Acceptance Decision
Updated 3 October 2023
Applies to England, Scotland and Wales
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Case Number: TUR1/1335(2023)
29 June 2023
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:
NEU & NASUWT
and
Roedean School
1. Introduction
1) NEU & NASUWT (the Unions) submitted an application to the CAC on 5 June 2023[footnote 1] that they should be recognised for collective bargaining by Roedean School (the Employer) for a bargaining unit comprising “teachers excluding the headteacher entitled to join the Teachers’ Pension Scheme employed by Roedean School.” The location of the bargaining unit was given as Roedean School, Roedean Way, Brighton, BN2 5RQ.” The CAC gave both parties notice of receipt of the application on 6 June 2023. The Employer submitted a response to the CAC dated 11 June 2023 which was received by the CAC on 12 June 2023 and 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 Ms Laura Prince, Panel Chair, and, as Members, Mr Mustafa Faruqi and Mr David Coats. The Case Manager appointed to support the Panel was Joanne Curtis.
2. Issues
3) The Panel is required by paragraph 15 of Schedule A1 to the Act (the Schedule) to decide whether the Unions’ 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 Unions’ application
4) In its application the Unions said that they had written to the Employer with a formal request for recognition on 18 May 2023. A copy of the Unions’ letter was enclosed with the application.
5) According to the Unions, there was a total of 354 workers employed by the Employer with 106 of these falling within the proposed bargaining unit. Asked to state the number of members in the proposed bargaining unit the Unions said “51 NEU, 12 NASUWT. Total membership of 63 in bargaining unit. A full membership list can be made available as required when the CAC wish to verify this.” Asked to provide evidence that a majority of the workers in the proposed bargaining unit were likely to support recognition for collective bargaining, the Unions said that a petition had been circulated in favour of recognition for the purposes of collective bargaining and that this included signatures of a majority of teachers within the bargaining unit.
6) When asked to give its reasons for selecting the proposed bargaining unit, the Unions stated that the teachers specified in the bargaining unit were all paid on the teachers’ pay scale, employed as teachers and expected to discharge teaching work on a teachers’ timetable. The Unions added “all teachers on the teachers’ pay scale are members of the Teachers’ Pension Scheme.” The Unions confirmed that the bargaining unit had not been agreed with the Employer.
7) The Unions confirmed that they had current certificates of independence and, asked to provide any available evidence that the unions concerned would cooperate with each other and enter single table bargaining arrangements the Unions stated “both Unions are members of the TUC and regularly submit joint applications for recognition to the CAC. We are jointly recognised at many independent and state schools.” The Unions stated that they copied the application and supporting documents to the Employer on 19 May 2023[footnote 2].
8) Finally, the Unions said there had not been a previous application in respect of this or a similar bargaining unit and there was no existing recognition agreement that covered any of the workers in the proposed bargaining unit. The Unions said that they were happy for their details to be forwarded to Acas.
4. The Employer’s response to the Unions’ application
9) The Employer stated that it had received the Unions’ formal request for recognition on 16 May 2023. An amended request for voluntary recognition was then received on 18 May 2023. Notice of application for statutory recognition was received on 6 June 2023. When asked what its response was, the Employer stated “I acknowledged receipt of the request as the School’s Head on 19 May 2023, confirmed that I would be out of School between 19 May 2023 and 26 May 2023 and confirmed that 29 May 2023 to 4 June 2023 was half-term. I therefore confirmed that a substantive response would be sent by the school in the week commencing 5 June 2023. Before the School had an opportunity to provide the Unions with a formal response in the week commencing 5 June 2023, the school received notice of the application for statutory recognition on 6 June 2023. The application for statutory recognition was made on 5 June 2023.” The Employer attached a copy of its email dated 19 May 2023 to the response document.
10) When asked to give the date it received a copy of the application form directly from the Unions, the Employer stated that it had not received a copy of the application form or any supporting documents from the Unions. The Employer said the application form and supporting documents was received from the CAC on 6 June 2023. The Employer confirmed that it had not agreed the bargaining unit prior to having received a copy of the completed application form adding “the bargaining unit proposed by the Unions in both the request for voluntary recognition dated 18 May 2023 and the application for statutory recognition was teachers excluding the headteacher entitled to join the Teachers’ Pension Scheme employed by Roedean School. Before the School had an opportunity to provide the Unions with a response in relation to the proposed bargaining unit the application for statutory recognition was made.”
11) Asked if it agreed the bargaining unit the Employer responded “No.” The Employer went on to say, “we would like to propose the following ‘bargaining unit’: Teachers (excluding the Headteacher, Senior Deputy Head, Deputy Head: Academic, Deputy Head: Pastoral & Deputy Head: Co-curriculum and Partnerships) entitled to join the Teachers’ Pension Scheme employed by Roedean School.”
