Decision

Decision

Updated 14 July 2021

Applies to England, Scotland and Wales

Case Number: DI/04/2021

13 July 2021

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SECTION 183 – DISCLOSURE OF INFORMATION

Parties

KCL UCU Branch

and

King’s College, London

1. Introduction

1) The King’s College London branch of the University and College Union (KCL UCU or the Union) submitted a complaint dated 23 April 2021 to the CAC under section 183 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act). The complaint related to an alleged failure by King’s College, London (the Employer) to disclose information for the purposes of collective bargaining. The Employer submitted a response to the Union’s complaint dated 30 April 2021 which was copied to the Union.

2) In accordance with section 263 of the Act, the CAC Chair established a Panel to consider the complaint. The Panel consisted of Mrs Sarah Havlin, Panel Chair, and, as Members, Miss Mary Canavan and Mr Paul Moloney. The Case Manager appointed to support the Panel was Linda Lehan and, for the purposes of this decision, Nigel Cookson.

3) In its complaint, which was made in respect of “workers of King’s College, London”, the Union stated that it had requested, both verbally and in writing, the following information for collective bargaining purposes:

1) up to date projections on the surplus and deficit for the year (these should be calculated on a rolling basis);

2) full management accounts that were sent to Deans on a monthly basis;

3) the main variances from the budget;

4) capital expenditure plans.

The Union said that it had suggested that the most up to date, readily information available was disclosed, namely the Corporate Management Accounts, the Sustainability Plan, and all relevant updates. However, what it had received was old accounts from May 2020, and a table with no relevant details on income, student intakes, departmental breakdowns, variances, capital expenditure plans.

4) It had requested this information in general verbally at the ‘Joint Information, Consultation and Negotiation Committee’ (“JCINC”) on 25 February 2021 and had then confirmed the request in writing, after an apparent verbal commitment to share accounting information, in an email on 1 March 2021 (copy provided). A series of follow up emails were sent to the Employer with the latest on 21 April 2021.

5) Asked to give details of the collective bargaining purpose for which the Union requested the information above, the Union stated that it had requested full accounting information for the purpose of collective bargaining over pay and conditions. It had invited an offer at the JCINC on 25 February 2021 to reverse the 0.8% inflation-led pay cut of 2020, and to recognise the incredible sacrifices that staff have made in the pandemic. There was record student intake in 2020, and therefore record student tuition fee income, in each faculty and department, although there appeared to be some variations. The Union therefore needed to understand the scope of this, and distribution across departments and faculties.

6) Asked to give detail how it had been materially impeded in collective bargaining by not receiving the information the Union stated that without information it was unable to assess the College’s true and fair accounting position, and therefore was unable to gauge accurately what a fair share of gains and risks there would be. It had no ability to gauge the contributions of different faculties and departments without full information on the student intake and income that its members’ work generated, nor the balance of this against other activities of the College, such as its decisions as a landlord or in property investment.

2. Overview of subsequent submissions by the parties

7) In its response dated 30 April 2021 the Employer confirmed that the Union was recognised for collective bargaining for the workers described in the Union’s application but it did not accept that the Union had requested information for the purposes of collective bargaining. The Union had said it had requested the information for collective bargaining over pay and conditions, specifically in respect of pay but basic pay was not a matter for collective bargaining on a local level and so the Union was not materially impeded in collective bargaining by not receiving the information. Basic pay was increased through the national collective bargaining structure by way of the Joint Negotiating Committee for Higher Education Staff (“JNCHES”), to which the Union was a signatory, and determined at national level. A copy of the current JNCHES agreement dated 26 March 2013 and a list of participating institutions was provided by the Employer. Notwithstanding this, the Employer had provided the branch with a copy of the latest current financial forecast summary and it would meet with the Union to discuss any updates.

8) Commenting on the Employer’s response, the Union, in an email dated 7 May 2021, stated that the wording of s. 181 of the Act was very clear and that without financial information of any depth the Union would be entirely bargaining in the dark. The comprehensive financial information was requested in accordance with the ‘Acas Code of Practice on disclosure of information to trade unions for collective bargaining purposes’ for collective bargaining in general and this was necessary not just to assess the financial position last year, within the LWA, but for the future and in general. The Union would be seeking further information on how to allocate resources to eliminate the gender and racial pay gaps shortly.

