 July 2020 which stated, “That letter did constitute the request in writing for a voluntary recognition agreement and this remains our preference over having to pursue statutory recognition.” The Unions submitted even if the request on 22 June 2020 was not valid, a valid request was made on 8 July 2020 and the Act does not specify that a request must be made in a single document, and

(iv) It was clear from the employer’s response in their email dated 17 July 2020 that a request for recognition had been made since the employer stated, “We now understand that you are seeking voluntary recognition for the NEU with a bargaining unit comprising teachers (excluding the Heads) and NQTs”. The Unions also rely upon section 4 of the employer’s response which states “We considered the union’s request for voluntary recognition.”

52) In deciding whether to accept the application the Panel must decide whether the validity and admissibility requirements contained in Schedule A1 above have been satisfied. The only issue that has been raised is whether the validity requirements have been met.

53) Under paragraph 4(1) of Schedule A1, the union or union seeking recognition must make a request for recognition to the employer and under paragraph 4(2) paragraphs 5 to 9 apply to the request. Under paragraph 8, the request is not valid unless it (a) is in writing (b) identifies the union or unions in the bargaining unit, and (c) states that it is made under this Schedule.

54) The Panel has also considered the following CAC decisions namely TGWU and William Becket Plastics Ltd (TUR1/86/01), ISTC and Mission Foods (TULR1/256/03) and Unite the Union and United Health Group (TUR1/948/2015). Whilst the Panel acknowledge that previous CAC decisions don’t set a precedent, they are important in terms of ensuring consistency of approach and we would need to make clear in any decision why we did not follow the approach taken in these cases. The numbers in square brackets refer to the paragraph numbers in the decisions.

55) In TGWU and William Becket Plastics Ltd, the CAC held that the request does not have to be made in any particular form and that although the union’s letter could have been more clearly worded it did contain a request for recognition under the Schedule – see [11]. The CAC took into account the fact that in the employer’s reply it understood the union to be invoking the legislation; the union’s letter stated that it was written ‘formally to request’ recognition; the union’s letter expressly referred to Schedule A1 of the Act and expressly referred to the steps which were open to it under paragraph 11 of the Schedule and mentioned the relevant time limit for the employer’s response.

56) In ISTC and Mission Foods, the employer unsuccessfully impugned the validity of a union request that it “begin formal talks on trade union recognition” under Schedule A1. The employer argued unsuccessfully that the letter was a request to enter into talks about recognition rather than an outright request for recognition. The CAC was not persuaded by that argument – see [17]. It found that although the union’s request may not have been couched in the best possible terms, nonetheless it was clear as to the unions aim namely seeking recognition and it wasn’t invalidated simply because the union asked the ask the company to engage in dialogue in order to achieve the same. The CAC took into account that the union’s letter was headed “Re; Trade Union Recognition”; it was in writing; they specified the proposed bargaining unit and stated that its request was in accordance with Schedule A1.

57) In Unite the Union and United Health Group, the union sent a letter which asked for recognition to be agreed voluntarily and said “we can apply under… Schedule 1 TULRCA 1992” and stated “we believe it is in everyone’s interest to try and achieve the agreement through voluntary process hence this letter to you requesting a meeting with the company to discuss this issue in more detail.” – see [9]. The CAC held that although the letter could have been more explicit it was satisfied that the union’s intention was to make a statutory request. It took into account the fact that the letter referred to the Schedule and requested the employer to respond within 10 working days [27].

58) Here, the Union’s letter dated 22 June 2020 stated inter alia:

“We are writing to you on behalf of the National Education Union (NEU) and the National Association of Schoolmasters/Union of Women teachers (NASUWT), to inform you that the aforementioned trade unions will be making a formal application under Part 1 of Schedule A1 of the Trade Union and Labour Relations [Consolidation] Act 1992, for the purposes of collective bargaining in respect of Teachers and Newly Qualified Teachers employed by Notre Dame School, Cobham on the 22nd June 2020.” …..

Our strong preference has always been, and remains, to conclude an amicable, voluntary, union recognition agreement for the purposes of collective bargaining. This would enable those together, to shape the terms that best suit the school.”

