Decision

Recognition Decision

Updated 2 October 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1415(2024)

 2 October 2024

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

NEU & NASUWT

and

St Edmund’s School Canterbury, Kent

1. Introduction

1)         NEU & NASUWT (the Unions) submitted an application to the CAC on 19 July 2024 that they should be recognised for collective bargaining by St Edmund’s School Canterbury, Kent (the Employer) for a bargaining unit comprising “Teaching staff (including early career teachers but excluding the headteacher and visiting teachers) employed by St Edmund’s School Canterbury, Kent.” The Union clarified that the bargaining unit was “limited to those employed to work at St Edmund’s School, St Thomas Hill, Canterbury, Kent, CT2 8HU.” The CAC gave both parties notice of receipt of the application on 22 July 2024.  The Employer submitted a response to the CAC dated 26 July 2024 which was copied to the Unions.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Mr Rohan Pirani, Panel Chair, and, as Members, Mr Sean McIlveen and Mr Paul Noon.  The Case Manager appointed to support the Panel was Joanne Curtis.

3)         By a decision dated 20 August 2024 the Panel accepted the Unions’ application. The Employer confirmed in its response document dated 26 July 2024 that it had not agreed the bargaining unit prior to having received a copy of the completed application form but did now agree with the proposed bargaining unit.

2. Issues

4)         Paragraph 22 of Schedule A1 to the Act (the Schedule) provides that, if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the unions, it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies.  Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the unions if any of these qualifying conditions is fulfilled.  The three qualifying conditions are:

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

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf.

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

5)         Paragraph 22(5) provides that “membership evidence” for these purposes is:(a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

3. The Unions’ claim to majority membership and submission that it should be recognised without a ballot

6)         In a letter dated 20 August 2024 the Unions were asked by the CAC whether they claimed majority membership within the bargaining unit and, if so, whether they submitted that they should be granted recognition without a ballot. The Unions, in an email dated 27 August 2024, stated “NEU and NASUWT do have a majority of teachers in membership within the bargaining unit and request we be given recognition without having to undertake a ballot.”

4. Summary of the Employer’s response to the Union’s claim that it should be recognised without a ballot

7)         On 27 August 2024 the CAC copied the Unions email of 27 August 2024 to the Employer and invited the Employer to make submissions in relation to the Unions’ claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

8)         In its response dated 2 September 2024 the Employer said that the CAC should consider holding a secret ballot “of Union members in the bargaining unit pursuant to any one of the qualifying conditions in Para 22 of Schedule A1 TULRCA 1992 for the reasons that follow: 1) The Unions are basing their claim for recognition on a “petition” of members that we understand was conducted in March 2023 during the TPS consultation process. 2) The School has repeatedly asked to see this petition and has not had any response. 3) It is our strong impression that many members of the bargaining unit saw this petition only as part of the Unions’ response to the TPS process (now successfully concluded) and do not understand the nature or likely implications of voluntary or statutory recognition (and may not be in favour of this). As far as we are aware, they have not been provided with any explanation or update on this process since March. Two of the Union members who drove the process have since departed the School. It is our belief that many members of staff will not be aware this process has progressed at all since the TPS consultation was concluded. 4) The Union submitted its request to the CAC at the beginning on the summer holiday (19th July), leaving no opportunity for the School to inform and update staff. (Please note that as an independent school, we broke up for the summer twelve days before this submission was made). 5) We have a meeting scheduled with the NEU local representative on 3rd September to discuss Voluntary Recognition. This was the first date the union representative was willing to meet us. 6) As we previously reported to the CAC, 11 members of staff have left the School and exited the bargaining unit since that petition. To the best of our knowledge all were union members. 7) 11 new members of the academic staff are joining in September who will form part of the bargaining unit and have no awareness of this situation and have not had the chance to express their views at all. It is not known whether they are Union members. 8) Several members of the 2-18 School SLT have also been included in this bargaining unit – all have informed the School that they do not want the Unions to conduct collective bargaining on their behalf (one ASCL member, one NAHT, two non-union members plus four others who are members of NEU or NASUWT). Four other staff members listed in the bargaining unit (non-SLT) including the elected Common Room Rep have also indicated their objections to the Unions conducting collective bargaining on their behalf. Of these four, two are union members (NEU/NASUWT). 9) Our expectation is that the number of objections from Union members in the bargaining unit will increase once staff return and are informed of the advanced stage this process has reached during their absence, during which they have had no opportunity for consultation or to express their views.”