12) The Employer stated that, following receipt of the Union’s request, it had not proposed that Acas should be requested to assist the parties. The Employer explained that before it had the opportunity to consider whether it should ask for the assistance of Acas the application for statutory recognition was made. The Employer said that it did not agree with the number of workers in the proposed bargaining unit as set out in the Union’s application stating that it should be 151. The Employer said that there was no existing agreement for recognition in force covering workers in the proposed bargaining unit.
13) In answer to the question whether it disagreed with the Union’s estimate of membership in the proposed bargaining unit, the Employer stated “the school has no reason to believe that the union membership is incorrect. The point to make however is that trade union membership is recommended to trainee and qualified teachers as a defensive step. The school agrees with this approach. The trade unions support our teachers if involved in internal procedures or are the subject of safeguarding allegations. Membership of a trade union is very different however to being active in the trade union and actively requesting recognition by the employer.”
14) 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 “we cannot know the answer to this question as information has not been shared with the school. We would be grateful if the unions could share the petition with the school.”
15) When asked if it was aware of any previous application under the Schedule by the Unions in respect of this or a similar bargaining unit the Employer said “the school is not aware of any previous application.” When asked if it had received any other applications in respect of workers in the proposed bargaining unit the Employer said “the request for voluntary recognition was first received on 16 May 2023. An amended request for voluntary recognition was then received on 18 May 2023.” The Employer stated that it was happy for its contact details to be forwarded to Acas.
16) Asked if it wished to put forward a case that the Unions would not co-operate with each other the Employer stated “the NEU has considerably greater representative membership in the teaching staff than the NASUWT. It is however a matter for the unions to ensure they communicate effectively and meaningfully.”
5. The Unions comments on the Employer’s response
17) In an e-mail dated 15 June 2023 the Unions said that they had not received an indication of any willingness from the Employer to enter into negotiations with the Unions over recognition within the statutory 10-day period nor agreement from the Employer to enter into voluntary recognition. The Unions added that the only correspondences received was a holding email dated 19 May 2023. The Unions said they provided the Employer with a copy of the application form previously submitted to the CAC on 5 June 2023 on 12th June 2023. The Unions said that their view was that as a result the application was valid and should stand. The Unions concluded by saying that they agreed to the bargaining unit proposed by the Employer in its response this being “Teachers (excluding the Headteacher, Senior Deputy Head, Deputy Head: Academic, Deputy Head: Pastoral & Deputy Head: Co-curriculum and Partnerships) entitled to join the Teachers’ Pension Scheme employed by Roedean School.”
18) In a further e mail dated 19 June 2023 the Unions said that they were concerned by the Employer’s assertion that there were 151 teachers currently in the proposed bargaining unit and that this may include teachers who had signed a contract for September. The Unions said that the Employer should be asked by the CAC to confirm that those 157 workers only consisted of those currently employed and not those who had a contract for future work.
6. The membership and support check
19) 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 unions (paragraph 36(1)(a)) and whether a majority of the workers in the proposed bargaining unit would be likely to favour recognition of the unions 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 Unions would supply to the Case Manager a list of their paid-up members within that unit including their full names and dates of birth and a copy of a petition in support of recognition. 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 15 June 2023 from the Case Manager to all parties. The information from the Employer was received by the CAC on 20 June 2023, and from the Unions on 19 June 2023.
20) The list supplied by the Employer contained the names of 142 workers and the list of members supplied by the Unions contained 84 names.
21) The Unions also provided a petition, which was headed with the NEU’s logo and contained 107 names/signatures. The petition consisted of 15 A4 sheets with columns headed: “Name (Printed Clearly)”, “Signature”, “Date” and “Union (if member).” The proposition of the petition read as follows:
“Trade Union Recognition Petition - Roedean School, Roedean Way, Brighton, BN2 5RQ
We, the undersigned, wish for the National Education Union (NEU) and The National Association of Schoolmasters Union of Women Teachers (NASUWT) to be recognised for the purposes of collective bargaining at Roedean School, Roedean Way, Brighton, on behalf of Teachers.
We wish for recognition to be agreed for all workers and employees in the specified bargaining unit at Roedean School, Roedean Way, Brighton and for this recognition to be for the purposes of collective bargaining on (but, not restricted to) pay, hours, holidays and other terms and conditions of employment.”
