As we mark a year of the Coronavirus pandemic, there is no denying that, as well as the inevitable health consequences, it has had a profound and long-lasting impact on employment. From job losses, use of the furlough scheme, wage freezes, questions over workplace safety and changing working practices, there has been a significant upheaval for employers and employees alike. Requests for trade union recognition often follow initial discussions between employers and employees over potential changes to pay and benefits or, indeed, any form of change management. Employers should therefore be aware that this type of employment disruption can create opportunities for trade unions to become involved in workplaces which previously have had no or very little union presence.
In this blog, we consider what employers should be aware of in relation to requests for union recognition.
Voluntary and compulsory recognition
“Recognition” is a process by which a union is recognised by an employer as entitled to negotiate on behalf of the workers in the recognised “bargaining unit”. This may cover the entire workforce, or just sections of it, such as workers in specific roles.
The law on recognition is complex and technical. By way of a brief summary, in the first instance a union must submit a written request for recognition to the employer. An employer can then (1) agree to recognise the union for the proposed bargaining unit; (2) reject the request for recognition; or (3) agree to negotiate with the union to try and reach a voluntary recognition agreement. Which of those options an employer goes for will depend on a number of factors, including the perceived level of support amongst members of the proposed “bargaining unit” for union recognition.
If an employer does not agree to voluntarily recognise the union (either immediately or after negotiation), the union can apply to the Central Arbitration Committee (CAC) for “statutory recognition”. If a union is successful in being awarded statutory recognition, the union will have the right to collectively bargain on behalf of the relevant “bargaining unit” in respect of pay, hours, and holidays. As things stand, statutory recognition does not include negotiation on pensions, but this point is currently being challenged, especially in the education sector.
Detriment or inducement
With union recognition on the rise, employers should be alive to the risks of subjecting any employee engaged in union activities to a detriment, or inducing any employee not to take part in union activity. This has been highlighted recently by the case of University College London (UCL) v Brown (2021) where the EAT held that an employer was not justified in taking disciplinary action against an employee for behaviour which it perceived as misconduct but in reality constituted union activity. This case is a reminder that employers should tread carefully whenever there is union activity involved.
An alternative to trade union recognition
It is always prudent for employers to keep an ear to the ground in respect of employees to get a general sense of staff mood and morale. However, given the workplace disruption caused by Coronavirus, now is also a sensible time to be alert to possible evidence of a trade union membership drive or petitions being circulated by union members among their workforce. As part of this, employers may also want to consider whether there are proactive steps they might be able to take to reduce the risk of staff seeking to become unionised.
Moreover, as employers start to consider a potential return to the workplace, it is worth noting the various mandatory and voluntary obligations to consult collectively with staff, for instance:
- The statutory requirement to collectively consult in the event of large-scale redundancies (where 20 or more dismissals are proposed within 90 days), when dismissing and reengaging for the purposes of making contractual changes, or on a TUPE transfer.
- Obligations to consult employees on the introduction of measures in the workplace which may substantially affect their health and safety, such as COVID-secure measures required in order to facilitate a return to the workplace.
- Other Covid-related matters where consultation is not required by law but may nevertheless be helpful to consult staff on, such as policies regarding testing and vaccination and future working practices.
As a result, employers may wish to consider putting in place their own internal information and consultation arrangements with employee representatives to assist when engaging employees on these matters. Such measures could also help to bridge the gap that trade unions may otherwise seek to occupy.
One option for employers is to establish a formal Information and Consultation of Employees Agreement (an “ICE Agreement”). This process involves electing representatives from across the organisation to represent staff in discussions on agreed economic and employment related matters.
An ICE Agreement could be presented to staff as an alternative to union recognition, since an ICE Agreement would:
- Allow the employer to make use of its existing arrangements for informing and consulting with its employees, such as staff and team meetings. This could allow more frequent meetings than would otherwise be conducted with the union.
- Promote a collaborative and inclusive approach to consultation, since an ICE Agreement could cover the entire workforce, as opposed to the more fragmented approach of union recognition, which often only covers sections of the workforce.
- Offer far greater flexibility in the scope and form of the consultation arrangements under the ICE Agreement. The agreement could be tailored to fit the bespoke requirements of an employer, for example, in a way which is in keeping with the employer’s strategic plans.
Employers should present staff with unbiased information about the alternatives to recognition to inform decision making but care must be taken, however, not to induce staff not to join a union and / or not to have their terms determined by collective bargaining.
For employers who have not yet received such recognition requests, it would be sensible to take proactive steps to engage with staff now. Such steps would be best taken before embarking on any change management agenda - that is, before the union takes the opportunity to engage with staff first.
For employers wishing to find out more about trade unions in the workplace, the government’s website has a guide on Working with trade unions: employers.
With special thanks to Iman Kouchouk, a current trainee in the Employment team, for helping to prepare this blog.
If you require further information about anything covered in this blog, please contact Katie Fudakowski, Lauren Bennett, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2021