Decision

Bargaining Unit Decision

Updated 31 December 2021

Applies to England, Scotland and Wales

Case Number: TUR1/1220(2021)

20 September 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

The Parties:

University & College Union

and

Study Group Limited

1. Introduction

1) The University & College Union (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) for a bargaining unit comprising “All teaching staff below the grade of Head of Subject and all Progression Support Staff at Sussex ISC ”.

2) In its response to the application dated 13 May 2021 the Employer stated that it had not agreed, and did not agree, the proposed bargaining unit. Its reasons were that the proposed bargaining unit was not conducive to effective management of the Sussex ISC and created a fragmented bargaining unit.

3) By a decision dated 11 June 2021 the Panel appointed by the CAC Chair in accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), to deal with the case, consisting of Mr Stuart Robertson, Panel Chair, and Mr Derek Devereux and Mr Paul Morley, Panel Members, accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit.

4) As no agreement was reached, the CAC arranged a Panel hearing to determine the question of the appropriate bargaining unit. In advance of the hearing, which took place remotely via the Zoom platform on 18 August 2021, the parties supplied the Panel with, and exchanged, written submissions relating to the question of the appropriate bargaining unit. The names of those who attended the hearing are appended to this decision.

5) The Panel is required, by paragraph 19(2) of the Schedule to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate.

6) In broad terms, as set out in the Union’s application, the Employer’s response, and the parties’ submissions, the Union contended that the appropriate bargaining unit should comprise all teaching staff below the level of Head of Subject and all Progression Support Staff at Sussex ISC, but as the Panel explains below, it put forward at the hearing an alternative proposal that the bargaining unit should also include all non-teaching staff at the Sussex ISC except for certain senior management posts. The Employer contended that the bargaining unit should comprise only teaching staff below the level of Head of Subject, excluding Progression Support or any other anon-academic staff.

2. Preliminary matters at the hearing

7) At the start of the hearing the Panel allowed the parties time to consider a proposal put forward by the Union to resolve the proceedings, consisting of an alternative bargaining unit of “All teaching staff below the grade of Head of Subject plus all non-academic staff below Assistant Director of Student Experience at the University of Sussex International Study Centre”. This would exclude from the bargaining unit the senior management roles of Centre Director, Director of Curriculum, Assistant Director of Student Experience and Director of Quality and Innovation and the four Heads of Subject, but include all other academic and non-academic staff.

8) The parties did not reach agreement on this proposal. Mr Palmer, counsel for the Employer, informed the Panel that the bargaining unit the Employer considered appropriate remained that set out in its submissions. The Panel Chair advised the parties that allowing the parties the opportunity of considering the alternative bargaining unit put forward by the Union would not affect the CAC’s decision focussing on the Union’s original proposed bargaining unit. The Union did not seek to amend its application to replace its originally-proposed bargaining unit with that proposed during the hearing.

3. Summary of the submissions made by the Union

9) Mr Moran drew the Panel’s attention to paragraph 16 of the Employer’s submissions, which stated that on 16 June 2020 it had agreed to widen the bargaining unit at Sheffield ISC to include all of the employees working there in addition to the academic staff. This, the Union contended, was closely aligned to the bargaining unit proposed at the start of the hearing so the Union found it hard to understand the Employer’s objections. Nonetheless, the Union submitted the most appropriate bargaining unit was that as proposed by it namely “All teaching staff below the grade of Head of Subject and all Progression Support Staff at Sussex ISC” which included all staff who directly contributed to the teaching and academic progression of students which meant teachers and tutors. Whilst accepting that the organisation structure separated teachers and tutors, the Union believed that it was appropriate to include them as they had similar roles, similar terms and conditions, similar training needs and their functions were similar.

10) The Union explained that the proposed bargaining unit included Progression Support Staff as they were student facing and were Personal Tutors who interacted with students on an individual and group level, teaching study skills, were usually responsible for their own groups of students, and frequently interacted and worked alongside academic tutors.