22) According to the Case Manager’s report, the number of union members in the proposed bargaining unit was 56, a membership level of 39.44%. The check of the petition showed that it had been signed by 94 workers in the proposed bargaining unit, a figure which represents 66.20% of the proposed bargaining unit. 48 of the petition signatories were members of the Unions and 46, that is 32.39% of the petition signatories, were non-members. A report of the result of the membership check was circulated to the Panel and the parties on 21 June 2023 and the parties’ comments invited. The Panel is satisfied that this check was conducted properly and impartially and in accordance with the agreement reached with the parties.
7. Parties’ comments on the membership check
23) In an email dated 23 June 2023 the Unions stated that both parties had accepted the definition of the bargaining unit to be “Teachers (excluding the Headteacher, Senior Deputy Head, Deputy Head: Academic, Deputy Head: Pastoral & Deputy Head: Co-curriculum and Partnerships) entitled to join the Teachers’ Pension Scheme employed by Roedean School.” The Union went on to say that a workplace representative had identified at least one current member of teaching staff who did not appear on the Employer’s list. The Unions said that this could be down to the teacher opting out of the Teachers Pension Scheme for a period of time. The Union said that just because a teacher had chosen to opt out of the scheme it didn’t mean they were not eligible to join. The Unions said that they were concerned that the Employer had not therefore provided the names of all the teachers eligible to join the Teachers Pension Scheme.
24) The Unions said that regardless of this error the report showed that:
-
“66.2% workers in the proposed bargaining unit have signed the petition.
-
39% of workers in the proposed bargaining unit are in membership of the unions.
-
Furthermore, since the check was carried out, support has continued to grow and others in the bargaining unit that haven’t previously signed a petition have done so.”
The Unions concluded by saying that the tests as set out in Paragraph 36 of the Schedule were more than met.
25) In an e mail dated 27 June 2023 the Employer stated it had considered the relevant bargaining unit, the number of workers in that unit who might support the request for recognition and the members of the unions. The Employer said that whilst the numbers suggested the tests would be met, it wished to draw the Panels attention to the fact that the bargaining unit was likely to change quite considerably. The Employer said that the academic year ends on Friday 30 June following which several of the bargaining unit members would leave the school’s employment. In September, the Employer said it would have several new joiners. The Employer said it had tried to understand the views of those in the bargaining unit to ascertain if the current majority would be affected. The Employer said it had sought to conduct a survey amongst the teachers to understand if they wished the school to recognise the Unions, but that this was hindered by a union representative who had wrote to colleagues advising them not to fill out the survey. The Employer concluded by asking the CAC to consider carrying out a reassessment of the bargaining unit in September 2023 when school resumed. The Employer said this approach would enable those joining who would be affected by recognition to also have their vote counted.
8. Considerations
26) In determining whether to accept the application the Panel must decide whether the admissibility and validity provisions referred to in paragraph 3 of this decision are satisfied. The Panel has considered all the evidence submitted by the parties in reaching its decision.
27) 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 and that it was made in accordance with paragraph 11 of the Schedule. The remaining issue for the Panel to address is whether the admissibility criteria set out in paragraph 36(1) of the Schedule are met.
9. Paragraph 36(1)(a)
28) In accordance with paragraph 36(1)(a) of the Schedule the Panel must determine whether members of the Unions constitute at least 10% of the workers in the Unions’ proposed bargaining unit. In this case the check of membership established that there were 56 union members in the agreed bargaining unit, a membership level of 39.44%. The check of the petition showed that it had been signed by 94 workers in the proposed bargaining unit, a figure which represents 66.20% of the proposed bargaining unit. 48 of the petition signatories were members of the Unions and 46, that is 32.39% of the petition signatories, were non-members.
10. Paragraph 36(1)(b)
29) The test in paragraph 36(1)(b) is whether a majority of the workers constituting the proposed bargaining unit would be likely to favour recognition of the Unions as entitled to conduct collective bargaining on behalf of the bargaining unit. The Case Manager’s check of the Unions’ petition against the list of workers provided by the Employer indicated that 94 of the petition signatories were workers from within the proposed bargaining unit, a support level of 66.20%. The petition was signed by 46 non-members amounting to 32.39% of the total. The wording on the petition is set out in paragraph 21 above. The Panel believes the proposition to be clear and unambiguous. The call for the Employer to “formally recognise the NASUWT and NEU for collective bargaining purposes” would leave the signatory in no doubt what they were being asked to support and the Panel is not persuaded by the assertion that those workers in the bargaining unit were not aware of what they were signing. It is an exceedingly short proposition. It is not one that is lengthy and confusing but brief and to the point.
30) 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).
11. Decision
31) For the reasons given above, the Panel’s decision is that the application is accepted by the CAC.
Panel
Ms Laura Prince, Panel Chair
Mr Mustafa Faruqi
Mr David Coats.
29 June 2023