In Focus: What independent school heads need to know about trade unions

Whilst trade unions have historically been more active in the public sector, there has been a steady increase of union membership in independent schools over recent years.

The NEU states that it is recognised by over 120 independent schools, with 30,000 members in 1,700 independent schools. Increased membership and union recognition applications have been largely brought about by the prospect of schools leaving the TPS and changes to pay and conditions precipitated by the pandemic. Indeed, the high-profile ongoing strikes at GDST schools are evidence of this.

Recognition

“Recognition” is the process by which a union is formally authorised to negotiate with an employer on behalf of a particular group of employees eg all teachers (a “bargaining unit”) on matters which in general relate to terms and conditions.
The law on recognition is complex and technical. However, in brief, recognition can be voluntary or compulsory:
For voluntary recognition, a union must send a written request to the school including identifying the proposed “bargaining unit” and what the union proposes it would negotiate with the school on, on the bargaining unit’s behalf. This must be set out in a prescribed manner and comply with the statutory process. Once received, a school can:

• accept the request and the draft recognition agreement; or
• reject the request, or decline to reply; or
• negotiate over an alternative bargaining unit and/or alternative terms in the recognition agreement.

Which option a school should take depends on a number of factors, including the size and support for the union within the proposed bargaining unit and the school more widely. Schools should take legal advice as early as possible on the validity of any voluntary (or indeed compulsory) recognition request. This enables them to formulate the best strategy for engaging with the union and achieving a workable voluntary recognition agreement.
Compulsory recognition occurs when an employer does not agree to recognise a trade union voluntarily, or the terms of the voluntary agreement cannot be agreed. A trade union can apply to the Central Arbitration Committee (“CAC”) for compulsory recognition. If granted, they will have the right to collectively bargain for matters relating to pay, hours and holidays only.
In very broad terms, for the application to the CAC to be heard, the CAC must be satisfied that at least 10 per cent of staff in the proposed bargaining unit are members of the union and that the majority of those within the proposed bargaining unit are likely to support recognition.
If the application is accepted, a hearing takes place focussing on the proposed bargaining unit, with the CAC then deciding whether it is appropriate. This includes an analysis by the CAC of whether the bargaining unit is compatible with “effective management”. The CAC is not required to identify whether the proposed bargaining unit is the most effective or desirable unit possible.
If the proposal is not deemed appropriate, the CAC will decide what bargaining unit would be. This means a school cannot simply reject the bargaining unit; it has to suggest an alternative to the one proposed. This is a very strategic decision and will depend on the support for the union amongst the school’s employees.
For example, a school may propose a very large bargaining unit as an alternative if it feels the membership and support for the union is not high across the school as a whole. If the CAC agrees with this proposal, this might allow the school to then argue that the union does not have sufficient membership or support to meet the threshold referenced above.
If a union subsequently applies to the CAC for compulsory recognition for a bargaining unit which has been rejected by them within the past three years, the CAC will not hear the application.

The recognition agreement

In simple terms, recognition creates a direct relationship between the school and a union which is governed by the terms of a formal agreement called the “recognition agreement”. This sets out the matters which the union and the school will negotiate over “collectively” for those employees falling within the bargaining unit, rather than the school negotiating with those employees directly.
Whilst a recognition agreement is not legally binding, there can be a range of ramifications if an employer chooses not to follow it and seeks to negotiate directly with members of the bargaining unit, including unions balloting for strike action or various legal remedies sought by the union.

Right of union members

Trade union members have various legal protections which schools should be alive to. This includes the risks of subjecting any employee engaged in union activities to a detriment as a result of participation in union activities, or inducing any employee to not take part in union activities.
Employees also have the right not to be dismissed on union grounds. If they are, the dismissal will be automatically unfair – that is to say a school has no defence to the claim. In general terms, dismissals will be automatically unfair if the principal reason for it is that the employee:

• was or proposed to become a member of a trade union;
• had taken part, or proposed to take part, in the activities or use services of a union at an appropriate time; or
• participated in “official” strike action. The employee does not need to hold union membership, but merely be part of the bargaining unit called out on strike. It should be noted that employees are only protected for 12 weeks beginning with the day they started participating in the industrial action.

Some top tips for dealing with trade unions

For schools who already recognise a trade union:

Follow the recognition agreement: It is best practice to follow the recognition agreement including any “failure to agree” process. It may be that the positions of the school and union are too far apart, but it gives the union one less line of argument if you follow the process. Remember, it is an agreement to consult not an agreement to agree a final outcome.

If action by the union is threatened:

The law in this area is highly complicated and technical, including the strict requirements of the validity of any strike action called. It is worth seeking legal advice at an early stage if action is threatened.
It would also be sensible to monitor your communications carefully, as well as those being sent out by the union to employees (in line with your policies and procedure on monitoring). Schools should be ready to contradict any factually inaccurate claims made by the union, should they arise. Lawfully monitoring communications may also help identify defects in a technical procedural requirement.
Schools should prepare a communication strategy in the event strike action is called, including with parents. This should include what the school has done to avoid such action and the mitigation of disruption to pupil learning.

For schools who do not currently recognise a union:

Develop staff consultation bodies: For those schools who do not currently recognise a union, it would be worth considering putting in place your own internal information and consultation arrangements with employee representatives.
A staff consultation body could help to bridge the gap that unions may otherwise seek to occupy. They often allow schools to use their preexisting management arrangements, promote a more collaborative approach than union recognition and offer greater flexibility.

This article was originally published by School Management Plus, click here to read.

If you require further information about anything covered in this briefing, please contact Katie Fudakowski, Alice Yandle, 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 2022