Increased activity from teaching unions in the independent school sector

An increasing number of independent schools are facing requests for recognition by trade unions. There are several unions covering the UK’s teaching staff, with the biggest by far being the National Education Union (NEU) and the NASUWT.

A new target: the independent sector

While union activity has gained traction in the maintained sector in recent years, unions are increasingly looking to the independent sector to reinforce their profile, membership and finances. The NEU, for example, is now recognised in more than 100 independent schools. Such activity has typically been precipitated by the prospect of leaving the TPS, but also by changes to pay and conditions brought about by the coronavirus pandemic.

Requests for trade union recognition often follow initial discussions between schools and employees over potential changes to pay and benefits or, indeed, any form of change management. So, what should schools 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”. In the schools context, this bargaining unit often encompasses teaching staff. 

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 school. A school 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 a school 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 the school 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 by the major teaching unions.

Detriment or inducement

With union recognition on the rise, schools should be alive to the risks of subjecting any employee engaged in union activities to a detriment, or inducing any employee to not 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

With increased union activity in schools, it would be prudent for governing bodies and school management to be alert to evidence of a membership drive or petitions being circulated by union members among their workforce. Schools might wish to consider putting in place their own internal information and consultation arrangements with employee representatives. Such measures could help to bridge the gap that teaching unions may otherwise seek to occupy.

One option for schools is to establish a formal Information and Consultation of Employees Agreement (an “ICE Agreement”). This process involves electing representatives from across the school 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 school to make use of its existing arrangements for informing and consulting with its employees, such as staff meetings, departmental meetings and faculty 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 would likely only cover academic teaching staff.
  
  
• 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 a school in a way which is in keeping with the school’s timetable and its strategic plans.

Schools 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 schools 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.

With special thanks to Iman Kouchouk, a current trainee in the Employment team, for helping to prepare this article. 

If you require further information about anything covered in this briefing, 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