Decision

Acceptance Decision

Updated 20 May 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1248/2021

4 February 2022

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

The Hawthorns Educational Trust Limited

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC dated 23 December 2021 that they should be recognised for collective bargaining purposes by The Hawthorns Educational Trust Limited (the Employer) for a bargaining unit described as: “Teachers and Early Career Teachers (excluding the Headteacher) employed by The Hawthorns Educational Trust Limited”. The location of the bargaining unit was given as The Hawthorns School, Pendell Court, Bletchingley, Surrey, RH1 4QJ. The application was received by the CAC on 23 December 2021 and the CAC gave both parties notice of receipt of the application that day. On 6 January 2022 the CAC received an application from the Employer requesting an extension of time to lodge a response to the Unions application. In a letter dated the same day the Panel agreed to extend the time for response to Noon on 13 January 2022. The Employer submitted a response to the CAC on 13 January 2021 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 Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Kieran Grimshaw and Mr Paul Moloney. The Case Manager appointed to support the Panel was Joanne Curtis.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 7 January 2022. The acceptance period was extended to 27 January 2022 to allow for a membership and support check to take place and again until 10 February 2022 to allow time for the parties to comment on the results of the membership and support check and for the Panel to consider these comments before arriving at a decision.

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) In their application to the CAC the Unions stated that they had sent a request for recognition to the Employer on 10 November 2021. The Unions said that the Employer had responded on 22 November 2021 stating ‘In accordance with the relevant statutory provisions, we do not accept your initial request but are willing to negotiate… We understand that this triggers a further period of 20 working days (running from the end of the initial 10-day period noted above).’ A copy of the request and the Employer’s response was attached to the Unions’ application. On 25 November 2021 the Unions responded by agreeing to the 20-day extension and putting forward a proposed agreement. On 10 December 2021, the Employer responded by stating ‘we will not be in a position to reach an agreement with you in advance of the 22nd December deadline and again ask that we agree a reasonable extension.’ The Unions went on to say that as the Employer had indicated that it would not engage in any meaningful negotiation regarding recognition in the initial 10 day negotiating period or subsequent 20-day extension following the recognition requested, the Unions would not agree to any further extension and thereafter made an application to the CAC.

6) When asked to provide evidence that the Unions concerned would co-operate with each other and enter into single table bargaining arrangements the Unions stated that officials from each Union had already been in close communication to discuss the application.

7) When asked whether the Unions had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Unions answered ‘No’. The Unions stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties.

8) The Unions stated that the total number of workers employed by the Employer was 140, of whom 55 were in the proposed bargaining unit. The Unions said that 44 workers in the proposed bargaining unit 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 bargaining unit were members of the Unions. The Unions said that they had a petition in support of recognition signed by a majority of all employees within the bargaining unit and also a majority of members within the bargaining unit. The Unions stated that a copy of the evidence could be provided on request to the CAC for verification.

9) The Unions stated that the reason for selecting the proposed bargaining unit was because the majority of members of the Unions employed by the Employer were employed as teachers. The Unions said that teachers employed by the Employer had, as a group, expressed a desire to secure collective bargaining. The Unions said that teachers were a distinct body of employees at the school who were employed under ‘teacher contracts’. They 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 (“TPS”). The Unions stated that the bargaining unit had not been agreed with the Employer. In answer to the question whether there was any existing recognition agreement which it was aware of which covered any workers in the proposed bargaining unit the Unions answered “No”.

10) The Unions confirmed that they held a current certificate of independence. The Unions stated that they had copied their application and supporting documents to the Employer on 23 December 2021.

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

11) In its response to the Unions’ application the Employer stated that it had received the Unions’ request for recognition on 10 November 2021. When asked for its response, the Employer stated it responded by way of a letter on 22 November 2021 (a copy of the letter was attached to the response) advising the School was in principle open to discussions. However it asked for an extension to the timeframe for negotiation and set out reasons.

12) The Employer proposed that it could provisionally schedule to meet at the commencement of the Autumn term 2022 (September 2022) to discuss the Unions request for recognition. The Employer noted that this triggered a further period of 20 working days (running from the end of the initial 10-day period noted above) in which such negotiation and discussion could take place. The School received a further communication from the Unions on 25 November 2021 noting the additional 20-day period for negotiations. The Unions rejected the invitation to postpone discussions and confirmed that if no agreement was reached by 22 December, an application would be submitted to the Central Arbitration Committee following this date. An application was submitted on 23 December 2021.

13) The Employer confirmed that it had received a copy of the application form from the Unions on 23 December 2021. The Employer stated that it had not, before receiving a copy of the application form from the Unions, agreed the bargaining unit with the Unions and that it did not agree the proposed bargaining unit. The Employer said that in the interests of fair and efficient working practices teaching staff who sat on the School’s Senior Management Team should not be included in any bargaining unit. The Employer stated that, following receipt of the Unions’ request on 17 December 2021 it proposed that Acas be requested to assist. Initial contact was made with an Acas Senior Adviser on 21 December 2021 and a TEAMS meeting took place on 22 December 2021.

14) The Employer stated that it did not agree with the number of workers in the bargaining unit as defined in the Unions’ application, setting out its view that the correct number was 57. When asked if there was an existing agreement for recognition in force covering workers in the proposed bargaining unit the Employer answered “No”.