9) The Union was then asked to provide the CAC with a copy of the recognition agreement and to clarify exactly what the Union was seeking to raise with the Employer and explain how that issue or issues fell within the terms of the recognition agreement and how it related to the information sought by the Union. In an email dated 14 May 2021 the Union stated there was a ‘general’ duty to disclose information, that was ‘all information relating to the employer’s undertaking’ and ‘without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining’. The matters about which information must be provided according to law did not depend on the Union disclosing a particular strategy in advance. There did not appear to be a duty on unions to disclose information, or indeed reasons for seeking it, in the law. The Union attached to its email the previous ‘recognition agreement’ and the draft that it had proposed for comparison.

10) The Union was seeking to understand the whole financial position, including all sources of income, by faculty, and in relation to the accommodation business. This was material to the justification for not negotiating about pay: that while there was record student fee income, there were losses in the accommodation business. Finally, there was national pay bargaining and local pay bargaining within the scope of the LWA. The Union did not accept the assertion that it was pre-empted from negotiating on pay locally, above the minimum set by the sectoral collective agreement.

11) On 18 May 2021 the parties were reminded that the usual practice of the CAC, subject to the agreement of the parties, was to hold an informal meeting to clarify the outstanding issues and to establish whether the matter can be resolved by conciliation before the matter is set down for a formal hearing and they were asked whether they would be prepared to attend such a meeting. On 19 May 2021 the Union emailed stating that, given the Employer’s refusal to talk informally about disclosure of information since February, and the refusal to disclose any information, it would welcome a decision of the Panel to avoid any further delays.

3. The hearing

12) Having considered the documentation submitted by the parties as well as the refusal on the part of the Union to attend an informal meeting, the Panel gave notice that a formal hearing would take place on 21 June 2021. This hearing took place by virtual means and the names of those who attended on behalf of the parties are annexed to this decision.

13) At the outset of the hearing the Employer confirmed that it accepted that the Union, together with Unison and Unite, was recognised at a local level for collective bargaining in respect of the LWA but it did not believe that the failure to disclose the information requested by the Union impeded it to a material extent in conducting collective bargaining on this issue.

4. Summary of the submissions made by the Union

14) In opening, the Union explained that its claim was about protecting its members’ interests in order that they felt valued. Its case was simple; it was recognised for collective bargaining and the Employer had failed to provide information in accordance with good industrial practice. The Employer had sought to argue that it did not recognise the Union in respect of bargaining for local pay but now acknowledged that bargaining at a local level in respect of the LWA had taken place. That the Employer was refusing to bargain at the moment was not relevant to the request for information: it was no answer for the Employer to state that the Union could not be impeded if collective bargaining was not taking place.

15) When the Union had originally requested the information during the February JCINC meeting it had requested disclosure of all accounts on an ongoing basis. It followed the request by specifying that it sought the ‘Corporate Management Accounts’. This gave a detailed breakdown of student fee income, research income, spending, faculty budgets, central College budgets, surpluses, deficits, and methodologies for forecasts and calculations. The Union stated in general terms that it sought: up to date projections on the surplus and deficit for the year calculated on a rolling basis; full management accounts that were sent to Deans on a monthly basis; the main variances from the budget; and capital expenditure plans.

16) It argued that this information was critical and that failing to disclose information was contrary to the extensive provisions in the Acas Code of practice, where paragraph 11 gave examples of the sort of information that should be disclosed by employers.

17) The Union was materially impeded in collective bargaining without full disclosure of the accounting information in three ways: first, it was not possible to assess the reasonableness of any pay claim that it submitted, such as the claim for a reversal of the 0.8% pay cut from 2020 (due to inflation), and the 2019 pay claim, both through a rise in the LWA that was locally negotiated; second, it was not possible to determine the credibility of reasons given for refusing pay claims, such as the reason given at the February JCINC that there were losses in student accommodation which offset the record increases in income from student fees; and third, it was difficult to work together in good faith on common issues, to give ideas, engage in dialogue and bargain over solutions without information. The Union could not get an accurate picture of the Employer’s financial position without the information to back it up.

18) According to ‘Harvey on Industrial Relations’, para 2543-4, there was ‘no need to demonstrate that any specific negotiations were taking place’ for example, because an employer was suddenly saying they would never negotiate local pay arrangements for the duty to disclose information to arise. Moreover, a trade union was entitled to information at ‘all the stages of’ collective bargaining, including preparation of claims, in the course of negotiation.

