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HCR Law Events

4 May 2021

Voluntary trade union recognition – guidance note

Executive summary

There are two routes to voluntary recognition of a trade union – formal and informal.

Informal voluntary recognition could be considered a more favourable option for employers – giving them greater control over what the scope of trade union involvement can and will be.

It is important to distinguish between an informal and formal request for voluntary recognition. If you have received a formal request, there will be a deadline to respond.

It is legitimate to refuse a request for voluntary recognition, for example if there is sufficient staff representation within a school. It is, however, helpful to gauge staff support for union representation.

Voluntarily recognising a trade union is not an irrevocable decision.

Background

Under UK employment law there are two routes to trade union recognition. First, the union(s) will usually seek recognition by negotiation with an employer on a voluntary basis. However, if agreement cannot be reached, it may seek statutory recognition by following the statutory procedure set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

The purpose of this note is to advise schools on voluntary trade union recognition. We are seeing a number of requests for voluntary recognition from the respective trade unions, particularly in the context of ongoing or planned consultations regarding the Teachers’ Pension Scheme (TPS). This note also provides guidance to schools in considering and responding to such requests.

The nature of voluntary recognition

As the title suggests, voluntary trade union recognition is something that is entered into by an employer of its own volition and does not form part of any statutory process. It may have felt obliged to recognise a trade union because of the potential threat of industrial action, for example, but the employer has nonetheless chosen to create an arrangement under which it can talk about the terms and conditions of at least some of its employees with a third party (usually internal trade union representatives) acting to some extent as the agent of those employees.

Voluntary recognition and collective bargaining

UK employment law recognises the existence of collective bargaining between trade unions and employers. In general, an employee has an employment relationship with the employer and discussions about that employment relationship are conducted on an individual basis. For example, if an individual employee wishes to be paid more for their work, they approach their employer, ask for a pay increase, and the increase is either granted or refused.  If there is a change to the terms and conditions, that change has been effected by agreement through individual negotiation.

Where collective bargaining is taking place between a trade union and an employer, it is possible for employees effectively to put their individual rights in the hands of a trade union so that negotiations can take place on a collective basis. Courts and tribunals recognise the ability of a recognised trade union to enter into a collective agreement with an employer that gives individual employees directly enforceable rights against the employer. In the most straightforward situation, if a trade union is recognised for collective bargaining and agrees a 5% pay increase with the employer, each of the employees covered by that collective bargaining arrangement have an enforceable individual right to that 5% pay increase.

Conversely, if a trade union agrees a 5% pay cut with an employer, all of the employees covered by that collective bargaining agreement are taken to have agreed to that pay cut.

It is important to note that the effect on the individual contracts of employment applies not only to members of the recognised trade union, but also to people who are not members of that union and even employees who are members of another trade union, if they are covered by the scope of the recognition agreement.  If the employer recognises a trade union for collective bargaining purposes for a certain group of employees, an individual employee within that group cannot ‘contract out’ of that collective bargaining arrangement.

The process for gaining voluntary recognition

A school may receive a request from a trade union for recognition voluntarily. This type of request is separate from the statutory recognition process under TULRCA, and the two processes should not be confused.

Conventionally, a trade union will approach the school (normally in writing) to request that they agree to recognition voluntarily. As an employer, if the school wishes to, it is free to agree with a union voluntarily for what purposes (if any) they will be recognised; however, in most cases, recognition is agreed with unions for the purposes of collective bargaining. 

Voluntary trade union recognition is usually confirmed by a voluntary recognition agreement (VRA, and also sometimes called a facilities agreement). This sets out the fact of the recognition, the extent of the recognition (i.e. which grades or parts of an organisation are covered by the collective bargaining rights) and any particular facilities afforded to the trade union so that it can service its members working for that employer. That might include an agreement that there can be a trade union representative, a notice board for the trade union’s use or access for trade union members to an external full time official of the trade union. In our experience, VRAs with schools tend to cover collective bargaining relating to “pay, hours and holiday”. We consider that “pay” in this context is likely to be construed widely to cover proposed changes in terms and conditions relating to membership of the TPS.

Trade union recognition can arise by implication, if the employer and a trade union conduct themselves so that a court or tribunal might infer that the union must be recognised for collective bargaining purposes. Naturally, it is always better to have any recognition arrangement reflected in writing, rather than being based on custom and practice.

An employer can agree with a trade union that trade union recognition will not extend beyond certain defined parts of its organisation. For example, a school might agree that a union has recognition rights in relation to teaching staff, but not support staff. Alternatively, recognition might be granted to all teaching and support staff but not to senior management grades. It is not usual to limit recognition to the union’s members in a workplace. Recognition is usually limited by reference to job types i.e. teaching staff or pay grades.

Responding to a request for voluntary recognition

If a school receives a request for voluntary recognition, it is initially important to establish whether it is a formal or informal request as this will impact on the procedural requirements for responding.

