Decision

Acceptance Decision

Updated 30 January 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1269(2022)

17 June 2022

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:

University and College Union (UCU)

and

University of Brighton

1. Introduction

1) UCU (the Union) submitted an application to the CAC dated 18 May 2022 that it should be recognised for collective bargaining purposes by the University of Brighton (the Employer) in respect of a bargaining unit comprising “Professors employed by the University on a professorial contract.” The location of the bargaining unit was given as “All Brighton University campuses.” The application was received by the CAC on 18 May 2022 and the CAC gave both parties notice of receipt of the application on 19 May 2022. The Employer submitted a response to the CAC dated 25 May 2022 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 Chairman established a Panel to deal with the case. The Panel consisted of Professor Gillian Morris, Panel Chair, and, as Members, Mr Nicholas Childs and Mr Roger Roberts. 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 1 June 2022. The acceptance period was extended to 20 June 2022 in order to allow time for a membership and support check to take place, for the parties to comment on the subsequent report, 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. Summary of the Union’s application

5) In its application to the CAC the Union stated that it had sent its request for recognition to the Employer on 4 February 2022. The Union stated that it received a formal response to its request on 12 April 2022. The Union said that prior to this it had held informal discussions concerning recognition with regard to its proposed bargaining unit, but that no agreement could be reached. A copy of the Union’s request and the Employer’s email of 12 April 2022 were attached to the Union’s application.

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 “No”. The Union stated that, following receipt of the request for recognition, the Employer had not proposed that Acas should be requested to assist the parties.

7) The Union stated that the total number of workers employed by the Employer was 2600. The Union stated that there were 42 workers in the proposed bargaining unit, of whom 25 were members of the Union. When asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining the Union said that it had a petition which showed that 27 members of the bargaining unit were in favour of recognition.

8) The Union stated that the reason for selecting its proposed bargaining unit was because it was the only group of mainstream academic staff in the institution for which the Union was not recognised. The Union said that the bargaining unit had not been agreed with the Employer. The Union said that there was no existing recognition agreement of which it was aware that covered any workers in the bargaining unit.

9) The Union confirmed that it held a current certificate of independence. The Union stated that it had copied its application and supporting documents to the Employer on 18 May 2022.

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

10) In its response to the Union’s application the Employer stated that it had received the Union’s written request for recognition on 8 September 2021. The Employer said that it had responded by e-mail dated 17 September 2021 and that it had met with the Union on 7 October 2021 to discuss the request. The Employer said that it had attached a copy of its email of 17 September 2022 to its response. This email was not attached. The Employer subsequently provided a copy of the email of 17 September 2021 to the CAC on 31 May 2022 following a request by the Case Manager.

11) The Employer said that it had received a copy of the application form and supporting documents from the Union on 18 May 2022. 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 said that it acknowledged that the proposed bargaining unit had been defined as “professors employed by the University on a professorial contract” but said that it had not been able to agree the scope of any agreement. The Employer stated that it would not seek to voluntarily move to recognition on the broad basis proposed by the Union, and that its expectation would be that the exact areas to be covered by any recognition agreement would be agreed and outlined, which it had been unable to do to date.

12) When asked whether following receipt of the Union’s request it had proposed that Acas should be requested to assist, the Employer answered “No”.

13) The Employer said that it disagreed with the number of workers in the bargaining unit as set out in the Union’s application. The Employer said that it believed that the number was 45 and that the Union had indicated slightly fewer.

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

15) The Employer said that it disagreed with the Union’s estimate of membership in the proposed bargaining unit as its staff list showed a slightly higher number. The Employer said that it was unclear where the Union had obtained its information. ^{[footnote 1]}

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 it had engaged with the Professoriate to both share and seek their views on the range of matters that would be included in any recognition agreement. The Employer explained that for a number of years there had been a consultative group for its Professoriate, and that it had recently established a revised University Professorial Forum to provide an opportunity to increase its engagement with the Professoriate.   The Employer said that membership of the University Professorial Forum, which would be extended to all professors, was an effective forum for it to engage with the Professoriate on an ongoing basis.  The Employer said that, whilst some of the Professoriate had expressed a desire for the Employer to agree to the recognition request, it had had representations from others in the Professoriate that led the Employer to the position that it would not seek to voluntarily move to recognition on the broad basis proposed by the Union. The Employer said that the Union negotiated nationally for staff up to grade 9 (Pay spine point 50 – current salary £61,818), and its agreements covered those groups. The Employer said that the proposed bargaining unit would include professors who were engaged on salary points 51-64 (up to a salary of £93,420) many of whom would identify as being in academic leadership roles.

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

5. The membership and support check

18) 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 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 of the Union’s petition. 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 dates of birth) and a copy of its petition. 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 31 May 2022 from the Case Manager to both parties.