19) The Union had repeatedly tried to settle this matter informally, including most recently at the JCINC on 10 June 2021, however it had been met with a flat refusal. This indicated that, while informal and voluntary resolution was always desirable, an informal hearing chaired by the CAC would have likely been used in bad faith as a pretext to delay.

20) The Union submitted that being recognised by the Employer for bargaining in respect of the LWA at a local level did not cut across the national recognition agreement and that this was a joint claim for information to be disclosed and so entirely consistent with the national agreement. As for how the Union was impeded, in general terms, it needed to assess those factors which might influence the formulation of a claim. The information was also necessary to assess the adequacy of any reasons should the Employer’s refuse the claim. If the Union could not see the accounts then it could not make suggestions. Asked by the Panel as to what information remained outstanding, the Union said that it lacked the information found in the Corporate Management accounts and the monthly reports to the faculty Deans. This information was the sort referred to in the Acas code as being good practice to be disclosed. The Union was not requesting one specific document but it needed to see the figures on the income generated from the different faculties, for example how much did the law school generate, and it should see the allocation of profit and a breakdown of expenditure for example, staff wages and building projects. All of this information was available in the management accounts.

21) The Union submitted that the Employer’s case was founded on four main misconceptions. The first was that the Union had received sufficient information but the information provided was out of date and the Employer had stated that the Corporate Management Account and the Dean’s information did not exist. The finance update that it had received only gave headline figures with no workings out and the sources of income were not provided. Other information provided by the Employer was either out of date or not sufficiently detailed. The second misconception was that the Employer’s refusal to negotiate over the LWA entitled it to refuse to provide the information requested. But, as shown by the references to Harvey’s, this was not the case. The third misconception was that this claim was solely linked to pay and the reversal of the 0.8% pay cut but the request had never been about pay. The Union needed information to understand the allocation of pay resources across facilities, gender and ethnicity arguing that it would not be able to see variations by faculty if the information was not broken down to this level.

22) Asked by the Panel to explain the relevance of the information to negotiations over the LWA or to confirm whether it was claiming wider power at local level, the Union said that the claim did include LWA and that it was not aware of anything in the national bargaining structure which pre-empted local bargaining. The national agreement set minimum standards and a local agreement could go further.

23) The fourth misconception was that the Union was asking for more than it was entitled to. It was simply asking the Panel to uphold the provisions of the Acas code which gave examples of the sort of information that an employer should provide. The Union wanted ongoing cooperation with the Employer in good faith. No reasons had been given for the refusal by the Employer as paragraph 20 of the Acas code required. The first refusal was on 30 April 2021 - prior to this date the Union had been delayed but had not been refused the information. The Panel asked whether the Union accepted that information had been disclosed by the Employer but that there were omissions. The Union said the information that had been disclosed was almost entirely out of date and contained broad headline figures which did not allow it to drill down to the level it needed.

24) The Union confirmed that the other unions recognised by the Employer were comfortable with these proceedings being brought and it confirmed that its position was empowered under the local agreement. Asked whether the Union was empowered to bargain on basic pay under the local agreement, it stated that at no stage had it wanted to depart from the national agreement on basic pay but that there was flexibility in the LWA.

25) Asked whether the Union felt impeded in negotiating the LWA because the information was not at faculty level, the Union stated that the allocation of resources determined what was left for pay. Although there was a record number of students and record student income, the Employer had said that there were losses in student accommodation and the Union would need to see the accounts to see the extent of the problem. The Panel asked whether the Union saw any merit in the argument that what it was seeking was wider than recognition for the LWA and that if it was materially impeded, it must be in respect of the LWA. The Union said that it saw no merit in that submission. The Union was not provided with reasons for the refusal and could have worked with the Employer to meet any concerns it may have had. If it was about sharing confidential information, the Union could have worked with the Employer. Asked by the Panel whether a national pay claim had been formulated for 2021, the Union said that a joint claim had been submitted and it believed it was awaiting final offers from the Employers.

26) In summation, the Union requested that the Panel required the Employer to disclose all accounting information to the full extent of the Acas Code and that both the misrepresentation of the Employer, regarding non-negotiation of local pay claims, was recorded as well as its delays. The Union also sought a recommendation in the decision for disclosure on an ongoing basis in the spirit of cooperation, and good faith. The Union did not want meetings at which it could interrogate the Employer, it would rather have a spreadsheet so that it did not have to ask for information that did not exist. Even though there had been a blurring of cost centre boundaries, the Union understood that faculty Deans were receiving monthly accounts. The Union could not access the Employer’s calculations without a breakdown of the figures and without the breakdown, the Union was being asked to take for granted the Employer’s figures. It wanted to be able to see the figures for itself so it knew how the money was being accounted for. The Union was impeded by not being able to see the options that were available to management and this affected he Union’s ability to negotiate.