11) The Union stated that although the Progression Support Staff were not directly line managed by academic departments, many of their duties fell directly under the remit of Heads of Subject and the Director of Curriculum (such as student progression to university, academic and engagement concerns, reasonable adjustments and exceptional circumstances). Progression Support Staff would often work very closely with Academic Tutors, Subject Leaders and Heads of Subject on student cases. The Union contended that Progression Support Staff were directly involved in the pedologic process and did a different type of work to that of the Student Support Team.

12) The Union said that Progression Support Staff conducted one to one meetings with students based on their module feedback and ratings in mid/end of semester reports, which included the review of module assignments and academic engagement. Some of the Progression Support Staff had teaching experience in a university setting, and all of them were either working towards, or had completed their Associate Fellowship with the University, which was a pedagogy course. They were involved in the timetabled teaching of students and both teaching staff and progression support staff were directly involved with influencing student outcomes by improving engagement and academic development. Further, the Career Ahead and personal tutor modules, which were compulsory for students, recognised the importance of a holistic and well-rounded approach to learning which took place both in and outside the formal classroom. The Union believed that to include Progression Support Staff in the bargaining unit was therefore in keeping with the aim of union members to achieve better student outcomes together through representation.

13) The Union maintained that changes in working and teaching practices such as moving teaching online had had a similar impact on academic tutors and Progression Support Staff (such as adapting to delivering content online via Canvas, preparing teaching materials to be delivered via Zoom, organising virtual one to one meetings with students, Zoom fatigue, and encouraging good online etiquette from students). The Union believed that as Progression Support Staff performed similar functions in terms of their interactions with students, their demands and issues were likely to be similar.

14) The Union believed that Progression Support Staff had the same annual leave allowance as academic members of staff and the same notice period.

15) The Union stated that they represented and bargained on behalf of academic and academic related staff in Higher Education and that their website stated the following:

In higher education we are the specialist recognised union for academic and academic-related staff (such as managers, senior administrators, computing, library and other professional staff) in pre-92 universities and for academic staff in post-92 institutions.

16) The Union stated that in relation to the Employer’s concern about having three potentially separate bargaining arrangements in place, it would be in no one’s interest to complicate bargaining arrangements and it was the intention to apply simple bargaining arrangements and streamline them as much as possible.

17) The Union stated that it had excluded senior management roles from the proposed bargaining unit based on the power to impose disciplinary sanctions.

18) The Union stated that there were clear and material reasons for its proposal and it did not agree with the Employer that the proposed bargaining unit would draw artificial lines between employees. The Union stated that all staff on the pedagogy side of the Employer’s operation were in the bargaining unit apart from the management team.

19) In conclusion the Union contended that the proposed bargaining unit fulfilled the criteria set out in paragraph 19B of schedule A1 but would accept the alternative bargaining unit put forward at the commencement of the hearing.

4. Summary of the submissions made by the Employer

20) The Employer is part of a global group of companies providing specialist academic and language skills education in English to overseas students (non-English first language speakers) choosing to study at universities in the UK/Ireland, North America and Australia/New Zealand. In the UK, it operates at 18 universities (including the University of Sussex) as well as in specialist colleges which are not affiliated to a university. It further operates boarding schools for international students. In total, there are approximately 1,138 staff employed at its international study centres (ISCs), including 107 staff at the Sussex ISC.

21) The Employer operates ISCs at 18 university campuses in the UK. Only one ISC has trade union recognition: the ISC at the University of Sheffield (Sheffield ISC), where the Employer ‘inherited’ a collective agreement following a business transfer to it from a previous provider. The collective agreement at Sheffield ISC was distinguishable in terms of pay scales and terms and conditions from other ISCs and on 16 June 2020, the Employer agreed to widen the bargaining unit at Sheffield ISC to include all of the employees working there in addition to the academic staff.

