Decision

Acceptance Decision

Updated 3 July 2024

Applies to England, Scotland and Wales

Case Number: TUR1/1394(2024)

17 April 2024

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:

Prospect

and

The British Academy for the Promotion of Historical Philosophical and Philological Studies

1. Introduction

1)         Prospect (the Union) submitted an application to the CAC dated 8 March 2024 that it should be recognised for collective bargaining purposes by The British Academy for the Promotion of Historical Philosophical and Philological Studies (the Employer) in respect of a bargaining unit comprising “all employees of the British Academy, except Directors and the Head of HR.” The location of the bargaining unit was given as “10-11 Carlton House Terrace, London, SW1Y 5AH.” The application was received by the CAC on 8 March 2024 and the CAC gave both parties notice of receipt of the application by way of a letter dated 11 March 2024. The Employer submitted a response to the CAC dated 21 March 2024 which was amended on 25 March 2024^{[footnote 1]} and copied to the Union.

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 Ms Laura Prince K.C., Panel Chair, and, as Members, Mr Richard Fulham and Mr Nicholas Childs. 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 22 March 2024. The acceptance period was extended to 19 April 2024 in order 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.

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 Union’s application

5)         In its application to the CAC the Union stated that it had sent a request to the Employer on 21 September 2023, and that the Union and Employer had already met several times between March and July 2023, with support from an Acas conciliator. The Union said that it was hoped that agreement would be possible during the negotiation period following the Schedule A1 letter however the Employer wrote on 1 December 2023 to confirm that the Employer’s position as expressed in its letter of 4 October 2023 was final.

6)           When asked whether the Union had made a previous application under the Schedule for statutory recognition for workers in the proposed bargaining unit or a similar unit the Union answered “N/A.”

7)         The Union stated that, following receipt of the request for recognition, the Employer had proposed that Acas should be requested to assist the parties. The Union had agreed and provided the name of the Acas contact on the application form.

8)         The Union stated that the total number of workers employed by the Employer was 159. The Union said that there were 152 workers in the proposed bargaining unit and that the Employer agreed with this number. The Union said that the number of Union members in the proposed bargaining unit was 50 and that the Union would provide a list of members to the CAC on the basis that this list would not be shared with the Employer. When asked to provide evidence that the majority of workers in the bargaining unit were likely to support recognition for collective bargaining the Union said that it could provide an electronic petition of workers expressing support for the Union to be recognised for collective bargaining. The Union said that this would be provided on the basis that the names would not be shared with the Employer. The Union added “to date over 60% of the proposed bargaining unit has signed the petition.”

9)         The Union stated the reason for selecting its proposed bargaining unit was that the Union and Employer agreed that the bargaining unit was compatible with effective management. In answer to the question whether the bargaining unit had been agreed with the Employer, the Union said “Yes”. The Union said that there was no existing recognition agreement of which it was aware which covered any workers in the bargaining unit.

10)       The Union confirmed that it held a current certificate of independence. The Union said it had copied its application and supporting documents to the Employer on 20 September 2023.

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

11)       In its response to the Union’s application the Employer stated that it had received the Union’s written request under Schedule A1 for recognition on 21 September 2023 and had responded by e mail on 4 October 2023 stating that it did not accept the Union’s request but was willing to negotiate with the Union. The Employer explained that in the e mail it had stated that it did not object to recognition of the Union as a matter of principle and reiterated that recognition on the basis of a voluntary agreement remained its preferred approach. The Employer said that to date, it had extensively engaged with the Union, including providing the Union with access to facilities to promote union membership despite being under no obligation to do so. However, it was, and remained the Employer’s position that it would not be appropriate to recognise the Union “without first verifying that that would be in accordance with the democratic wishes of its workforce.” The Employer attached a copy of the e mail to its response. The Employer stated that it had received a copy of the Union’s application form from the Union on 8 March 2024.

12)       In response to the question on whether the Employer had agreed the bargaining unit with the Union before receiving a copy of the application form from the Union the Employer said “yes.” When asked whether it agreed the proposed bargaining unit the Employer said “yes.”