5. Summary of the submissions made by the Employer

27) The Employer stated that it valued the cordial and constructive relationship that it had with its campus trade unions including providing timely and relevant financial information, sometimes privileged and commercially sensitive, to ensure they had a thorough understanding of the institution. The Employer would not withhold information without which the unions would be material impeded whilst undertaking collective bargaining but the Union had departed from this long-standing and implicitly agreed method of sharing financial information and had started asking for additional information and documents.

28) The current arrangements, which was common ground, was that national agreements provided for collective bargaining on basic pay. The local agreement provided that the JCINC could discuss the local implementation of national agreements however, it would not consider any policies or practices that conflicted with these national agreements. The local consultation and collective bargaining agreement was a very simple document in that it did not specify topics for local bargaining. Local unions had sought to remedy this by proposing an expanded local collective bargaining agreement but this had yet to be agreed.

29) The Employer acknowledged that it had negotiated locally on the LWA twice in previous years. In 2015/2016 the parties’ negotiations did reach a successful conclusion and, the Employer noted, this was without the Union being provided with the information requested here. The Employer questioned why the Union wanted information broken down on a faculty basis when it was the overall picture which mattered, especially on a multi-faculty university like here.

30) The Union’s request related to a pay claim which asked the College “to reverse the 0.8% inflation-led pay cut of 2020 and to recognise the incredible sacrifices that staff have made in this pandemic”. The Employer explained that there was no pay rise in 2020 - the Union had used the rate of inflation to arrive at what it said was the loss of real earnings for the workers and this was what it sought ‘to reverse’. But it was to be noted that the pay freeze of 2020 would be factored into the national pay bargaining framework for 2021, to which the Employer was a participant. In addition, most staff were on a pay spine and for many this included automatic incremental progression unless they had reached the maximum of their pay grade. In effect this represented individual pay increases in the region of 2-3% for the relevant workers. The Union’s perception that staff had received a 0.8% pay cut must be exclusively addressed, as it was, in national collective bargaining.

31) It said that it had requested disclosure of accounting information to gauge accurately what a fair share of gains and risks there would be and that, without it, the Union would be material impeded in collective bargaining. However, the Employer’s submission was that this related to a claim for increased pay and so was outside the remit of the local bargaining arrangements. The Employer did not collectively bargain with the Union on basic pay whilst it participated in national pay bargaining and it would not collectively bargain to address local concerns about any perceived inadequacy in national pay bargaining.

32) This accorded with the Union’s request for the disclosure of the four categories of information which was in general terms and failed to identify any issue in collective bargaining because the reason related to basic pay. No information related to the LWA was requested because this was all about the Union’s perception that the Employer should be able to afford a better basic pay deal than was being negotiated nationally.

33) The Employer’s initial response to the request was to say that it had been running with rolling forecasts rather than budgets so management accounts were of little value. Rather than setting out why the information provided was inadequate, the Union instead insisted on the disclosure of the four items requested stating that it was looking for much more than simply enforcing the law’s minimum requirements. This told the Employer that this was a request by the branch rather than the Union at national level, i.e. the body which collectively bargained on basic pay. It was also acceptance that the Employer had met the law’s minimum requirements by giving good and full financial information.

34) When asked by the CAC about the purpose for the information and the way in which it had been materially impeded, the Union simply stated that it would be collectively bargaining in the dark, but did not say about what. It said that it had requested comprehensive financial information in accordance with the Acas Code for collective bargaining in general but requesting financial information for this reason was not within the Code of Practice. Contrary to the Code, the Union had failed to identify the subject-matter of the negotiations. This was because the financial information sought was relevant to pay bargaining and the Code indicated that the level at which negotiations took place must be considered.

35) The Union made generalised and unspecific references to the LWA in its email of 7 May 2021 stating that it needed to understand the full scope for allocation of resources, and decision-making about the sources and destinations of student and research income, the balance between education and accommodation businesses, and everything else that materially affected its members’ wages and conditions. However, wages i.e. basic pay was not collectively bargained locally whilst the Employer participated in national pay bargaining and therefore there was no statutory duty to provide the information requested. The Union also suggested that its offer to rectify the 0.8% pay cut through the LWA system, was separate to and above National Pay Bargaining but the Employer would not bargain about a perceived shortfall in pay or perceived unhappiness with national collective bargaining by opening up LWA to address something other than London costs and expenses of living and commuting. That would be to undermine the national collective bargaining system and indeed the stated purpose of the LWA.