Set out below are details related to an informal request.  Further details to help you alternatively identify a formal request are set out towards the end of this note.

An informal request for voluntary recognition

If a request for voluntary recognition does not meet the criteria set out for a formal request (see ‘formal voluntary recognition under TULRCA’ below), it will fall into the informal category in respect of which there is no specific procedure for responding or applicable timeframes.

In our experience, it is common for a trade union to initially make a request for voluntary recognition on an informal basis, before proceeding with the formal route if this does not result in the desired outcome.

Strategy for responding to a request for voluntary recognition

In many cases a school may initially not wish to enter into a VRA with a trade union. For example, it may be that the school already has a staff committee (e.g. a Joint Consultative Committee (JCC)) in place or another form of staff forum that they find sufficient and effective for the purpose of consulting with staff.

In those circumstances, it is perfectly legitimate to politely refuse the union’s request. Having said that, it is important to consider the views of staff and the potential risk of the union subsequently pursuing statutory recognition if they feel they have a sufficient level of support.

We would generally recommend that, where a school is minded to refuse a voluntary recognition request, they seek to arrange a meeting with the trade union to discuss whether or not there is any basis for trade union recognition. Where the request is received in the context of a consultation over the TPS, it is likely to be preferable to postpone any such discussion regarding voluntary recognition until after the TPS consultation has reached its conclusion.

Prior to any such meeting with the union, consideration should be given to seeking employee opinion on whether they feel any current form of representation is sufficient and adequately represents their views.  If not, the school should consider if there are ways to remedy this or ascertain whether staff preference is that the school look into entering into a VRA with the union. If the request for voluntary recognition has been received in the context of a TPS consultation, this could be presented to staff in the form of a survey or opportunity to feedback and reflect following the TPS consultation process and will help to gauge the level of support for voluntary recognition.

In many cases it will be preferable to maintain informal staff communication channels (such as an existing JCC or staff forum). Alternatively, staff may feel that any existing consultative committee needs adapting or, where there is no such committee, that one should be put in place, that falls short of formally recognising a particular trade union. If that is the case, this will then inevitably inform any future discussions with, or response to, the trade union over formal recognition. Staff relations should, however, be borne in mind, and if there is a majority preference for trade union recognition it may be unwise to refuse voluntary recognition, as a trade union may instead make an application for statutory recognition if they feel they have the necessary support.

Negotiating under voluntary recognition

It is not the case that every recognition agreement has to include mechanisms for collective bargaining or even for regular meetings. However, it is usual for such matters to be covered in a recognition agreement. Typically, there might be a set number of meetings each year, with arrangements agreed for time off for preparation for those meetings. There would also, typically, be provisions to allow union representatives to consult their members before any such meetings and for that time to be paid.

There is no legal requirement for reaching collective agreements simply because a negotiating mechanism has been set up. Not abiding by the negotiating mechanisms in a VRA might lead to industrial problems, but it cannot lead to legal action.

Enforceability of collective agreements

VRAs and even collective agreements are not enforceable by the parties to the agreements. They are said to be “binding in honour” only. A trade union has no right to sue an employer in its own name if a pay rise that has been agreed and recorded in a collective agreement is not honoured. However, if a term of a collective agreement is “apt for incorporation” into the contract of an individual employee, that employee can rely on that term as part of his or her own contract.

Not every term in a collective agreement will be “apt for incorporation”. Agreements about pay and holiday, for example, are likely to be incorporated, but the more collective rights (such as the right of a union representative to have a phone for the union’s use in the workplace) will not be enforceable in the same way. Matters such as redundancy selection procedures or enhanced redundancy terms are not always found to be “apt for incorporation”, but they can be. A court or tribunal will look for words of incorporation in the individual contracts and/or in the collective agreement, as part of any determination on the incorporation of a particular term.

It is always sensible, when entering into collective agreements, to identify which terms are intended to give individual employees contractual rights.

Other effects of voluntary recognition

Voluntary recognition of a trade union gives its officials and members certain rights that are not available in non-unionised workplaces. For example, if an employer chooses to recognise a trade union for collective bargaining purposes for a group of employees, that union must be consulted if collective redundancies (twenty or more) are proposed. Similarly, in the event of a TUPE transfer, if a trade union is recognised the employer must inform and (if necessary) consult with that trade union. In some situations that is helpful to employers, as it is unnecessary to facilitate the election of representatives for consultation purposes where a union is already recognised – the employer goes straight to the union.

In addition, trade union members have the right to time off (sometimes paid time off) for trade union activities or duties, subject to the terms set out in TULRCA and ACAS Guidance on how such rights should be granted in practice by employers. Rights are also granted to union learning representatives and safety representatives, again subject to conditions set out in TULRCA.

Effect of voluntary recognition on an application for statutory recognition

Another indirect effect of voluntary recognition is that it will prevent another union from applying for statutory recognition under TULRCA. A school can therefore choose one union over another, if that is sustainable industrially i.e. as long as the disgruntled members of the union that has been shut out are not willing to campaign to get rid of the voluntarily recognised union so that they can seek statutory recognition.  Alternatively, there is nothing to prohibit a school from voluntarily recognising more than one trade union if they are so minded.

