Decision

Form of Ballot Decision

Updated 16 February 2021

Case Number: TUR1/1189(2020)

30 November 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DECISION ON FORM OF BALLOT

The Parties:

NEU & NASUWT

and

Bishop’s Stortford College

1. Introduction

1) NEU & NASUWT (the Unions) submitted an application to the CAC on 4 August 2020 that they should be recognised for collective bargaining by Bishop’s Stortford College (the Employer or the College) for a bargaining unit comprising “All teachers directly employed by Bishop’s Stortford College, including the Deputy Heads in the Prep and Senior School, excluding teachers on zero hours contracts, Teaching assistants, peripatetic Music teachers, and Heads”. The location of the bargaining unit was given as Bishop’s Stortford College, 10 Maze Green Road, Bishop’s Stortford CM23 2PJ. The CAC gave both parties notice of receipt of the application on 4 August 2020. The Employer submitted a response to the CAC dated 10 August 2020 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 Chair established a Panel to deal with the case. The Panel consisted of Mr Charles Wynn-Evans, Panel Chair, and, as Members, Mr Roger Roberts and Mr Steve Gillan. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 25 September 2020 the Panel accepted the Unions’ application. Although the parties had not reached agreement as to the appropriate bargaining unit prior to the application being lodged with the CAC, the Employer, in its response to the application, stated that it now agreed the composition of the bargaining unit and so the Panel moved immediately to the question as to whether or not a secret ballot should be held.

4) In a decision promulgated on 9 November 2020 the Panel, satisfied that the majority of workers in the agreed bargaining unit were members of the Unions, decided that the qualifying condition in paragraph 22(4)(a) of Schedule A1 to the Act (the Schedule) was satisfied and that in the interests of good industrial relations, a ballot should take place.

5) The Panel accordingly gave notice to the parties, pursuant to paragraph 22(3) of the Schedule, that it intended to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit would be asked whether they wanted the Unions to conduct collective bargaining on their behalf. and the parties were asked for their views on the form the ballot should take. The Panel also advised the parties that it would wait until the end of the notification period of ten working days, as specified in paragraph 24(5) and 24(6), before arranging a secret ballot.

6) The notification period under paragraph 24(5) and 24(6) of the Schedule ended on 20 November 2020. The CAC was not notified by the Unions or by both parties jointly that they did not want the ballot to be held, as per paragraph 24(2).

2. Unions’ submissions on the form of ballot

7) In a letter dated 13 November 2020 the Unions expressed their preference for a workplace ballot explaining that teaching had returned to normal and teachers were in school. The Unions believed that it was the most efficient way for the ballot to be conducted and would maximise participation. Should there be any teachers in the bargaining unit who were absent from school and unable to vote in school, then the Unions would request that provision was made for a postal vote. The Unions’ workplace representatives had written to the Employer to detail suggestions for access to the bargaining unit, a copy of which was attached. The Unions wished to draw the CAC’s attention to the fact that the last day of term was 18 December 2020 and, given that the application was made on 4 August 2020, the Unions hoped that matters could be expedited so that there was sufficient time to conduct and conclude the ballot before the Christmas holiday.

3. Employer’s submissions on the form of ballot

8) In a letter dated 16 November 2020 the Employer expressed its preference for a postal vote. It explained that it believed it could agree the access arrangements with the Unions without support and would endeavour to do this as quickly as possible and provide a copy of the arrangements once confirmed. Given the risks of Covid-19 and complexity of connected safety measures, the Employer believed that the most appropriate form of ballot was postal. This would provide process resilience against any College lockdowns, individual voter isolation due to Covid-19 and also reduce risk of on-site balloting compromising school safe bubble systems, social distancing and sanitising protocols. The College would be closing for the Christmas break on the 18 December 2020 so the postal vote would also allow for incursion into the holiday period should it be needed, although the Employer would support a completion of the ballot before that date.

4. Further submissions of the form of ballot

9) On 17 November 2020, the Panel Chair, having had sight of the parties’ views on the form of ballot, directed that the Unions be invited to comment on the points raised by the Employer concerning social distancing, safe bubble systems and sanitising protocols.

10) The Unions, in a letter dated 20 November 2020, reiterated that their preference was for a workplace ballot explaining that teaching had returned to normal and teachers were in school. They believed that it was the most efficient way for the ballot to be conducted and would maximise participation. Should there be any teachers in the bargaining unit who were absent from school and unable to vote in school, then the Unions would request that provision was made for a postal vote. However, notwithstanding this, the Unions acknowledged the genuine concerns expressed by the Employer. It was a question of judgement. If the Panel decided that it would be better to hold a postal ballot then the Unions would fully accept its decision.

5. Considerations

11) When determining the form of the ballot (workplace, postal or a combination of the two methods), the CAC must take into account the following considerations specified in paragraphs 25(5) and (6) of the Schedule:

(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace;

(b) costs and practicality;

(c) such other matters as the CAC considers appropriate.

12) The parties have put forward two different types of ballot for the Panel to consider. The Unions have argued for a combination ballot, that is a workplace ballot with a postal element for those workers known in advance to be absent from the workplace on the day of the ballot whereas the Employer has submitted that the ballot should be a postal ballot.

13) The Panel, having carefully considered the parties’ submissions, has decided that, on the grounds of practicality, cost but also predominantly because of the uncertainty caused by the Covid-19 pandemic, the appropriate form of ballot in the circumstances would be a postal ballot. At the time of this decision the UK is in a national lockdown. The Panel is unable, therefore, to forecast what restrictions will be in place at the time of the ballot should we decide that it be held in the workplace. Then there are the possible restrictions on travel which may prevent the Qualified Independent Person appointed to conduct the ballot on behalf of the CAC from travelling to the school in order to conduct the workplace ballot. Circumstances outside the Panel’s control could result in the ballot having to be postponed which would incur unnecessary costs as well as delaying matters. It seems sensible to the Panel that we sidestep the possibility of any interruption to the ballot process by having the ballot conducted by post. In the current climate we feel that this is the most appropriate and safest form of ballot.

6. Decision

14) The decision of the Panel is that the ballot be a postal ballot.

15) The name of the Qualified Independent Person appointed to conduct the ballot will be notified to the parties shortly as will the period within which the ballot is to be held.

Panel

Mr Charles Wynn-Evans, Panel Chair

Mr Roger Roberts

Mr Steve Gillan

30 November 2020