9)         The Employer went on to say “we believe for the reasons expressed above that a significant number of Union members within the bargaining unit at the time of the petition in March no longer form part of the bargaining unit, and those who now form part of the bargaining unit either: 1) Are unaware of the Unions’ application for statutory recognition during the summer holidays and since the conclusion of the consultation in relation to changes to teachers’ pension terms; 2) Do not understand the implications of statutory recognition; 3) May not want to have a Union collectively bargaining on their behalf; 4) Were not part of the bargaining unit at the time of the petition the Unions have relied on in their application; and have not had the opportunity to express their view on the issue of Union recognition for collective bargaining. We should be grateful if the CAC would consider a ballot of Union members in the bargaining unit in September on this basis and/or provide the School with more time to present any evidence that comes to light, including any further credible evidence that Union members do not want the Unions collectively bargaining on their behalf, before it makes its decision in this regard. We also consider that this will be in the interests of good industrial relations and assist with the discussions the School are progressing with the Unions to reach agreement on terms of a voluntary recognition agreement reflective of the views of their members. We would add that the School would fully support and accept the outcome of any ballot carried out by the CAC in a constructive spirit. In the meantime, the School is committed to ensuring the best possible working relationship with its staff and the Unions and is hopeful that a mutually satisfactory and workable voluntary recognition agreement can be quickly agreed with the Unions once term restarts.”

5. Summary of the Unions’ response to the qualifying conditions raised by the Employer.

10)       On 5 September 2024 the Unions responded stating that NEU and NASUWT had 84 members in the bargaining unity (80.77%). Furthermore, “the Joint Petition conducted by NEU and NASUWT contained 64 signatures which represents 62.50%. The NEU and NASUWT Workplace Representatives spoke to members and collected signatures over a period of months after the Teachers’ Pension Scheme dispute. Members have been updated on progress over recognition at joint union meetings on 12th March 14th May 26th June and 3rd September 2024.” The Unions said that the petition was sent to the CAC and contained sensitive trade union data, which would not be shared with the employer. Thay added that “All signatories on the petition were totally aware that they were wanting NEU and NASUWT to be recognised for collective bargaining. The Petition was headed ‘Trade Union Recognition Petition – St Edmunds, Canterbury’, with the following statement which individuals read before signing ‘We the undersigned wish for our trade union the NEU and NASUWT to be recognised for the purposes of collective bargaining at St Edmunds, Canterbury on behalf of teachers. We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at St Edmunds and for this recognition to be for the purposes of collective bargaining on (but not restricted to) pay, hours, holiday and other terms and conditions of employment.’ The employer is correct in their statement to say that the NASUWT Workplace Rep has now left St Edmunds, however, Christina Lea remains an employee of St Edmund’s, but has stepped down from her NEU Workplace Rep position and Christine James has since been elected to take her place.”

11)       The Unions explained that the Employer had held a “Full Board Meeting on 27 June 2024” and that the outcome of this meeting was communicated to the Unions in a letter dated 5 July 2024 which stated that the Employer was broadly supportive of recognition but still had concerns and questions. The Unions went on to say “if the Full Board had given approval for voluntary recognition on the 27th June, NEU would not have submitted the statutory application to the CAC. On the 19th July 2024, NEU responded to the employer stating that we would be willing to meet to discuss the questions in their letter dated 5th July. The letter also informed them that we had submitted our application to the Central Arbitration Committee, which would be withdrawn should we reach a satisfactory conclusion during our next meeting. On the 25th July 2024, Lindsey Murphy (Head’s PA, St Edmunds) offered dates of 27th -30 August. This window to meet was not possible due to other meetings and holiday commitments, so it was agreed to meet on the 3rd September 2024, which was the next available date for both parties. Although a small number of staff did leave St Edmund’s at the end of the academic term, it is impossible for the employer to identify whether they are members of NEU, NASUWT or any other union as this data is never shared with the employer due to GDPR. The NEU Workplace Representatives held a union meeting on the 3rd September 2024 for any new and existing union members to update them on progress over recognition. Any non-union members were also invited to the meeting and encouraged to join one of the relevant unions - one teacher decided to join NEU on the day. The 11 new members of staff were invited to the union meeting and updated on progress with recognition and were fully supportive of NEU and NASUWT providing collective bargaining for them on pay, pensions, hours and holidays and consultation on all terms and conditions of the teaching staff. As can be seen from the petition, a majority of NEU and NASUWT members do wish the unions to provide collective bargaining for them and the NEU Workplace Representatives will ensure further information on the benefits of recognition and the document ‘Trade Union Recognition Mythbusters’ will be shared to reassure them that nothing in the recognition agreement is intended to replace, detract or weaken the direct and positive relationships that exist between individual employees and their employer. There is no evidence to support the claim that the number of objections from union members in the bargaining unit will increase once staff return. There were no objections raised by any members at the union meeting on the 3rd September 2024.”

12)       The Unions concluded by saying that they believed they should be given recognition, without the need for a ballot because of the following reasons:

“• NEU and NASUWT have a majority of members within the bargaining unit. A number of new staff joining the school in September 2024 were already union members of either NEU or NASUWT. Any non-members have been provided with membership information and are expected to join one of the two unions – one teacher has already joined NEU.

• Members from both unions have been kept informed about recognition throughout the process, including the submission of the statutory application by joint union meetings. • A majority of members from the bargaining unit in NEU and NASUWT membership do wish the unions to provide collective bargaining for them on pay, pensions, hours and holidays and consultation on all terms and conditions for teaching staff and duly signed the joint petition to pursue recognition on their behalf.