13)       The Employer stated that, following receipt of the Union’s request, it had proposed that Acas should be requested to assist the parties. The Employer said that prior to the Union’s request “under schedule A1” dated 21 September 2023, the Employer had had extensive contact with Acas regarding “potentially recognising the Union.” The Employer said that this contact began in September 2022 and included Acas making a presentation to the Employer’s workers on 12 January 2023 on what the implications might be were the Employer to recognise the Union. It also involved the Employer meeting with representatives of the Union and Acas on a number of occasions in 2023, including 3 March, 17 March, 26 May, 14 June, 27 June and 18 July. The Employer said that its approach reflected that, as stated in its response dated 4 October 2023. The Employer confirmed it did not object to recognition of the Union “as a matter of principle”, and its preferred approach would be to do so “on the basis of a voluntary agreement, subject to first verifying that that reflects the democratic wishes of its workforce.” The Employer went on to say that on 24 May 2023, following engagement with Acas and town hall sessions for workers attended by both the Employer and representatives of the Union, the Employer proposed voluntary recognition of the Union, under which it would be entitled to collectively bargain in respect of pay, hours, holidays and facilities, subject to the Union satisfying the same membership and ballot thresholds as the CAC would apply under a statutory recognition application. As an alternative option, the Employer said that it had offered to recognise the Union for collective bargaining in respect of facilities only, in order to enable the Union to communicate with members of the bargaining unit to build further support and membership. The Employer said “this option would only have required the Union to satisfy the much lower threshold of a majority of staff voting in a ballot to vote in favour of recognition, but the Union indicated that this option was not its preferred approach. The Union originally accepted the first option offered to it, but subsequently sought to re-open the wording of the ballot question. There followed several discussions between the British Academy, the Union and ACAS, with a view to trying to resolve this issue. ACAS offered to host a meeting to assist with this and the British Academy was willing to attend such a meeting, although it was clear that the ballot question would have to reflect the proposed form of recognition and not mislead staff or raise expectations that might not be able to be met. Following discussions about the timing of the meeting, the Union decided that it no longer wanted to pursue voluntary recognition and withdrew.”

14)        The Employer said that after 4 October 2023, it continued to engage with the Union “in a further effort to conclude a voluntary agreement through ACAS”. The Employer said that despite being willing to offer the Union recognition on terms that would be more generous than the statutory method or on the basis of that method if that would be the Union’s preference the Union and the Employer had been unable to agree terms for Acas to conduct a ballot of workers to determine whether “such recognition is their collective wish.”

15)       The Employer stated that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application. The Employer said that the total number of workers within the Union’s proposed bargaining unit was 150.

16)       The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.

17)       In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated, that the Union had not provided any evidence of its membership in the proposed bargaining unit as part of its application to the CAC. The Employer said it could not therefore meaningfully comment on the Union’s estimate. The Employer said that it wished to “put the Union to strict proof” that at least 10% of the workers in the proposed bargaining unit were members of the Union. The Employer requested that a confidential membership check be undertaken by the Case Manager and that it would co-operate with such a check.

18)       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 Union had not provided any evidence in respect of the level of support for recognition among workers in the proposed bargaining unit as part of its application to the CAC. The Employer said it could not therefore meaningfully comment on the matter at this stage. The Employer said that “it puts the Union to strict proof that a majority of the members of the proposed bargaining unit are likely to support recognition” and requested that a check be undertaken by the Case Manager of the Union’s petition to ensure that its signatories were current members of the proposed bargaining unit. The Employer said it would also ask that the Union be requested to confirm the circumstances in which the petition signatures were obtained and the petitions wording.

19)       When the Employer was asked if it was aware of any previous application under Schedule A1 for statutory recognition made by ‘this Trade Union’ in respect of this bargaining unit or a similar bargaining unit, and whether it had received any other applications under Schedule A1 for statutory recognition in respect of any workers in the proposed bargaining unit, the Employer answered, “not applicable.”

20)       When asked whether the Employer consented to its contact details being provided to Acas the Employer said “yes.”

5. The Union’s comments on the Employer’s response

21)       The Union said that it didn’t agree with the narrative from the Employer. The Union said that it had sought a broader agreement because members had expressed a desire to have “a union representing and collectively bargaining on issues such as flexible working policies and pension arrangements.”  The Union said it had shown a clear willingness to compromise. The Union went on to say that there had been a disagreement about the question to put to members on a ballot. The Union said it wanted to put the ballot to members in advance of negotiating the recognition agreement so that it might widen the scope in line with members wishes but the Employer wanted the recognition agreement to be defined in advance of the ballot. The Union said that it did not “withdraw” from negotiations, but that “the ultimatum put to us and a cessation of discussion on the scope of the agreement and the question put to members halted progress.” The Union said it would provide the membership figures to the CAC with the understanding that the names would not be shared with the Employer. The Union said that it had told the Employer in a letter dated 8 March 2024 that “a majority of the staff had now signed the petition for recognition, and we believe this reflects approximately 60% of the proposed bargaining unit.” The Union said that it was willing to provide the names and details of the petition to the CAC for verification, with the understanding that the signatories would not be shared with the Employer.

