Decision

Acceptance Decision

Updated 25 August 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1237(2021)

10 December 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECISION ON WHETHER TO ACCEPT THE APPLICATION

National Education Union (NEU) &

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

and

The Prior’s Field School Trust

1. Introduction

1) The NEU and NASUWT (the Unions) submitted an application to the Central Arbitration Committee (the CAC) dated 27 October 2021 that they should be recognised for collective bargaining purposes by The Prior’s Field School Trust (the Employer) in respect of a bargaining unit comprising “Teachers and Early Career Teachers (excluding the Headteacher) employed by The Prior’s Field School Trust.” The location of the bargaining unit was given as “Prior’s Field School, Priorsfield Road, Godalming, Surrey GU7 2RH United Kingdom.” The application was received by the CAC on 27 October 2021 and the CAC gave both parties notice of receipt of the application by a letter on 28 October 2021. The Employer submitted a response to the CAC dated 4 November 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 Chairman established a Panel to deal with the case. The Panel consisted of Mr Stuart Robertson, Panel Chair, and, as Members, Mr David Coats and Mr Richard Fulham. The Case Manager appointed to support the Panel was Kate Norgate.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 10 November 2021. The acceptance period was extended on two further occasions to allow time for a membership check to take place, for the parties to comment on the subsequent report, and for the Panel to consider the comments before arriving at a decision. The final extension ends the acceptance period on 10 December 2021.

2. Issues

4) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Unions’ application to the CAC is valid within the terms of paragraphs 5 to 9; is made in accordance with paragraphs 11 or 12; is admissible within the terms of paragraphs 33 to 42; and therefore, should be accepted.

3. Summary of the Unions’ application

5) In its application to the CAC the Unions explained that Officials from each union had already been in close communication to discuss the application. Members and representatives from both unions had held joint meetings over the course of September and October 2021, which were attended by officials from both unions. The Unions had previously submitted a number of joint applications, which were accepted by the CAC: TUR1/1176(2020), TUR1/1182(2020), TUR1/1183(2020), TUR1/1189(2020), and TUR1/1193(2020).

6) The Unions stated that they had sent their request letter to the Employer on 8 October 2021. The Employer responded by letter dated 15 October 2021 in which it had rejected the Unions’ request. In this letter the Employer had stated that “The Governors are not in agreement to entering into a voluntary union recognition agreement with the NEU and/or NASUWT.” The Employer had further stated that “we see no reason to enter into a voluntary union recognition agreement with the NEU and/or the NASUWT and do not intend to do so.” A copy of the Unions’ request and the Employer’s response to that request was attached to its 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 their request for recognition the Employer had not 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 138, and there were 69 workers in the proposed bargaining unit, of whom 47 were members of the Unions. The Unions offered to supply to the CAC a list of its paid-up members, on a confidential basis.

9) When asked to provide evidence that the majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Unions maintained that the majority of the workers in the proposed bargaining unit were members of the NEU or NASUWT. The Unions offered to supply to the CAC, on a confidential basis, a copy of their petition in support of recognition that was signed by both a majority of the workers and its members within the proposed bargaining unit.

10) When asked for its reasons for selecting their proposed bargaining unit, the Unions stated that the majority of their members employed by the Employer were employed as teachers, who, as a group, had specifically expressed a desire to secure collective bargaining with the Unions. They were a distinct body of employees at the school who were employed on ‘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. In answer to the question whether the bargaining unit had been agreed with the Employer, the Unions said “No”. The Unions said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

11) The Unions confirmed that they held certificates of independence. Finally, the Unions stated that they had copied their application and supporting documents to the Employer on 27 October 2021.

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

12) In its response to the Unions’ application the Employer stated that it had received the Unions’ written request on 8 October 2021. The Employer stated that it responded to the Unions’ request by letter dated 15 October 2021, in which it had confirmed that it was not in agreement with entering into a voluntary union recognition agreement. A copy of the Employer’s letter to the Unions was attached to the Employer’s response.