36) In its recent email the Union stated that its reasons for seeking information were irrelevant. That, however, was not the law. The Union’s reasons must be that the information was needed for some issue that fell within its collective bargaining remit otherwise it would not to a material extent impeded in carrying on collective bargaining.

37) The Employer’s position as clear in that it had not engaged in local pay bargaining for basic pay as it participated in national pay bargaining and it would not enter into two sets of negotiations. As stated above, the Employer had, however, voluntarily negotiated locally on the LWA twice, most recently in 2015/6 and, as part of that process, the Union had acknowledged that there was no agreed established local negotiating body for LWA.

38) There was in fact already an outstanding claim for an increase in LWA separate to this request that had been received from UNISON on behalf of the three recognised trades unions. In 2019 the unions made reference to the Employer’s published Financial Statements and information held by the Office for Students to justify the affordability of their LWA claim. In particular, they highlighted the published surplus and cash reserves and, at no point, did the unions state they required more information to participate in collective bargaining. This claim was first discussed in 2019 and although the pandemic resulted in negotiations being placed on hold, the claim was still alive, and the Employer had committed to reopen discussions in the future. It was important to note that none of the other unions involved in the LWA negotiations had requested the information subject to this complaint.

39) The two other unions were concerned about whether the rate of LWA reflected the costs of living and working in London whereas the Union simply wanted to reverse what it perceived as last year’s 0.8% pay cut by seeking to raise that issue under the pretext of LWA negotiations.

40) The Employer had always provided regular and detailed financial information, not only information associated with collective bargaining but also as a matter of good practice. In the quarterly joint union meetings, one session per year was set aside for the Chief Finance Officer (or equivalent) to attend, make a presentation, answer questions, and provide any further information requested. In the recent, exceptionally challenging times, this level of engagement on financial matters had increased substantially and the Employer had provided significantly more information on the status of its finances, including information that was commercially sensitive but was an illustration that it was acting in good faith. This information included: the Financial Strategy for 2020/21 (including multiple scenario planning for the cash position as of July 2021); the cost reduction plan for 2020/21; the planning for the impact on tuition fees for 2020/21 through to 2022/23; the estates trading status for 2020/21; multiple scenario planning for the detailed cash flow both actual and projected from 2019/20 through to 2021/22; multiple monthly scenarios actual and projected for the cash flow and debt from July 2019 through to July 2021; and an analysis of the working capital and a 6-page capital plan. This information was in addition to the regular finance updates and the Financial Statement for the year ending July 2020, running to some 60 pages. The Employer included a copy of the financial information that it had shared with the Union with its submissions.

41) It was incorrect for the Union to say that the Employer had refused to disclose any information as could be seen by the information enclosed. There had been no refusal to talk informally and no refusal to disclose any information. In response to getting further and detailed financial information it seemed extraordinary that the Union reacted, not by engaging with the information provided, but by making a formal complaint to the CAC and then declining an informal meeting. The essential answer to this complaint was that the Employer shared with the unions all the relevant financial information in its possession. The Union was provided with the information detailed previously and had up-to-date financial forecasts provided in April and which were updated on 10 June 2021 by the Chief Finance Officer.

42) The Union sought information that it had already been provided with, information that the Employer did not have and it requested specific documents. It was not for the Union to request any document but there must be purpose to its request.

43) Addressing the four categories of information requested by the Union, the Employer stated that, on 26 April 2021, financial information was sent to the Union by email, namely the April 2021 financial update; the recruitment report to Council which set out the current situation with regard to student recruitment, the projected impact of Covid-19 disruption and the mitigations being put in place to maximise the home and international intake for 2020-21; the Employer’s Report and Accounts for the year to 31 July 2020; a report for the Joint Meeting of the Finance and Estates Strategy Committees on 7 May 2020 regarding the Employer’s capital programme – current position, priorities and commitments/value; and a report for a meeting of King’s College Council on 14 May 2020 regarding the Covid financial strategy development and near-term plan 2020/2021. On 10 June 2021 the Union was then provided with up to date projections on the surplus and deficit for the year calculated on a rolling basis. Projections were also set out in the Financial Strategy for 2020/21 and the Multiple scenario planning. The end of year for the current financials was in July and when these were signed off, then the Employer would be willing for them to be interrogated as appropriate. Whether this would be at university wide level or faculty remained to be confirmed.