15) In answer to the question whether it disagreed with the Unions’ estimate of membership in the proposed bargaining unit the Employer stated that it did not keep records of union membership and so could not dispute the Unions estimate. When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition the Employer stated that it felt the petition was not conducted anonymously, that employees may have felt pressure to sign and it queried if the petition was fully reflective of current views. As a consequence, the Schools management had undertaken an anonymous survey, attaching the results of the same to demonstrate its view that less than 30% of those in the proposed bargaining unit indicated support for recognition. The Employer did not therefore believe that a majority of those within the proposed bargaining unit would be likely to support trade union recognition.

16) The Employer confirmed it was not aware of a reason as to why the Unions would not co-operate with each other, and that it was not aware of any previous applications under the Schedule by the Unions.

5. The membership and support check

17) 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 18 January 2022 from the Case Manager to both parties.

18) The information from the Unions was received by the CAC on 18 and 21 January 2022 and from the Employer on 19 January 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

19) The list supplied by the Employer indicated that there were 57 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 40 names. One individual appeared on both the NASUWT’s and the NEU’s list but was only counted once for the purposes of the check. According to the Case Manager’s report the number of members of the Unions in the proposed bargaining unit was 39, a membership level of 68.42%.

20) The Unions also provided a copy of a petition bearing the name, date and signature of 55 individuals. The earliest date of signature appearing on the petition was 5 October 2021 and the most recent dated signature was 30 November 2021. The petition consisted of 4 A4 sheets, which were set out as follows:

“We the undersigned wish for our trade union, the National Education Union (NEU) to be recognised for the purposes of collective bargaining at The Hawthorns Educational Trust Limited, Bletchingley on behalf of teaching staff.

We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at The Hawthorns Educational Trust Limited, Bletchingley 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.”

21) The comparison of the Union’s petition, which was signed by members and non-members, with the Employer’s list of workers revealed that it had been signed by a total of 54 workers in the proposed bargaining unit, a figure which represents 94.73% of the proposed bargaining unit, of which 15 signatories, 26.31% of the proposed bargaining unit were not members of the Union.

22) A report of the result of the membership and support check was circulated to the Panel and the parties on 26 January 2022 and the parties were invited to comment on the results by 31 January 2022.

6. Summary of the Parties comments on the membership check

23) In an email to the Case Manager dated 26 January 2022 the Unions said that the report of the check clearly demonstrated that the application met the tests set out in paragraph 36 of the Schedule.

24) In an email to the Case Manager dated 28 January 2022 the Employer attached a letter stating that it was not in a position to dispute the accuracy of the information provided to the CAC by the Unions in respect of the level of membership within the proposed bargaining unit, however it considered there to have been a material change in circumstances following the date of the Unions’ petition. At the time, the School was engaged in a consultation with its teachers over a proposal to withdraw from the TPS. Consultation with staff over this contentious issue concluded on 6 December 2021 with the School’s Governors determining not to proceed with the proposed change in pension provision. The Employer stated that it believed this was the primary rationale for staff signing the Unions’ petition. It went on to say that it did not consider that the majority of workers within the proposed bargaining unit fully understood the implications of a recognition agreement at the time of responding to the Unions’ petition. It made reference to a survey which was sent to staff on 10 January 2022, after the TPS consultation had concluded the previous term. The survey represented a more up to date reflection of the views and preferences of the workers within the bargaining unit in comparison to the Unions’ petition. Taking the above into account, it did not consider that the Unions’ petition accurately reflected the current views and preferences of the majority of the workers constituting the proposed bargaining unit. The staff survey clearly demonstrated that the majority of staff within the proposed bargaining unit supported an internal Staff Committee, as opposed to formal trade union recognition. It asked that the Union’s application to the CAC be rejected as a result.

7. Considerations

25) 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 satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and paragraphs 37 to 42 and that it was made in accordance with paragraph 12(2) of the Schedule in that before the end of the second period of 20 working days, following the Employer’s indication of a willingness to negotiate, no agreement was reached by the parties. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

8. Paragraph 36(1)(a)

26) 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.

27) The membership check conducted by the Case Manager (described in paragraphs 17-20 above) showed that 68.42% of the workers in the proposed bargaining unit were members of the Unions. As stated in paragraph 18 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 has therefore decided that members of the Unions constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

9. Paragraph 36(1)(b)

28) 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. For the reasons given in paragraph 22 above the level of membership of the Unions is 68.42%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition. The Employer argued that the Unions’ petition did not accurately reflect the views of those in the bargaining unit as workers signed it as a response to the proposed withdrawal from the TPS. Given that this proposal was abandoned by the Employer, it argued that support for the Unions may well have changed as a result. However, the Panel has not been furnished with any tangible evidence that would support the Employer’s claim. As outlined in paragraphs 23 and 24 the Unions have also presented a petition in support of recognition signed by a majority of all employees within the aforesaid bargaining unit and also all of the Unions members within the bargaining unit.

29) Based on the evidence before it the Panel is satisfied, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

30) Finally the Panel notes the Employer’s assertion that a ballot is likely to be needed in this case. Whether or not a ballot is to be held is not a matter for consideration at this stage of the statutory process. Should it be relevant at a later stage the Employer will be invited to make submissions that one or more of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

10. Decision

31) For the reasons given in paragraphs 28-33 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Kieran Grimshaw

Mr Paul Moloney

4 February 2022