• Although the employer states that they are “hopeful that a mutually satisfactory and workable voluntary recognition agreement can be quickly agreed with the Unions once term restarts”, they are on the other hand requesting the CAC to organise a ballot as they believe that a significant number of Union members within the bargaining unit at the time of the petition in March no longer form part of the bargaining unit, which is not accurate.

• NEU feel that a ballot is not necessary and would cause further delay and uncertainty amongst employees and would not be in the interests of good industrial relations. Finally, NEU did have a very productive meeting with the Head on the 3rd September and would want to continue this positive relationship once the Panel have made their decision on whether to award recognition to NEU and NASUWT.”

6. Employer’s further comments

13)       On 20 September the Employer was asked to confirm if it had any further evidence to put to the Panel now the school had re opened after the summer break. The Employer said that it was committed to strengthening employer-staff relations within the school and that it had already entered into negotiations with the Unions in good faith regarding a voluntary recognition agreement. The Employer said “we have provided an initial set of edits to their draft VRA and have our next in-person meeting scheduled for 7th October 2024. The previous meeting was very positive and constructive. However, it remains our position that:

(i) Several staff in the bargaining unit do not wish that a voluntary or statutory recognition is implemented at St Edmund’s

(ii) The original vote took place in the midst of a difficult TPS negotiation in March 2024 and some felt obliged to support the recognition proposal without fully debating it.

(iii) The TPS dispute was resolved successfully after this vote.

(iv) Several members of staff who voted in favour have left the school.

(v) Several new teachers have joined this September who have had no opportunity at all to express their view.

(vi) Feedback suggests many staff do not fully understand the consequences of a statutory or voluntary recognition agreement.”

14).       The Employer went on to say that it had requested another ballot so that “all members of the current bargaining unit (rather than a substantially different one from six months previously) have the chance to express their views. And in a vote that is not entangled with another complex and emotionally charged negotiation process - as TPS was.” The Employer said that it did not have any further evidence to provide at this stage and that the only compelling non-anecdotal evidence would be the result of a second vote.

7. Considerations

15)       The Schedule requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Unions.  If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Unions, it must declare the Unions to be recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit unless it decides that any of the three qualifying conditions set out in paragraph 22(4) is fulfilled. If the Panel considers that any of those specific conditions is fulfilled, it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

16)       The membership and support check conducted on 12 August 2024 had shown the Employer listing a total of 104 workers in the bargaining unit. As stated in the decision dated 20 August 2024 the Unions had provided a list of 92 members. The number of union members in the proposed bargaining unit was 84 a membership level of 80.77%. Accordingly, the Panel accepts that the majority of workers in the bargaining unit are members of the Unions.

17)       The Panel has carefully considered the submissions of both parties and all the evidence in reaching its decision as to whether any of the qualifying conditions laid down in paragraph 22(4) of the Schedule is fulfilled.

Paragraph 22(4) (a)

18)       The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. As we have set out above, the Employer submits, for a number of reasons, that a ballot would be in the interests of good industrial relations. Contrary to their submission, the petition, which was strongly in support of recognition, was held in March of 2024, and not 2023. Although it is suggested that a ballot would assist discussions in relation to voluntary recognition, the absence of a ballot presents no impediment, in our view, to any such ongoing discussions. The panel also is cognisant of the very high % of Union membership in the proposed bargaining unit. In addition, 65 of the petition signatories were workers from within the proposed bargaining unit, a support level of 62.50%. As we have set out in our acceptance decision, the short and concise wording on the petition would leave the signatory in no doubt what they were being asked to support. Although concerns have been raised by the Employer about the circumstances of the vote as well as levels of support, these are unevidenced and anecdotal. A ballot would result in further delay and uncertainty. The Panel is therefore not satisfied that a ballot should be held in the interests of good industrial relations.

Paragraph 22(4) (b)

19)       The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the Unions to conduct collective bargaining on their behalf. Although the Employer has expressed concern about levels of support for collective bargaining and statutory recognition no union members have approached the CAC. Therefore this condition does not apply.

Paragraph 22(4) (c)

20)       The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the unions members within the bargaining unit want the Unions to conduct collective bargaining on their behalf. Again, although the Employer has expressed concern in this regard its concerns are anecdotal. No evidence has been produced.  Accordingly, the CAC found no evidence to conclude that there were doubts that a significant number of union members within the bargaining unit would want the Unions to conduct collective bargaining on their behalf.

8. Declaration of recognition

21)       The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Unions. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is met. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Unions are recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Unions are recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising “Teaching staff (including early career teachers but excluding the headteacher and visiting teachers) employed by St Edmund’s School Canterbury, Kent.”

Panel

Mr Rohan Pirani, Panel Chair

Mr Sean McIlveen

Mr Paul Noon

2 October 2024