44) In respect of the request that the full management accounts that were sent to deans on a monthly basis be disclosed, the Employer stated that not only was this a specific document and so exempt from disclosure, it was one that did not exist. As for the main variances from the budget, it was explained to the Union that the Employer had been running with rolling forecasts rather than budgets so management accounts were of little value. The main variances from the budget could be seen in the documents provided. The capital expenditure plans were included in the analysis of the working capital and a six-page capital plan. Relevant information was set out in the documents provided in 2020 and recirculated on 26 April 2021. If the Union could show that it was materially impeded then the Employer would share the information however the Employer did not see any impediment at all as far as negotiations over the LWA were concerned.

6. Considerations

45) In reaching its decision on this complaint the Panel has carefully considered the oral and written submissions of both parties. The Panel records its gratitude for the forbearance shown by the parties in answering the many questions put during the course of the hearing and which greatly assisted our understanding of their respective positions on the matters that are subject to this complaint.

7. The Relevant Law

46) Section 181 of the Act, so far as is material to this case, provides that:

181 General duty of employers to disclose information

(1) An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section. In this section and sections 182 to 185 “representative”, in relation to a trade union, means an official or other person authorised by the union to carry on such collective bargaining.

(2) The information to be disclosed is all information relating to the employer’s undertaking (including information relating to use of agency workers in that undertaking) which is in his possession, or that of an associated employer, and is information –

(a) without which the trade union representatives would be to a material extent impeded in carrying on collective bargaining with him, and

(b) which it would be in accordance with good industrial relations practice that he should disclose to them for the purposes of collective bargaining.

(3) A request by trade union representatives for information under this section shall, if the employer so requests, be in writing or be confirmed in writing.

(4) In determining what would be in accordance with good industrial relations practice, regard shall be had to the relevant provisions of any Code of Practice issued by Acas, but not so as to exclude any other evidence of what that practice is.

(5) Information which an employer is required by virtue of this section to disclose to trade union representatives shall, if they so request, be disclosed or confirmed in writing.

47) Section 182(1) sets out circumstances wherein an employer is not required to disclose information. In effect, it lists the various defences an employer can argue against disclosing information requested by a trade union. None of the defences listed in this section have been argued in this case. Section 182(2) then sets out further restrictions on the employer’s duty to disclose. It provides:

(2) In the performance of his duty under section 181 an employer is not required -

(a) to produce, or allow inspection of, any document (other than a document prepared for the purpose of conveying or confirming the information) or to make a copy of or extracts from any document, or

(b) to compile or assemble any information where the compilation or assembly would involve an amount of work or expenditure out of reasonable proportion to the value of the information in the conduct of collective bargaining.

48) Section 183 is the enabling provision that allows a complaint to be made to the CAC in circumstances whereby an employer has either failed to disclose to representatives of the union information which it was required to disclose under section 181 or it failed to confirm such information in writing. This section then goes on to set out how the CAC should dispose of a complaint brought under these provisions.

8. Considerations

49) The question for the Panel to address is whether, given the circumstances of this case, the Employer is under the duty set out in section 181 to disclose the information requested by the Union. If the Panel is to find in the Union’s favour and uphold its complaint, it must be satisfied that the conditions set out in section 181 are satisfied.

50) The conditions with which the Panel is concerned are articulated in clear and concise terms. Whilst there was no argument by the Employer that it recognised the Union at a national level for bargaining over pay, there was some initial disagreement as to whether the Employer recognised the Union at a local level for collective bargaining over the LWA. The Employer then accepted that collective bargaining over the LWA had taken place, at least on two occasions, and so there is no determination needed as to whether or not the Panel has jurisdiction under section 181(1).

51) Turning now to the tests under section 181(2), for the Employer to be under a duty to disclose information to the Union, it has to be information without which the Union would be to a material extent impeded in carrying out collective bargaining with the Employer. If the Panel is satisfied that this is the case, it will then move on to consider the second limb under section 181(2) and whether it would be in accordance with good industrial relations practice that the Employer should disclose the information for the purposes of collective bargaining. To assist the Panel with its determination as to what would be in accordance with good industrial relations practice, the Act states that the Panel should have regard to the relevant provisions of any Code of Practice issued by Acas, but not so as to exclude any other evidence of what that practice is.