59) Whilst the Union’s letter could have been expressed more clearly, the Panel’s view based on the evidence and the CAC authorities referred to above is that the letter did contain a valid request for recognition under Schedule A1 for the following reasons. First, it referred to the Union’s intention to make a formal application for trade union recognition. This is similar to the Unite the Union and United Health Group case above in which the CAC held that the union had made a valid request. Second, it expressly referred to Schedule A1 of the Act. Third, it specified the proposed bargaining unit namely Teachers and Newly Qualified Teachers employed by the Notre Dame School in Cobham. Fourth, it asked for the Employer to respond within the statutory time limits. Fifth, on 30 June 2020 the employer acknowledged receipt of the Union’s letter dated 22 June 2020 confirming the Union’s application under Part 1 of Schedule 1A Trade Union and Labour Relations (Consolidation) Act 1992 for trade union recognition. Although the Employer went on to state that it was unclear from that letter whether the Unions were making a request for voluntary recognition, the employer confirmed that the Union’s letter did contain a request for trade union recognition under Schedule 1A of the Act.

60) For the reasons set out above the Panel’s view is that the letter did contain a valid request for recognition made under Schedule A1. The Panel is also satisfied that the application was made in accordance with paragraph 12 of the Schedule. Furthermore, 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 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.

10. Paragraph 36(1)(a)

61) 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.

62) The revised membership check conducted by the Case Manager (described in paragraphs 36-38 above) showed that 66.29% of the workers were members of the Unions. As stated in paragraph 37 above the Panel is satisfied that this check was conducted properly and impartially and in accordance with the arrangements agreed with the parties. The Panel notes that the Employer in their email of 16 September 2020 confirmed that they accepted that the Union had over 10% membership in the proposed bargaining unit. 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.

11. Paragraph 36(1)(b)

63) 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.

64) The Case Manager’s check of the Unions’ digital petitions against the list of 89 workers provided by the Employer indicated that 41 of the 49 petitions were identifiable as workers within the proposed bargaining unit, a support level of 46.07%.

65) The Panel notes the Employers comments that the Unions’ petitions were carried out during the last academic year (at the end of the summer term) and there had been staff turnover since then, with some staff leaving and some joining, and that new staff had not been consulted and some of those who had given an opinion last term may have now left. The Panel also notes the Employers concern that the Unions’ had only asked their members to email or sign the petitions which meant that 33.71% of the proposed bargaining unit had not been consulted. The Unions stated in their comments that the NEU did not receive any correspondence from members indicating that they were against recognition and this was one of the first instances in which the Unions had not been able to circulate a paper petition in a workplace and had instead had to rely on electronic systems. Furthermore, it had recently come to light by the Unions that not all of its members had received electronic correspondence therefore support for recognition within its memberships at the school may well have been higher than the numbers submitted. From previous petitions submitted by Unions the Panel are aware that some non-members will sign a petition although for whatever reason they do not wish to be a Union member and in this instance the Union were unable to circulate a petition due to the current climate. The Panel also took note of the Employer’s concern relating to the wording of the petitions being misleading as they felt the staff had not been clearly told what recognition would mean in practice but even though the Employer has access to their workers no evidence to substantiate this was produced.

66) On the basis of the evidence before it, the Panel has decided that on the balance of probabilities a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

12. Decision

67) For the reasons given in paragraphs 48-66 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Tariq Sadiq - Panel Chair

Mr Len Aspell

Mr David Coats

14th October 2020

1. The Unions’ wording in the email was “Would you, as a collegiate and community-focused setting, be prepared to agree a voluntary agreement that included a wider range of groups of staff who are eligible for membership of your union (librarians, administrators, ancillary staff, technicians and teaching assistants)? If so, I would be more than happy to provide a draft agreement for you to review. ↩

2. It should be noted that although the Employer refers to a ballot the Unions’ application did refer to evidence of a signed petition not of a ballot. ↩

3. Whether a ballot should be held is considered by the Panel at a later stage of the statutory process in the event an application is admissible and not found invalid. ↩