Derecognition of a trade union

A VRA usually contains a notice clause. It is open to an employer to end a union’s recognition by giving the appropriate notice.

In practice, an employer can stop dealing with a union at a practical level without taking what can be the provocative step of formally derecognising it. As has been mentioned already, there is no compulsion to reach agreement on any matter just because a union is recognised. However, the rights associated with voluntary recognition, both individual and collective, will survive until the notice period has expired. That might be crucial where redundancies or a TUPE transfer are being considered. A failure to consult a union where it is still technically recognised will give rise to potentially valuable claims for the benefit of individual employees.

It is important to note that terminating a VRA does not have the effect of removing from individual employees’ contracts of employment rights that have already been incorporated from earlier collective agreements. Once a contractual term has been incorporated from a collective agreement into an individual’s contract, it has the same status as any other term in that individual’s contract and the derecognition of the union does nothing to remove it.

Formal recognition request under TULRCA

As set out above, there are two different routes to voluntary recognition.  Whilst unions will generally commence their request for voluntary recognition informally, as detailed above, it is important to be able to identify a formal request for voluntary recognition made under Schedule A1 of TULRCA.

A formal request for voluntary recognition

A formal request must be made in writing and must:

  • give the name of the union
  • identify which employees will be represented by the union when it’s recognised, sometimes known as the bargaining unit
  • state that the union is making the request under Schedule A1 of TULRCA.

The school must respond to the request within 10 working days and can:

  • agree to recognise the union voluntarily and begin collective bargaining
  • reject the request – the union may then apply for statutory recognition (see further below) or
  • refuse the initial request but agree to negotiate.

In the context of a formal request for voluntary recognition, the school has 20 working days, or longer if agreed with the union, to come to an agreement about which employees are in the bargaining unit and whether the union should be recognised for collective bargaining.

Schools should be aware that where a trade union is recognised via the statutory process under TULRCA for collective bargaining, this will give the union certain statutory rights, including in relation to pay, hours and holiday entitlement, and we would recommend that schools make themselves aware of those rights before entering into any formal agreement.

If it is not possible to reach agreement for formal voluntary recognition, the union can then apply to the Central Arbitration Committee (CAC) for statutory recognition.

Formal statutory recognition via CAC

This route under TULRCA may arise after an employer refuses to recognise the union voluntarily after a formal request (as detailed above). A trade union with a sufficiently determined membership in a workplace can oblige an employer to recognise it for collective bargaining purposes by following the complex statutory process set out in TULRCA. 

The process itself is not at all easy for a trade union and there are many ways in which an application to the CAC can fail. Ultimately, statutory recognition can be obtained by a trade union if there is a ballot of the affected employees in a properly defined bargaining unit that ends with a majority of those voting being in favour of recognition – if recognition also has the support of at least 40% of all those within the bargaining unit.

It is important, even when dealing with the statutory trade union recognition scheme briefly, as in this note, to be clear that a trade union that obtains statutory recognition only obtains limited rights to meet an employer under regulated conditions on a certain number of occasions each year. Even if a union can oblige an employer to recognise it under the statutory scheme, the employer is under no obligation to enter into agreements with that union.

Having said that, if a trade union has gone as far as to rely on the statutory procedure and has won the relevant final ballot, there are likely to be industrial reasons (i.e. reasons based on the obvious wish of the workforce to be represented by the union and to put its collective rights in the hands of the union) that might persuade an employer to take an active part in trade union discussions once statutory recognition has been obtained.

Summary

There are certain advantages for employers in a well-maintained VRA with a trade union. A good working relationship between an employer and a trade union can speed up contractual negotiations and tie in employees who might be more difficult to deal with individually. The key to a successful relationship lies in the individuals involved. Put bluntly, if the person with whom the school has to deal as a trade union representative is uncooperative, it can negate the benefits of trade union recognition.

Schools being asked to consider voluntary recognition will have to consider the person with whom they are likely to be dealing if recognition is granted. For example, a school may feel comfortable with its workplace representatives, but they can be subject to influence from external union representatives.  It is possible for a school to refuse to deal with a particularly difficult union representative, but many schools may not wish to take the risk of having to deal with an aggressive union representative.

Ultimately, however, recognising a union is not tantamount to giving away the right to run a school. Modern VRAs will spell out that management retains the right to manage, whilst also acknowledging that the duty of the union is to protect and enhance the rights of its members.

Finally, voluntarily recognising a union is not an irrevocable decision. If the relationship does not work out for a school, it is always open to it to derecognise the union if it can withstand any subsequent industrial pressure from the union and its members.

This note is only intended to be general introduction to voluntary recognition. Legal advice should always be sought if any of the issues touched on in this note arise in practice.

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About the Author
Oliver Daniels, Partner

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