22) The Sussex ISC is managed by a Centre Director who has delegated authority to run the campus and who reports to senior Study Group management supported by central functions such as HR and Finance. Three senior managers report to the Centre Director, these being the Director of Curriculum (who is responsible for academic staff, and to whom the four Heads of Subject report)), the Director of Quality and Innovation and the Assistant Director of Student Experience. Of the 107 staff employed there, eight are in the senior management/Head of Subject roles identified above, 83 are academic/teaching staff, five are Progression Support Staff and seven are members of the Student Support Team, including the Quality Officer, Executive Officer, Student Services Team Leader, Student Services and Academic Coordinator, Visa Officer, Academic Administration Team Leader and Scheduling and Data Officer. ^{[footnote 1]}

23) The Employer stated that the employees at Sussex ISC and all of the other ISCs operated by it in the UK (save for Sheffield ISC) were on pay scales and terms and conditions of employment which was set nationally, including benefits, holiday entitlement, pension provision and relevant policies. The Employer said that many employees at Sussex ISC also worked across the ISCs using workforce planning.

24) The Employer stated that Progression Support Staff were responsible for assisting students to improve their independent learning by way of identifying learning techniques and developing study plans. They were not expected to hold teaching qualifications and did not have a teaching pay scale or teaching contracts. Their roles varied; two did not give personal tutorials; one was responsible for the welfare needs of international students; three were Progression Support Coordinators who neither taught academic subjects nor worked from specific academic modules, but were tasked to work with individuals and groups of students to support them with study skills, attendance, engagement and their welfare.

25) The Employer’s primary concern was that the Union’s proposed bargaining unit included a mismatched pairing of academic/teaching and pastoral/welfare support staff within the proposed bargaining unit who were employed on diametrically different terms and conditions of employment. At the same time, the Union had failed to include within its proposed bargaining unit student services and academic coordinators (the Student Services Team) who undertook similar work to Progression Support Staff.

26) The Employer contended that the way Sussex ISC operated, and the interdependence of the roles as well as the different terms and conditions of employment, meant that including the progression support roles in, but excluding student services and academic co-ordinators from, the proposed bargaining unit was not compatible with effective management.

27) The Employer stated that it was important for the Panel to consider the characteristics of those employees who were excluded from the proposed bargaining unit, namely the Student Services Team managed by the Assistant Director of Student Experience. The Employer believed that excluding that group of workers but including Progression Support Staff was incompatible with effective management and did not promote fair and efficient practices and arrangements in the workplace.

28) The Employer argued that the Union had taken no account of the wider Student Services Team and the level of interoperability and collaborative working alongside Progression Support Staff in support of the students. The Employer explained that both teams worked closely together across Sussex ISC to ensure student demand was managed and provision of services operated in a fluid way. As such, the teams worked very closely to ensure all students at Sussex ISC were supported to be successful on their course.

29) The Employer advised that teaching and academic staff were employed on a pay scale set nationally, and therefore enjoyed the same rate of pay relative to their job role; received the same pay award each year; received the same pension entitlement; worked under the same contract of employment; had the same holiday entitlement; had the same maximum hours of work; and were subject to the same employment policies, procedures and performance management processes. Progression Support Staff also worked under the same salaried contracts as each other, received the same pension and holiday entitlement, had the same maximum hours of work, and were subject to the same employment policies, procedures and performance management processes as the Student Services Team. The Employer emphasised that there were marked differences in the basis upon which terms and conditions existed for academic/teaching and Progression Support Staff. In particular, there were different rates of pay (which reflected the difference in role content).

30) The Employer argued that to split teaching/academic staff and Progression Support Staff into a group separate from other employees might result in different pay rates (amongst other terms) being applied to bargained roles as compared to other roles (which were exactly the same or very similar) which were not bargained. This the Employer stated would create unfairness amongst those who performed the same or a similar level role and could result in unequal pay and demotivated teams and conflict, neither of which was compatible with effective management. This risked creating a ‘two-tier’ workforce where employees doing the same or a very similar role and/or who worked closely with each other on a day to day basis received different terms because of their collectively bargained status.