6. The membership and support check

22)       To assist 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 union (paragraph 36(1)(a)) and whether 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 (paragraph 36(1)(b)), the Panel proposed an independent check of the level of union membership within the proposed bargaining unit, and a petition supplied by the Union. 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 Union would supply to the Case Manager a list of its paid-up members within that unit including their full names, dates of birth and job roles (where available) as well as a copy of its petition. 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 2 April 2024 from the Case Manager to both parties.

23)       The information requested by the CAC was received from the Employer on 4 April 2024 and from the Union on 5 April 2024. The Panel is satisfied that the checks were conducted properly and impartially and in accordance with the agreement reached with the parties.

24)       The list supplied by the Employer indicated that there were 147 workers in the Union’s proposed bargaining unit.

25)       The list of members supplied by the Union contained 49 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 47, a membership level of 31.97%.

26)       The e-petition supplied by the Union contained 106 names, of which 95 were in the proposed bargaining unit, a figure that represented 64.63% of the proposed bargaining unit. Of those 95 names, 40 were members of the Union (27.21% of the proposed bargaining unit) and 55 were non-members (37.41% of the proposed bargaining unit). The petition was set out as follows:

“Petition for Union Recognition at British Academy

This petition is confidential, and names will not be given to your employer.  For verification purposes names will only be visible to the Central Arbitration Committee (CAC), which is the government body adjudicating on trade union recognition, and to an independent third party appointed by the CAC to verify the signatures.  

We the undersigned are employees of the British Academy, and wish Prospect trade union to be recognised for collective bargaining at the British Academy:

First Name(s):

Surname:

Job Title:

Thank you for providing your details and sharing your support.”

27)       A report of the result of the membership and support check was circulated to the Panel and the parties on 8 April 2024 and the parties were invited to comment on the results of that check by noon on 11 April 2024.

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

28)       In an email dated 9 April 2024 the Employer said “our view, having read the report, is that the Panel is likely to determine that Prospect’s application should be accepted. However, as fewer than 50% of the members of the proposed bargaining are members of Prospect, we anticipate that there will need to be a secret ballot of the members of the bargaining unit on whether they would support Prospect as being entitled to conduct collective bargaining on their behalf.”

8. Summary of the Union’s comments following the membership and support check

29)       In an e mail dated 11 April 2024 the Union stated that two of its members had left employment leaving 47 Union members in the bargaining unit. The Union agreed that there were 6 duplicate entries on the electronic petition. The Union said it could not account for all of the 5 names that were on the petition but not the Employer’s list. The Union said that it believed that with a greater concerted effort it could have obtained more signatures on the petition.

9. Considerations

30)       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. 

31)       The Panel is satisfied that the Union 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 paragraphs 37 to 42 of the Schedule. The remaining issues for the Panel to decide are whether the admissibility criteria contained in paragraphs 36(1)(a) and paragraph 36(1)(b) are met.

Paragraph 36(1)(a)

32)       Under paragraph 36(1)(a) of the Schedule an application is not admissible unless the Panel decides that members of the union constitute at least 10% of the workers in the proposed bargaining unit. 

33)       The membership check conducted by the Case Manager (described in paragraphs 22 to 27 above) showed that 31.97% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 23 above, the Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

34)       For the reasons set out in paragraph 33 above the Panel has decided that members of the union 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)

35)       Under paragraph 36(1) 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 union as entitled to conduct collective bargaining on behalf of the bargaining unit.

36)       For the reasons given in paragraph 33 above, the Panel has concluded that the level of union membership within the bargaining unit stands at 31.97%. 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 Union.

37)       The Union carried out a petition of those workers in the proposed bargaining unit. As described in paragraph 26 above, 64.63% of the proposed bargaining unit signed the petition. The Panel has not received any statements from those workers in the proposed bargaining unit who had signed the petition stating that they wished to withdraw their support.

38)       On the basis of the evidence before it, the Panel has decided that Union membership of 31.97% when taken with the percentage of non-members signing the petition (37.41%) shows 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.

10. Decision

39)       For the reasons given in paragraphs 30-38 above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Ms Laura Prince K.C., Panel Chair

Mr Richard Fulham

Mr Nicholas Childs

17 April 2024

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1. In the response document dated 25 March 2024 the Employer corrected a mistake made in its response dated 21 March 2024. The Employer said in question 8, the number of workers in the bargaining unit should be 150 (7 fewer than the total number of workers) – not 151. ↩