Decision

Acceptance Decision

Updated 31 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1220/2021

11 June 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION ACCEPTANCE DECISION

The Parties:

University & College Union

and

Study Group Limited

1. Introduction

1) The University & College Union (UCU) (the Union) submitted an application to the Central Arbitration Committee (the CAC) dated 7 May 2021 that it should be recognised for collective bargaining by Study Group Limited (the Employer) ^{[footnote 1]} for a bargaining unit comprising “All teaching staff below the grade of Head of Subject and all Progression Support Staff at Study Group Limited” ^{[footnote 2]}. The application was received by the CAC on 7 May 2021. The CAC gave both parties notice of receipt of the application on 11 May 2021. The Employer submitted a response to the CAC dated 13 May 2021 which was copied to the Union.

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. Stuart Robertson, Panel Chair, and, as Members, Mr Derek Devereux and Mr. Paul Morley. The Case Manager appointed to support the Panel was Linda Lehan.

3) The CAC Panel has extended the acceptance period in this case. The initial period expired on 21 May 2021. The acceptance period was extended to 11 June 2021 to allow time for the parties to comment on the results of the membership check and for the Panel to consider those 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. The Union’s application

5) The Union stated that its initial request for recognition, an extract of which was set out in the body of their application, was sent to the Employer on 28 March 2021. The Union stated that this was followed by a response from the Employer on 15 April 2021, an extract of which was also set out in the body of their application. The response stated that the Employer had considered the Union’s request but could see no material change since the previous request on 15 December 2020 to which it had replied on 4 February 2021 and there was no change to that answer (which was the decline the Union’s request for recognition).

6) The Union stated that it had not made a previous application under the Schedule for workers in the proposed bargaining unit or a similar unit. The Union stated that, following receipt of the request for recognition, the Employer had not indicated a willingness to involve ACAS.

7) The Union stated that the total number of workers employed by the Employer was 117 and that there were 82 workers in the proposed bargaining unit, of whom 22 were members of the Union. The Union stated that the Employer had declined to meaningfully engage so there was no agreement on the number of workers in the proposed bargaining unit.

8) When asked for evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Union stated that a petition signed by 47 members of the proposed bargaining unit in late December 2020 and early January 2021 was sent to the Employer on 7 January 2021. The Union offered to provide the names of the signatories to the CAC, but on the basis they should not be shared with the Employer. The Union described the petition as being alphabetised by name and role “within Sussex ISC teaching staff” of the signatories.

9) The Union stated that the reason for selecting the proposed bargaining unit was because it represented academic and academic-related staff.

10) The Union stated that the bargaining unit had not been agreed with the Employer, and it was not aware of any existing recognition agreement which covered any workers in the bargaining unit.

11) The CAC established from the Certification Officer’s website that the Union holds a current certificate of independence.

12) The Union stated that it had copied the application, and supporting documents, to the Employer on 7 May 2021.

4. The Employer’s response to the Union’s application

13) In its response to the Union’s application the Employer stated that its legal name was Study Group Limited not ‘Sussex International Study Centre’ ^{[footnote 3]}. The Employer said that the proposed bargaining unit referred to employees who worked at one of Study Group Limited’s UK sites located on the University of Sussex Campus. Sussex International Study Centre was the name often given to the site, but the International Study Centre was neither the Employer, nor was it a legal entity.

14) The Employer stated that it had received a written request from the Union on 15 December 2020 requesting recognition for a proposed bargaining unit of ‘the teaching staff’ which it replied to on 11 January 2021. The Employer explained that a meeting took place on 27 January 2021 and the request for recognition was not agreed. The Employer stated that a second written request with a larger proposed bargaining unit of ‘all teaching staff below the grade of Head Subject and all Progression Support Staff’ was received on 28 March 2021 and a reply was sent stating that it could not see any material change since the previous request on 15 December 2020.

15) The Employer confirmed that a copy of the application form dated 7 May 2021 without supporting documentation was received on Monday 10 May.

16) The Employer stated that it had not, before receiving a copy of the application form from the Union, agreed the bargaining unit with the Union and that it did not agree the proposed bargaining unit. The Employer’s reason for its objection was the final proposed unit was not conducive to the effective management of the Centre and created a fragmented bargaining unit.

17) The Employer stated that it did not propose that Acas be requested to assist, but, at the Union’s instigation it was contacted by Acas and spoke with an Acas Adviser, on a confidential and without prejudice basis, on 26 April 2021.

18) The Employer stated that it currently employed about 1,138 workers. It stated that it did not agree the number of workers in the proposed bargaining unit as set out in the Union’s application. It contended that there were potentially 92 workers in the bargaining unit, in that the whole of the progression support team had not been included and some teachers had been omitted.

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

20) The Employer stated that it disagreed with the Union’s estimate of membership in the proposed bargaining unit, although it was unaware of the numbers as the Union had been reluctant to disclose information. 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 advised that only one petition was sent on 7 January 2021 to the Centre Director with a full list of names. The Employer stated that the petition canvassed only the initial, smaller, bargaining unit made up of teaching staff (see paragraph 8 above. In addition the Employer said that two signatories had left its employment and one signatory was ineligible to be in the bargaining unit.

5. The Membership Check

21) 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. 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 name and date of birth) and a copy of the petition signed by workers in favour of recognition. It was agreed 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 17 May 2021 from the Case Manager to the parties. The information from the Union was received by the CAC on 17 and 18 May 2021 and from the Employer on 17 May. The Panel is satisfied that the check was conducted properly and impartially and in accordance with the agreement reached with the parties.