31) The Employer contended that the appropriate bargaining unit should consist of teaching and academic staff below the level of management. Management included Subject Leaders and Heads of Subject ^{[footnote 2]} who were responsible for people management and decision making. In response to this, the Panel asked about Subject Leaders who did not feature in the Employer’s organigram attached to its written submissions. The Employer explained that 14 Subject Leader roles were removed from January 2021 because of the downsizing of the student cohort. The 14 Subject Leaders had not been dismissed but had their management responsibilities removed in order to make cost savings. Seven new Subject Leaders had been recruited from September but were not on the organigram because Subject Leader roles had been suspended when it was prepared. The Subject Leaders had a deputy managerial role, they deputised for the Heads of Subject, attended weekly management meetings within their subjects, recruited within their subjects, supported Heads of Subject with the induction training, chaired assessment boards and provided assessment board reports. They had no responsibility for disciplinary matters.

32) In answer to Panel questions, the Employer said that Subject Leaders still taught but had relief from some of their teaching duties.

33) The Employer put forward an alternative bargaining unit consisting of “academic/teaching staff below the level of management within UCU’s proposed bargaining unit”, which, the Employer contended, would be compatible with effective management without drawing artificial lines between employees performing different roles, who did not share a common set of terms and conditions, despite working together side by side on a daily basis, and interchangeably. The Employer confirmed that none of the relevant employees performed managerial duties that would be subject to collective bargaining arrangements or that would bring them into conflict with each other (for example employee relations matters).

34) The Employer submitted that it was not appropriate to ‘carve up’ the workforce at Sussex ISC in any other way (for example, treating certain employees differently to others) as this would undoubtably lead to undesirable fragmentation, inefficiencies, conflict and unfairness. Further, nothing else would overcome the fact that it would be plainly incompatible with effective management to have people who performed the same or very similar level roles under standard core terms and conditions in different bargaining units (or some within a bargaining unit and some not).

35) The Employer stated that in arriving at an appropriate bargaining unit, a simple distinction should be made between academic/teaching staff and progression support and other support staff.

36) In answer to Panel questions, the Employer confirmed that academic/teaching staff had a nationally agreed pay rate and terms and conditions across all ISCs (except Sheffield) but PST and support staff had locally agreed terms.

5. Discussion and conclusions

37) Paragraph 19(2) of the Schedule requires the Panel to decide whether the Union’s proposed bargaining unit is appropriate. If the Panel decides the bargaining unit is compatible with effective management and therefore appropriate, it is immaterial that the Panel considers there is a more appropriate or effective bargaining unit: Unite the Union and Wheelbase Engineering TUR1/1006/2017. If, however, the Panel decides the proposed bargaining unit is not appropriate, paragraph 19(3) requires the Panel to decide a bargaining unit that is appropriate.

38) Paragraph 19B sets out the matters the Panel must take into account in determining the appropriate bargaining unit. Paragraph 19B(2) provides that the Panel must take into account the need for the unit to be compatible with effective management. By paragraph 19B(2)(b), the five matters listed in paragraph 19B(3) must be taken into account so far as they do not conflict with that overriding need. Those matters are (1) the views of the employer and the union; (2) existing national and local bargaining arrangements; (3) the desirability of avoiding small fragmented bargaining units within an undertaking; (4) the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and (5) the location of workers.

39) Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the Panel must have regard to any view the employer has about any other appropriate bargaining unit. The Panel must also have regard to paragraph 171 of the Schedule which provides that “In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

40) The Panel has arrived at its bargaining unit decision in this case after considering the overall need for the bargaining unit to be compatible with effective management, and within that overall need, the specific factors in paragraph 19B(3) insofar as they are material. The Panel has had full regard to the views of both parties as expressed in their written submissions and amplified at the hearing.

41) The bargaining unit proposed by the Union is “All teaching staff below the grade of Head of Subject and all Progression Support Staff at Sussex ISC”. The issue between the parties is whether the inclusion of Progression Support Staff within the bargaining unit is compatible with effective management and therefore appropriate. The Employer says that it is not, and the bargaining unit should be limited to teaching staff.

42) There is no dispute between the parties that senior management should be excluded from the bargaining unit. For teaching staff, that means Head of Subject and above; there are no senior management within the group comprising Progression Support Staff. During the hearing, the Employer suggested that Subject Leaders should form part of the senior management group excluded from the bargaining unit. The Panel noted, however, that at the date of the hearing, there were no Subject Leaders in post at the Sussex ISC and was not satisfied that even if there had been, they fell within the category of senior management; they reported to Heads of Subject, they carried out delegated functions, and they had no disciplinary or employee relations responsibilities. They do not, therefore, properly fall within the senior management group.

