It’s been impossible to escape the effects of industrial action recently with staff from organisations across the UK walking out over pay, conditions and pensions. While such action is more common in the public sector, private sector employers may be left feeling concerned about the effects of the rising cost of living on real wages and whether this will spark an appetite for union recognition among workers in non-unionised workplaces. In this blog we’ provide a summary guide to the trade union recognition process and answer the question, “Can a company refuse to recognise a union in the UK?”

Union representation in the UK is far lower as a percentage across the overall workforce than in many other countries, and the union movement as a whole would like to see this change. Unions are sales organisations like any other, and, as such, will always need new memberships. Unions can, and do therefore, compete – sometimes, quite aggressively – with each other for presence, both in workforces with existing recognition agreements and workplaces where there is no recognition.

What rights do recognised trade unions have?

A union that is recognised by the employer for the purposes of collective bargaining will gain the right to collectively bargain on terms and conditions. In addition, recognition brings other important statutory consultation rights such as  around TUPE (Transfer of Undertakings Protection of Employment) transfers, collective redundancy, health and safety issues and certain changes to pension rights. Union representatives will also be entitled to time off at work when undertaking union activities.

The right for the union to participate in collective bargaining doesn’t mean that the employer has to give into its demands, however, terms which are agreed through collective bargaining will be legally incorporated into the contracts of employment of workers within the bargaining unit(s) covered by the agreement.

Voluntary recognition

Trade union recognition for collective bargaining purposes can be achieved voluntarily by the employer agreeing to recognise the union. This means the union is recognised by agreement on terms negotiated between the parties without the use of any legal procedures.

What is statutory recognition?

If an employer refuses to voluntarily recognise the trade union, provided an organisation has at least 21 workers, a trade union can invoke the statutory recognition procedure by making an application to the Central Arbitration Committee (CAC). The procedure allows a way for a union to force a business to recognise it.

How does the statutory recognition procedure start?

Before a process starts, employers may notice increased activism or become aware of petitions or meetings. The statutory recognition process must legally start with a formal request to the employer in writing, citing the legislation and specifying the proposed bargaining unit. A union will seldom make a mistake with this initial step and will be used to the process.

How does the employer respond?

The first deadline comes after 10 working days, starting with the day after the day on which the request was received. The choices are, essentially:

• Accept the request;
• Reject the request and advise the union that the organisation is not willing to negotiate – in this case employers can, as an alternative, choose not to respond at all to the union’s request; or
• reject the request, but advise the union that the employer is willing to negotiate, in which case a second negotiating period of 20 working days is triggered.

What if the employer does not agree?

If, by the end 10 days, the union has been informed that the organisation does not accept the request (and gives no indication of a willingness to negotiate) or fails to respond, the union may apply for the CAC to order recognition.

To make a valid application, the union must be able to satisfy the CAC that:

• at least 10% of the workers in the proposed bargaining unit are union members,
• the majority of workers in the bargaining unit are likely to favour recognition of the union and on this point the union will generally provide evidence to support its view and the employer can respond with its own evidence to the contrary.

The CAC will notify the parties of the application and then make a decision on whether the application is a valid one. If the CAC decides the application is not valid, it must reject it.

A business that receives a recognition application must very quickly form a view on what it believes, realistically, the level of union membership and support for recognition is (unions will often not give information to employers about exact membership figures at this stage).

Where an application is accepted for consideration by the CAC, if the bargaining unit is not agreed, the employer will be required to provide information around categories of worker and workplace sites. The CAC will support the parties in relation to discussing and determining the bargaining unit, but ultimately it can make this decision itself if no agreement is reached.

When is a ballot on union recognition needed?

Once a valid application for recognition has been accepted and the bargaining unit determined, the CAC will decide if a ballot on recognition is needed. The CAC may check the percentage of workers in the bargaining unit who are union members and if that number is below 50%, it will order that a secret ballot be conducted.

If the majority of the workers in the bargaining unit are union members, it will issue a declaration that the union is entitled to be recognised to conduct collective bargaining without a ballot, unless:

• it is satisfied a ballot should be held in the interests of good industrial relations;
• it has evidence from a significant number of union members in the bargaining unit that they do not want the union to conduct collective bargaining on their behalf;
• that evidence about the circumstances in which the members became union members or for how long they have been union members leads the CAC to doubt whether a significant number of union members want the union to conduct collective bargaining on their behalf.

If any of these conditions apply, the CAC must arrange a ballot for the workers in the bargaining unit say if they want the union to conduct collective bargaining on their behalf.

It will be for the employer to build a case as to why there should be a ballot. The kind of things an employer can point to are:

• evidence that workers favour a ballot;
• evidence suggesting the workforce does not want recognition;
• evidence from a survey of its own;
• letters or emails from workers who do not wish recognition;
• evidence relating to the way in which staff were persuaded to indicate support for recognition;
• that not having a ballot would lead to poor employee relations, especially if there has been acrimony in the run up to this stage of the process, perhaps because of some particular issue or dispute in the workplace.

Where a ballot is determined to be required by the CAC, the employer has to:

• co-operate with the union and the person or body appointed by the CAC to carry out the ballot;
• give the union reasonable access to the workers within the bargaining unit;
• give the CAC information about the workers within the bargaining unit;
• not make an offer to workers in the bargaining unit which might induce them not to attend union meetings;
• not to take or threaten action against workers because they plan to or took part in union meetings.

There is a code of practice which applies after the parties are told of the arrangements for the ballot and which sets out requirements around access to workers for the union and also what would amount to an unfair approach by the employer, in particular with a view to unfairly influencing the outcome.

What about after the ballot?

To successfully win recognition, the union has to:

• secure a majority of those workers voting, and
• win the support of not less than 40% of all those entitled to vote, being those in the bargaining unit.

If the union loses, it cannot apply again for the same bargaining unit for three years. However, if the union wins, the employer is required to recognise that union for collective bargaining purposes relating to the pay, hours and holidays.

The statutory recognition procedure has a negotiation period of 30 days and an agreement period of 20 days after the ballot, for the parties to put in place a collective agreement.

If an agreement cannot be reached, the CAC will impose recognition on standard terms, but, in which case, the agreement that is imposed will be a legally binding arrangement and can be enforced in court. This is in contrast to a voluntarily agreed collective agreement which is not generally legally binding (unless it is incorporated into individual employee contracts). A voluntary collective agreement is regarded as an honour agreement that cannot be enforced through courts. Avoiding an imposed agreement is, therefore, very important and is why some employers choose to agree voluntary recognition as a better alternative if it becomes clear the case for statutory recognition is strong.