13) The Employer stated that it had received a copy of the Unions’ application form from the Unions on 27 October 2021. The Employer stated that it had not, before receiving a copy of the application form, agreed the bargaining unit with the Unions, but it did now agree with the proposed bargaining unit. The Employer stated that, following receipt of the Unions’ request, it had not proposed that Acas be requested to assist.

14) The Employer said that it did not agree with the number of workers in the proposed bargaining unit as set out in the Unions’ application. The Employer believed that there were 65 workers (46 full time and 19 part time) within the bargaining unit, and not 69 as stated by the Unions. The Employer did not know why the Unions had stated a different number. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

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 had no knowledge of the specific number and the Unions had not provided any evidence to demonstrate the level of their membership. It was the Employer’s understanding that the Unions had sought to recruit members from within the proposed bargaining unit over recent weeks and it was therefore unclear as to the number of workers who were full union members.

16) When invited to give its reasons if it did not consider that a majority of the workers in the bargaining unit would be likely to support recognition, the Employer said that the Unions had not provided any evidence to demonstrate that the majority of the workers in the bargaining unit supported, or were likely to support recognition. The Employer explained that it was aware that the Unions had been actively seeking to recruit new members over recent weeks, in response to the Governors’ announced proposal to leave the Teachers’ Pension Scheme. There was therefore concern that any support for recognition may be due to a misunderstanding amongst members that recognition would give the Unions the statutory right to be consulted on in relation to the proposal to change the pension arrangements. The Employer therefore sought the opportunity to explain statutory recognition to the bargaining unit before any potential implementation, so that all parties could be sure that there genuinely was majority support.

17) The Employer also considered it relevant that, historically, there were extremely positive interactions with the bargaining unit and at no time prior to the proposal relating to the Teachers’ Pension Scheme had there been any request for Union recognition. The Employer stated that it had always managed to work directly with its staff constructively concerning employment related matters.

18) With reference to the Unions’ reliance on a petition, the Employer explained that while it had not seen any documents or been provided with any information relating to it, it did have knowledge of a ballot that was recently conducted by the NEU to gauge interest in strike action. The Employer contended that if the same sort of process was adopted for the petition that the Unions sought to rely on, it had grave and significant concerns about the validity and credibility of any such petition result based on the following: -

• The ballot was hosted on a public site accessible by anyone, either through a search or having been provided with the link. It was not hosted on the NEU website.

• No login was required and there was no check and balance in place to prevent the same people voting multiple times.

• There was no check and balance in place to ensure that those voting in the ballot were eligible to do so (i.e. only employees from Prior’s Field who were NEU members). One of its Governors had been through the voting process to see what would happen and the website registered his vote despite him not being an NEU member and despite him not having actually voted either way. It was unclear how this was recorded by the NEU.

19) The Employer said that while it had no documentary evidence, it had been reported by members of the Senior Leadership Team (who were part of the bargaining unit) that other members of teaching staff had expressed concerns to them that the more vocal members of the Unions were not representing the views of the majority and that they had found the NEU’s rush to petition on industrial action, before any meaningful consultation had taken place, to be offensive.

20) The Employer alleged that a member of the bargaining unit, who had attended NEU meetings, had reported to the Employer that the following statements were made by the NEU representative:

• The Unions could not help them unless they supported formal recognition;

• The Unions had tried unsuccessfully to discuss the proposal with the Employer (they had not);

• That the Employer, the Governors, were liars and did not have the staffs’ best interests at heart;

• That staff should strike immediately.

21) The Employer said that the NEU had also failed to invite the Senior Leadership Team to a subsequent meeting until after it had started, which prevented their attendance. The Employer considered that this suggested that it was not acting in the interests of the entire bargaining unit.

22) The Employer further maintained that other individuals had also stated that many members of the bargaining unit did not want more involvement from the Unions as they were put off by the aggressive stance that had been adopted so far. More concerningly, there were comments that some members of the bargaining unit had been scared into joining the Unions given the sort of rhetoric used at recent meetings, by the NEU in particular.

23) It was the Employer’s view that, given its concerns, it would like verifiable evidence that there was majority support for recognition and it asked that the CAC arrange for an independent ballot. The Employer considered that this would ensure that the Unions were not formally recognised unless it was what the bargaining unit wanted and, given the points as set out above, it was unclear as to whether the majority supported, or would support formal recognition at this stage.