43) One of the paragraph 19B(2) factors is particularly significant for the Panel’s decision. This is the characteristics of employees within the proposed bargaining unit, and of the employees of the Employer forming the Student Support Team.

44) In the Panel’s view the academic/teaching staff within the Sussex ISC have characteristics that distinguish them from other employees. They form a distinct group of professional staff. Their duties specifically involve teaching of the student group. Their terms of employment are determined nationally along with the Employer’s other academic/teaching staff within the ISC (except for the Sheffield ISC).

45) The Professional Support Staff, whilst engaging with students in providing support in learning techniques, study plans and mentoring, do not undertake any teaching. They are regarded by the Employer as forming part of the student support function. Their terms of employment are determined locally in common with other support staff within the Employer’s Student Support Team. In the Panel’s view, it would not be compatible with effective management artificially to separate the Progression Support Staff from the other non-academic staff employed by the Employer and equally artificially link them with the distinctively different group of academic staff. The Panel therefore determines that the Union’s proposed bargaining unit is not appropriate.

46) Having decided that the Union’s proposed bargaining unit not appropriate, the Panel is required by paragraph 19(3) to determine the appropriate bargaining unit. In doing so, the Panel must have, and has had, regard to the views of the Union and the Employer.

47) The Employer contends that the appropriate bargaining unit is “academic/teaching staff below the level of management within UCU’s proposed bargaining unit”. The Union, during the hearing, proposed a bargaining unit of “All teaching staff below the grade of Head of Subject plus all non-academic staff below Assistant Director of Student Experience at the University of Sussex International Study Centre”. This raises the question: should the bargaining unit more appropriately expand to include all support staff at Sussex ISC below management level, or should it contract to consist only of academic/teaching staff? Neither party has suggested there is any other alternative appropriate bargaining unit.

48) The Panel determines that the appropriate bargaining unit is that proposed by the Employer, as slightly amended to read “All academic/teaching staff employed by the Employer Study Group Limited at the Sussex International Study Centre excluding Senior Managers at the level of Head of Subject and above”.

49) The Panel considers that this bargaining unit is compatible with effective management. The Panel notes that the great majority of employees in the Union’s original proposed bargaining unit (83 out of 88) fall within this description. Whilst, having determined that it was not conducive to effective management to divide support staff artificially as proposed by the Union, the Panel can see some attraction in including all support staff in the bargaining unit, defining the unit by reference to academic/teaching staff reflects the Employer’s existing policy of determining pay and conditions for teaching staff separately to support staff. The unit also reflects the existing system of separate line management (below the level of Centre Director) for academic and support staff. The views of the Employer and the Union, as described above, have been fully considered. This does not create a small or fragmented bargaining unit. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule.

6. Decision

50) The Panel determines that the appropriate bargaining unit in this application is “All academic/teaching staff employed by the Employer Study Group Limited at the Sussex International Study Centre excluding Senior Managers at the level of Head of Subject and above”.

51) As the appropriate bargaining unit differs from the proposed bargaining unit, the Panel will proceed under paragraph 20(2) of the Schedule to decide if the application is valid within the terms of paragraphs 43 to 50.

Panel

Mr. Stuart Robertson, Panel Chair

Mr Derek Devereux

Mr. Paul Morley

20 September 2021

7. Appendix

Names of those who attended the hearing:

For the Union

Michael Moran – UCU South East Regional Official

Ian Lund – Teacher, Study Group

Sally Crathern – Teacher, Study Group

For the Employer

Martin Palmer – Counsel for Study Group

Martin Torjussen – Centre Director, Sussex University International Study Centre – Study Group

Ian Goodacre – Senior HR Business Partner – Study Group

Nicola Brown - Solicitor

1. The numbers do not quite add up, possibly because there is more than one Student Services and Academic Coordinator, but this is immaterial for present purposes. ↩

2. Also called Heads of Faculty, but the same role. ↩