19) The information requested from the Union was received by the CAC on 31 May 2022 and from the Employer on 7 June 2022. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.

20) The list supplied by the Employer indicated that there were 46 workers in the Union’s proposed bargaining unit. The list of members supplied by the Union contained 25 names. According to the Case Manager’s report, the number of Union members in the proposed bargaining unit was 25, a membership level of 54.35%.

21) The Union also provided the results of an online petition. This took the form of a spreadsheet with columns headed: “Name”, Job Title”, “School”, “Completion Time”, and “E-mail Address”. There were 24 entries on the spreadsheet, 22 of which had a timestamp beneath the heading “Completion Time”, which ranged between 3 March 2022 and 24 March 2022. In its covering email to the Case Manager the Union explained that two individuals were unable to access the electronic petition and therefore had given their assent, by e-mail to the Union, for their names to be added to the spreadsheet. No timestamp was provided on the spreadsheet in the case of these two individuals. The Union provided copies to the Case Manager of the e-mails from those two individuals to the Union giving their assent.

22) The Union explained that the petition was open from 3 March 2022 and closed on the 25 March 2022. The link to the petition was sent within an email to Union members, and the email was set out as follows:

Dear Professor

In order to proceed with our attempt to secure union recognition and collective bargaining rights for the Professoriate at the University, we need to demonstrate majority support for the proposal from among the group of staff to whom recognition would apply. This group is defined as all those employed by the University on a professorial (rather than a management) contract.

To achieve this we are asking you to express your support for union recognition using this online petition. The results of the petition will be seen by Brighton UCU Coordinating Committee and sent to the Central Arbitration Committee for verification, but not passed on to the employer or anyone else within the University.

Please use the link below to access the petition and complete it before Friday 18th March.

################################

Thanks and best wishes

23) The check of the Union’s petition showed that it had been signed by 24 workers in the proposed bargaining unit, a figure which represents 52.17% of the proposed bargaining unit. Of the 24 signatories, 23 were members of the Union (50% of the bargaining unit) and 1 was a non-member (2.17% of the bargaining unit).

24) A report of the result of the checks was circulated to the Panel and the parties on 8 June 2022 and the parties were invited to comment on the results of that check by noon on 13 June 2022.

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

25) In an email to the CAC dated 9 June 2022 the Employer stated that it believed that there could be a difference between those who signed the public petition and those who would vote in a private ballot. The Employer said that it also believed that a formal recognition agreement which would have a narrow focus would be of less value than the current arrangements with the Professoriate, which had a much wider remit. The Employer said that this had not been made clear to the Professoriate by the Union in moving away from their discussions locally.

26) The Employer said that it considered the most important issue for this group to be workload and that it had offered to consider an agreement on that basis but the Union had not responded, and had instead moved to the formal process. The Employer said that this group currently had a dedicated forum whereby issues could be raised with the University leadership.

27) No comments were received from the Union.

7. Considerations

28) 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.

29) 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 37 to 42 of the Schedule. The remaining issue for the Panel to decide is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.

Paragraph 36(1)(a)

30) 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.

31) The membership check conducted by the Case Manager (described in paragraphs 18 – 20 above) showed that 54.34% of the workers in the proposed bargaining unit were members of the Union. As stated in paragraph 19 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 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)

32) 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.

33) For the reasons given in paragraph 31 above the Panel has concluded that the level of union membership within the bargaining unit stands at 54.34%. The Panel considers that, in the absence of evidence to the contrary, union membership provides a legitimate indicator of the views of workers in the proposed bargaining unit as to whether they would be likely to favour recognition of the Union. 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 52.17% of workers in the proposed bargaining unit (24 out of 46 workers) had signed a petition in favour of recognition (see paragraph 23 above). The Case Manager’s letter to the Union dated 31 May 2022 confirming the arrangements for the check (see paragraph 18 above) stated that the Union’s covering email to its e-petition should “explain how the petition was conducted and whether any validation of the signatures took place”. In this case the Union did not state whether any validation of the signatures had taken place. Given the level of union membership within the proposed bargaining unit the Panel has not found it necessary to consider the implications of the apparent absence of any validation of signatures to the Union’s e-petition and has placed no reliance on that petition in reaching its conclusion that the test in paragraph 36(1)(b) has been met.

34) 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 Union as entitled to conduct collective bargaining on behalf of the bargaining unit, as required by paragraph 36(1)(b) of the Schedule.

8. Decision

35) For the reasons given in paragraphs 29 - 34 above the Panel’s decision is that the application is accepted by the CAC.

Panel

Professor Gillian Morris, Panel Chair

Mr Nick Childs

Mr Roger Roberts

17 June 2022

1. It seems possible that the Employer was addressing the number of workers in the proposed bargaining unit rather than the Union’s estimate of membership in answering this question. ↩