52) The facts of this case can be briefly set out. The Union is one of three trade unions recognised by the Employer for the purposes of collective bargaining and the Employer negotiates with the three unions on pay as part of a national agreement, the Joint Negotiating Committee for Higher Education Staff, which, as well as KCL, covers a whole host of further education establishments throughout the country. The Employer’s position is clear. It is not prepared to enter into negotiations at local level over pay whilst it is party to the national agreement. However, outside of the national agreement there are matters which the Employer is prepared to negotiate on a local level with the three unions. One of these matters in recent years has been the LWA. The specific matters over which the Employer is prepared to negotiate on a local level are not set out in the local agreement- it simply states that the Employer will negotiate with staff when it is “necessary to do so”. The Union along with its sister unions, are trying to clarify those matters that are subject to local bargaining and they have put forward a revised agreement with a list of topics from (a) to (o), which includes, as the first item, ‘pay, hours and holidays’. This agreement has not been signed by the Employer.

53) In 2020 there was no general pay award although workers on a pay spine that were on less than their salary maximum received an automatic incremental progression to the next spine point. The Employer said that this represented a 2-3% uplift for those workers concerned. The Employer also submitted that the 2020 pay freeze would be factored into the national pay bargaining framework for 2021.

54) The Union however, wished to seek redress for what it perceived as a real-terms pay cut of 0.8% - this was the Consumer Price Index rate of inflation at the relevant time – and so had requested full accounting information for the purpose of collective bargaining over pay and conditions from the Employer. In its complaint the Union linked this request with the offer it made at the JCINC meeting on 25 February 2021 to reverse the 0.8% inflation-led pay cut of 2020. Asked to detail how it had been materially impeded in collective bargaining by not receiving the information requested, the Union stated that without information it was not able to assess KCL’s accounting position and so it was unable to gauge accurately what a fair share of gains and risks there would be. It went on to say that it was not able to gauge the contributions of the different faculties and departments as it did not have information on the student intake and income and was therefore unable to balance this against other activities such as the decisions taken by the Employer as a landlord or in property investment. The Union acknowledged that the Employer had provided some information but it claimed that it was either out of date or it was not broken down by faculty and so the Union was not in a position where it believed it could enter into negotiations as it lacked a full appreciation of the Employer’s financial position and it would not be able to understand the Employer’s decision making processes as a result.

55) Clearly, the purpose of the disclosure provisions is to encourage the flow of information with the aim that it improves a union’s knowledge of the relevant undertaking and therefore its ability to take part in the process of collective bargaining with an employer. The ‘information’ concerned must have some relevance to whichever element of collective bargaining happens to be the subject of the parties’ negotiations. The test in section 181(2) (a) refers to information ‘without which’ the trade union would be impeded. In other words, does the absence of this information hinder the Union’s efforts to take part in collective bargaining with the Employer. As the only issue that is on the table here, and this is common ground between the parties, is negotiations over the LWA, the question for the Panel is whether we take the view that the information requested by the Union is information that is necessary for it to bargain with the Employer on this single topic.

56) Having determined the standing of the Union with regard to collective bargaining rights, the Panel must next turn to the more practical questions of:

(a) the degree to which the Union is hindered in undertaking its legitimate role by the non-disclosure of the information which it seeks, and (b) whether or not disclosure would be in accordance with good industrial relations practice.

57) In order to find the Union’s complaint well-founded, the Panel must be of the view that non-disclosure of the information impedes the Union “to a material extent” in its ability to collective bargaining with the Employer on the sole topic of the LWA.

58) The information sought by the Union was disclosure of the Employer’s up to date projections on the surplus and deficit for the year which should be calculated on a rolling basis; full management accounts that were sent to deans on a monthly basis; the main variances from the budget; and capital expenditure plans. The Union acknowledged that the Employer had provided information on its financial position but argued that the finance update only provided headline figures with no workings out and the sources of income were not provided. It said that other information that had been provided by the Employer was either out of date or not sufficiently detailed.