24) The Employer stated “N/A” when asked, if it was aware of any previous application under the Schedule by the Unions in respect of this or a similar bargaining unit, and, whether it received any other applications in respect of workers in the proposed bargaining unit.

5. The membership and support check

25) To assist in the determination of two of the admissibility criteria specified in the Schedule, namely, whether 10% of the workers in the proposed bargaining unit are members of the Unions (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit and of a petition compiled by the Unions. It was agreed with the parties that the Employer would supply to the Case Manager a list of the names, dates of birth and job titles of workers within the proposed bargaining unit, and that the Unions would supply to the Case Manager a list of their paid up members within that unit (including their dates of birth) and a copy of a petition signed by workers in favour of recognition. It was explicitly agreed with both parties that, to preserve confidentiality, the respective lists would not be copied to the other party and that agreement was confirmed in a letter dated 12 November 2021 from the Case Manager to both parties.

26) The information requested from the Employer was received on 16 November 2021 and from the Unions on 17 November 2021. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

27) The list supplied by the Employer indicated that there were 64 workers in the Unions’ proposed bargaining unit. The list of members supplied by the Unions contained 52 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 49, a membership level of 76.56%.

28) The petition supplied by the Unions contained 49 names and signatures, of which 49 were in the proposed bargaining unit, a figure that represents 76.56% of the proposed bargaining unit. Of those 49 signatories, 43 were members of the Unions (67.18% of the proposed bargaining unit) and 6 were non-members (9.38% of the proposed bargaining unit). The petition consisted of 4 A4 sheets, which were set out as follows:

“We the undersigned wish for our trades unions, the National Education Union (NEU) and National Association of School Masters Union of Women Teachers (NASUWT), to be recognised for the purposes of collective bargaining at The Prior’s Field School Trust Limited, Godalming on behalf of teaching staff.

We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at the Prior’s Field School Trust Limited, Godalming 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.”

29) Each signatory to the petition was asked to provide their name, signature, and date. The dates on the petition ranged between 28 September 2021 and 12 October 2021.

30) A report of the result of the membership and support check was circulated to the Panel and the parties on 19 November 2021 and the parties were invited to comment on the results of that check by close of business on 24 November 2021.

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

31) In an e-mail to the CAC, dated 20 April 2021, the Unions stated that the figures contained within the membership report clearly met the tests set out in paragraph 36 of the Schedule.

32) No comments were received from the Employer.

7. Considerations

33) 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.

34) The Panel is satisfied that the Unions made a valid request to the Employer within the terms of paragraphs 5 to 9 of the Schedule and that its application was made in accordance with paragraph 11. Furthermore, the Panel is satisfied that the application is not rendered inadmissible by any of the provisions in paragraphs 33 to 35 and 37 to 42 of the Schedule. The 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.

Paragraph 36(1)(a)

35) 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. The membership check conducted by the Case Manager (described in paragraphs 25 - 27 above) showed that 76.56% of the workers in the proposed bargaining unit were members of the Unions. As stated in paragraph 26 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties. The Panel has therefore decided that members of the unions constitute at least 10% of the workers in the proposed bargaining unit as required by paragraph 36(1)(a) of the Schedule.

Paragraph 36(1)(b)

36) 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 35 above the Panel has concluded that the level of union membership within the bargaining unit stands at 76.56%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of the workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Unions. No such evidence to the contrary was received in this case. The Panel also notes that the support check conducted by the Case Manager showed that 76.56% of workers in the proposed bargaining unit (49 out of 64 workers) had signed a petition in favour of recognition (see paragraph 28 above). Of those who had signed the petition 43 were Union members (67.18% of the proposed bargaining unit) and 6 were non-members (9.38% of the proposed bargaining unit).On the basis of the evidence before it the Panel has decided, on the balance of probabilities, that a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

8. Decision

37) For the reasons given in paragraphs 34 - 36 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr David Coats

Mr Richard Fulham

10 December 2021