22) The list supplied by the Employer indicated that there were 89 workers in the proposed bargaining unit. The list of members supplied by the Union contained 21 names and one did not appear on the Employer’s list. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 20, a membership level of 22.47%.

23) The Union provided a copy of the petition with the names of the 47 signatories who had signed the petition listed below. The Union confirmed to the Case Manager that the petition was carried out using a google platform and the list of names was generated from that. The Union sent to the Case Manager the link to the google platform with access rights so that the names could be verified but the Case Manager was unable to access the document.

24) The petition was in the following terms:

“Petition for Union Recognition at Sussex University International Study Centre

We, the undersigned employees of Study Group at Sussex ISC, call on Study Group management to recognise the UCU as a party to collective bargaining, with associated provision of facilities, time and materials, with local and national management. That such negotiation should be in relation to all appropriate matters including, but not limited to, current furlough arrangements, better working conditions, pay, pensions, leave, progression, redundancy, grievance, appraisal, hours and holiday provision.

Given the challenges of present and doubtless future conditions, we believe that it is to the benefit of management no less than of the employees to work together on staffing and quality educational delivery.

Our aim is to foster the best possible relations between employer and staff, keep at the centre the best possible student experience and achievement and bring the ISC into line with the other on-campus work places, departments and partners of Sussex University.”

25) Out of the 47 names supplied by the Union as signatories to the petition, 45 were in the proposed bargaining unit, a figure that represents 50.56% of the proposed bargaining unit. Of those 45 names, 17 were members of the Union (19.10% of the proposed bargaining unit) and 28 were non-members (31.46% of the proposed bargaining unit).

26) A report of the result of the membership check was circulated to the Panel and the parties on 25 May 2021 and the parties were invited to comment on the result.

6. The parties’ comments on the result of the membership check

27) The Employer stated in a letter dated 27 May 2021 that the petition sent to it on 7 January 2021 was the only one received by it. The Employer stated that the proposed bargaining unit and the associated petition received at that time was informally discussed at a meeting held on 27 January 2021 and throughout the first stages of the discussions with UCU the bargaining unit was ‘the teaching staff.’

28) The Employer advised that at the meeting on 27 January 2021 the Union and Staff Representatives refused to explain how and when the petition was carried out, with the result that the Employer did not know how it was conducted but assumed that it was done via email.

29) The Employer stated that the second written request for recognition received from the Union, including the larger proposed bargaining unit of ‘all teaching staff below the grade of Head of Subject and all Progression Support staff’’ was received on 28 March 2021. The Employer advised that it had not received a second petition associated with the revised proposed bargaining unit. The Employer contended that it was unclear how many petitions existed and who was actually petitioned that would then constitute the 50.56% of workers who had signed the petition. The Employer said it could only assume that the Union had not produced a petition that demonstrated a result that could be considered as showing that a majority of the workers in the proposed bargaining unit favoured recognition.

30) No comment on the result of the membership check was received from the Union.

7. Discussion and conclusions

31) 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.

32) 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 paragraph 36(1)(a) and paragraph 36(1)(b) are met.

8. Paragraph 36(1)(a)

33) 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.

34) The membership check conducted by the Case Manager (described in paragraphs 21 to 22 above) showed that 22.47% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 21 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 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.

9. Paragraph 36(1)(b)

35) 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 Union as entitled to conduct collective bargaining on behalf of the bargaining unit.

36) The Panel notes that the support check conducted by the Case Manager showed that 50.56% of the workers in the proposed bargaining unit (45 out of 89 workers) had signed a petition in favour of recognition of the Union. Of those 45 who had signed the petition 17 were Union members (19.10% of the proposed bargaining unit) and 28 were non-members (31.46% of the proposed bargaining unit).

37) The Panel notes the Employer’s concern that the Union did not provide a second petition in support of the revised and expanded proposed bargaining unit. However, the Case Manager’s check and comparison of the names signatories to the petition against the employees in the revised proposed bargaining unit shows marginally over 50% support for recognition within the revised bargaining unit. The Panel is satisfied that this comparison provides reliable evidence of support as shown by the petition within the revised bargaining unit.

38) The Panel notes that the Union provided the Case Manager with the link to the google platform on which the petition was hosted with access rights for verification of the names but the Case Manager was unable to access the document. The system of membership and support checks employed to determine whether the admissibility tests in paragraph 36 are satisfied relies on the good faith and honesty of both parties in supplying information. The Panel has no evidence which leads it to suspect that either party has not acted honestly and in good faith in relation to this application.

39) On the evidence before it, the Panel concludes 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

40) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.

Panel

Mr Stuart Robertson, Panel Chair

Mr Derek Devereux

Mr Paul Morley

11 June 2021

1. The Union in its application had named the Employer as Sussex International Study Centre. The Employer in their response form clarified that the Employer’s name was Study Group Limited and this has been amended accordingly. ↩

2. The Union in its application identified the proposed bargaining unit as “All teaching staff below the grade of Head of Subject and Progression Support Staff at Sussex ISC” but as clarified by the Employer in its response, “Sussex ISC” is neither the Employer nor is it a legal entity and the name has been amended to that of the correct legal entity, Study Group Limited. ↩

3. This was amended; see notes 1 and 2 above. ↩