59) The Employer said that it had responded to the Union’s shopping list, albeit most of the information may not have been provided until shortly after the Union had submitted its complaint. It said that despite the information not being relevant for the purposes of collective bargaining on the grounds that collective bargaining on the issue of basic pay took place at national level, it nonetheless provided the Union with the latest current financial forecast summary. It also committed to updating the forecast and meeting with the Union to discuss those updates. The Union was also provided with the Employer’s Financial Statement for the year ending 31 July 2020; a copy of the Capital programme; and the Financial strategy including detailed financial planning assumptions and modelling and student recruitment assumptions. The Union was also provided with the April 2021 financial update; the recruitment report to Council setting out the latest situation with regard to student recruitment, the projected impact of Covid-19 disruption and the mitigations being put in place to maximise the home and international intake for 2020-21; a report for the Joint Meeting of the Finance and Estates Strategy Committees on 7 May 2020 regarding the Employer’s capital programme – current position, priorities and commitments/value; and a report for a meeting of King’s College Council on 14 May 2020 regarding the Covid financial strategy development and near-term plan 2020/2021. This was followed up on 10 June 2021 when the Union was provided with up to date projections on the surplus and deficit for the year calculated on a rolling basis. The Employer also stated that the end of year for the current financials was in July and it would allow these to be interrogated as appropriate once they had been approved.

60) The Employer stated that the second of the items on the Union’s list i.e. the full management accounts that were sent to deans on a monthly basis did not exist. In any event, the Employer is not obliged to disclose a particular document and the Union did not specify the exact nature of the information that it believed it would find in such a document Regarding the main variances from the budget, the Employer submitted that this information could be found in the document sit had provided to the Union. Finally, the capital expenditure plans were included in the analysis of the working capital and a six-page capital plan and this had been set out in documents provided in 2020 and recirculated on 26 April 2021.

61) The Panel has concluded, after careful consideration of the material before us, that the Employer has disclosed sufficient information to enable the Union to bargain over the LWA. The Union has not demonstrated how it has been impeded to a material extent in its ability to conduct collective bargaining over this topic. In our view, the Employer is not obliged to provide information at the level sought by the Union i.e. broken down by faculty, in order to conduct collective bargaining over an issue that is not dependent on the profit or loss of individual faculties but on the undertaking as a whole. The Union has not therefore convinced the Panel that it requested this information for the purposes of collective bargaining for matters over which it is recognised at this level. This we believe was demonstrated when the Union submitted that the Employer’s case had been founded on four main misconceptions. Setting out the third misconception in its oral submissions, the Union stated that it needed the information to understand the allocation of pay resources across facilities, gender and ethnicity and that it would not be able to see variations by faculty if the information was not broken down to this level. We do not see the link between this information and negotiations over the university-wide LWA.

62) The Panel is not therefore persuaded that the information sought is key to collective bargaining over the LWA. In our view, we cannot see how specific information on a faculty by faculty basis would benefit the Union’s ability to negotiate on the LWA. Headline figures should be sufficient in negotiations over a university-wide allowance.

63) The Panel was of the view that the Union argued the case that it was materially impeded from understanding the wider decision making of the Employer, but it did not establish the case that the Union was materially impeded from collective bargaining. The Panel’s assessment of this issue is based on three key facts:

i. It is common case that the Union at local level is not empowered under the terms of the recognition agreement to conduct collective bargaining on basic pay. Therefore the issue of material impediment in the context of negotiations on basic pay cannot be considered under these proceedings.

ii. It is common case that the Union at branch level is empowered to negotiate on the narrow issue of LWA

iii. In the view of the Panel, the issue of material impediment for determination relates only to any impediment to collective bargaining in the context of LWA only. The conclusion of the Panel is that the information sought by the Union is not necessary to enable negotiations on LWA and therefore the test of material impediment has not been met.

64) Having determined that the Union has not satisfied the Panel that it would be to a material extent impeded in carrying on collective bargaining over the LWA, we do not need to consider the second limb of section 181(2) and decide whether or not the disclosure of the information requested would have been in accordance with good industrial relations practice.

9. Decision

65) For the reasons given above, the complaint is not well-founded. The non-disclosure of the information does not impede the Union to a material extent in carrying out collective bargaining.

Panel

Mrs Sarah Havlin, Panel Chair

Miss Mary Canavan

Mr Paul Moloney

13 July 2021

10. APPENDIX

Names of those who attended the hearing

On behalf of the Trade Union:

Dr Ewan McGaughey - KCL UCU Branch President

Professor Keith Ewing - Professor of Public Law, King’s College, London

Mr Barry Jones - Regional Official, HE London, University and College Union

On behalf of the Employer

Mr Nigel Brailsford - Director of Remuneration & Policy, Human Resources