Decision

Recognition Decision

Updated 25 August 2022

Applies to England, Scotland and Wales

Case Number: TUR1/1237/2021

08 February 2022

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties:

(1) National Education Union

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

and

The Prior’s Field School Trust

1. Introduction

1) The National Education Union (the NEU) and the National Association of School Masters Union of Women Teachers (the NASUWT) (together 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) By a decision dated 10 December 2021 the Panel accepted the Unions’ application. In its response to the Unions’ application the Employer agreed that the Unions’ proposed bargaining unit was an appropriate 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 union(s), 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 union 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(s) 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(s) to conduct collective bargaining on their behalf. 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.

5) In a letter dated 10 December 2021 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 e-mail dated 15 December 2021, claimed to have majority membership, and stated that they should therefore be granted recognition without a ballot.

6) On 20 December 2021 the CAC copied the Unions’ e-mail 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 the three qualifying conditions specified in paragraph 22(4) of the Schedule. The Employer was asked to respond by noon on 29 December 2021, but following a request from the Employer this period was extended to the close of business on 10 January 2022.

3. Summary of the Employer’s submissions on the Unions’ claim and the qualifying conditions

7) In a letter to the CAC dated 10 January 2022 the Employer firstly clarified that it was not in dispute that a majority of members of the bargaining unit were members of the Unions. It stated that it was however uncomfortable with the assumption that majority membership meant that the majority of the bargaining unit also supported the Unions conducting collective bargaining on their behalf. The Employer maintained that teachers joined trade unions for a multitude of reasons; legal advice and guidance, financial advice, discounts, benefits and training.

8) The Employer contended that the first qualifying condition applied and that a ballot should be held in the interests of good industrial relations. The Employer stated that to its knowledge, those in the bargaining unit had not been given any comprehensive information about what automatic recognition meant and/or what collective bargaining was, save that it had written to all relevant employees on 7 January 2022 to make them aware of the process and the conditions which needed to be met in order to trigger a ballot.

9) The Employer explained that given that membership of the Unions had increased significantly in response to its decision to collectively consult with members of the bargaining unit concerning a potential withdrawal from the Teachers’ Pension Scheme, it had material concerns that many members had joined the Unions under the misapprehension that doing so would impact upon or stop that process, which the Employer anticipated would conclude in the next fortnight.

10) The Employer said that it had also been made aware, informally, that the Unions (the NEU specifically) had made statements in meetings with prospective and existing members that they would not be able to provide any legal support to the bargaining unit if they did not support recognition. The Employer said that although it could verify the accuracy of this information as it was not in attendance, if it was said it found it very concerning.

11) In view of the above, it was the Employer’s view that proceeding with automatic recognition of the Unions without a ballot could create industrial relations issues, if the bargaining unit had no detailed knowledge of what recognition meant and/or if employees misunderstood what it would mean for them and their ability to discuss future changes to their terms and conditions with their employer, as they had always done previously.

12) The Employer further explained why it believed that conducting a ballot would help to maintain good industrial relations with its employees. A ballot would allow for discussions with the Union on recognition and collective bargaining with those employees within the bargaining unit to ensure that they were able to make an informed decision on recognition. The Employer believed that transparency and information sharing was good for industrial relations and would avoid any surprises that could have a detrimental impact on these relations.

13) The Employer explained that historically it had always discussed matters that would have a substantial impact upon employees before any changes had been implemented. It was therefore concerned that recognition may be granted to the Unions without anyone having discussed what this meant in any detail with the affected employees. The Employer believed that this could create an industrial relations backlash in due course.

14) The Employer did not believe that should there be reasonable concerns about a ballot having any negative impact on industrial relations in this context given that the Code of Practice: Access and Unfair Practices during Recognition and Derecognition Ballots would apply.

15) The Employer re-iterated that it had written to all employees within the bargaining unit to make them aware of the process. As part of this communication, it had explained to employees that if they did not support the Unions being recognised for collective bargaining purposes, they could contact the Case Manager by email to make this clear. The Employer explained that as it had encouraged employees to contact the Case Manager directly, it had not had sight of any communications of this kind, if any, but wanted to raise this in order that they could be taken into account, to the extent that they existed.

16) The Employer submitted that if a sufficient number of employees within the bargaining unit expressed that they did not agree to recognition for collective bargaining, this satisfied the condition and a ballot was required before recognition proceeded.

17) In concluding, the Employer stated that if there was majority support amongst the bargaining unit for recognition of the Unions, it did not oppose this. It simply believed it should be tested through a ballot, in the interests of maintaining good industrial relations, before the Unions were automatically recognised.

18) On 18 January 2022 the Employer’s letter of 10 January 2022 was copied to the Unions. By letter of the same date the Panel Chair asked that the Employer provide a copy of the correspondence sent to employees on 7 January 2022. A copy of this letter was provided by the Employer on 18 January 2022.

4. E-mails from workers received by the CAC

19) On 10 January 2022 the Case Manager received seven e-mails from workers. Under cover of a letter dated 18 January 2022 the Case Manager copied to the parties and the Panel a redacted version of those e-mails. The parties were informed that the e-mails were being copied to them for information and only if the Panel considered it necessary, would the parties be invited to comment. The e-mails received are set out below:

1) Dear Ms Norgate,

I do not support automatic recognition of the Unions without a ballot and consider that a ballot should be held in the interests of good industrial relations, to ensure informed majority support amongst the bargaining unit and I do not want the Unions to conduct collective bargaining in relation to pay, hours and holiday on my behalf.

##########

2) Dear Ms Norgate,

I am a teacher at Prior’s Field and have been alerted that non-balloted, automatic recognition of the Unions is on the cards.

I believe that the Unions have an overtly political agenda and, as such, I do not support automatic recognition of the Unions. I believe there should be a ballot of teaching staff to ensure that there is a majority of members who support this. I feel that automatic recognition would damage staff relations and that it should go through the correct democratic processes.

Kind regards,

##########

3) Dear Ms Norgate

I am a member of the proposed bargaining unit at Prior’s Field school. The reference number for the case is; TUR1/1237(2021).

I would like to make it clear that I do not support automatic recognition of the Unions without a ballot and consider that a ballot should be held in the interests of good industrial relations, to ensure informed majority support amongst the bargaining unit.

Many thanks

##########

4) Dear Ms Norgate

I am a member of the proposed bargaining unit at Prior’s Field School. (REF: TUR1/1237(2021)

I do not support automatic recognition of the Unions without a ballot and consider that a ballot should be held in the interests of good industrial relations, to ensure informed majority support amongst the bargaining unit.

I do not want the Unions to conduct collective bargaining in relation to pay, hours and holiday on my behalf.

Kind regards

##########

5) I am a member of the proposed bargaining unit at Prior’s Field School Ref: TUR1/1237(2021).

I do not support automatic recognition of the Unions without a ballot and consider that a ballot should be held in the interests of good industrial relations, to ensure informed majority support amongst the bargaining unit and I do not want the Unions to conduct collective bargaining in relation to pay, hours and holiday on my behalf.

Regards

##########

6) I am a member of teaching staff at Prior’s Field school and so am therefore part of the bargaining unit.

I do not want the Unions to conduct collective bargaining in relation to pay, hours and holiday on my behalf

Kind regards

##########

7) Dear Ms Norgate

I am not a member of NEU / NASUWT and do not object to recognition of the unions.

However, I do not want the Unions to conduct collective bargaining in relation to pay, hours and holiday on my behalf.

Kind regards.

##########

20) It was not necessary for the Panel to seek the Unions’ comments on the Employer’s submissions or on the emails from employees.

5. Discussion and conclusions

21) The Act 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 then decide if any of the three conditions in paragraph 22(4) is fulfilled. If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot.

22) The membership check issued by the Case Manager on 19 November 2021, described in paragraphs 25 - 27 of the acceptance decision dated 10 December 2021, showed that 76.56% of the workers in the bargaining unit were members of the Unions. The Panel is satisfied that this check was conducted properly and impartially and is satisfied that a majority of the workers in the bargaining unit are members of the Union.

23) The Panel has considered carefully the Employer’s submissions 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.

24) The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Panel has considered the submissions put forward by both parties and is not satisfied that a ballot should be held in the interests of good industrial relations. The Panel notes the Employer’s submission that proceeding with automatic recognition of the Unions without a ballot could create industrial relations issues. The Panel also notes the content of the seven e-mails from workers received by the Case Manager. However, given the numbers in the bargaining unit and the high level of union membership, which the employer does not dispute, and the small number of letters from employees requesting a ballot or opposition to recognition despite the employer’s very clearly-worded letter inviting them to object to recognition, the Panel does not consider that this condition has been met. In the absence of clear evidence to the contrary, the Panel is entitled to assume that members of the Unions favour recognition and there is nothing to suggest that a ballot should be held in the interests of good industrial relations.

25) 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 union to conduct collective bargaining on their behalf. The Panel finds that there is no evidence that a significant number of union members do not wish the unions to undertake collective bargaining on their behalf. None of the authors to the e-mails have identified themselves as union members. In any event the number of e-mails is not a significant number given the density of union membership within the bargaining unit.

26) 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 union members within the bargaining unit want the Unions to conduct collective bargaining on their behalf. The Employer has made assertions about employees’ reasons for joining the Unions but has not substantiated them with evidence. The Panel is satisfied that this condition does not apply.

6. Declaration of recognition

27) 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 are met. Pursuant to paragraph 22(2) of the Schedule, the CAC must 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 “Teachers and Early Career Teachers (excluding the Headteacher) employed by The Prior’s Field School Trust”.

Panel

Mr Stuart Robertson, Panel Chair

Mr David Coats

Mr Richard Fulham

08 February 2022