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Trade Unions

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Trade Union Recognition

A trade union that wishes to be recognised by an employer for the purposes of conducting collective bargaining will usually seek recognition by negotiation with the employer directly. However, if agreement cannot be reached the union may seek statutory recognition by following the complex statutory procedure set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). This factsheet sets out a relatively full summary of the main points on the statutory recognition procedure, however given the complexity of this area we would recommend that you speak to your legal adviser in further detail.

The recognition procedures do not apply to organisations with 20 or fewer employees.

The procedure is as follows:

1. The trade union must make a valid request

An employer must first consider whether the trade union's request for recognition is valid. The request must be made in writing and must:

  • Be made directly to the employer;
  • Identify the union and the group of workers (referred to as the "bargaining unit");
  • State that it is made under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992; and
  • Be received by the employer.

Additionally, the union must have a certificate of independence and the employer (including any associated employer) must either employ at least 21 workers on the day the union's request is received, or it must have employed an average of at least 21 workers over the previous 13 weeks. 

2. Responding to a valid request

The employer has ten working days to respond to the union's request. The period commences the day after the employer received the request. The employer can either:

2.1        Accept the request;

2.2        Reject the request and advise the union that it is not willing to negotiate, or not respond at all to the union's request; or

2.3        Reject the request but advise the union that it is willing to negotiate.

The three options are considered below:

2.1 The employer wishes to accept the request

In the event that the employer accepts the union's proposed bargaining unit and accepts that the union is to be recognised as entitled to conduct collective bargaining on behalf of the specified unit, matters are agreed. The employer would not need to take any further action in regard to recognition of the union (although in practice the union will want to try and agree a recognition agreement).

2.2 The employer wishes to reject the request and is not willing to negotiate (or does not respond)

In the event that the employer informs the union that they have not accepted the request and indicated that they do not intend to negotiate, or the employer has not responded within ten working days of the request, the union may apply to the Central Arbitration Committee (CAC) to progress the matter. The CAC will decide whether to order the employer to recognise the union.  In so doing, the CAC will decide:

  • Whether the proposed bargaining unit is appropriate; and
  • Whether a majority of the workers in the appropriate bargaining unit support the union.

2.3 The employer wishes to reject the request but is willing to negotiate

In the event that the employer rejects the union's request but advises that it is willing to negotiate, the parties may negotiate with a view to agreeing the bargaining unit and recognising that the union is entitled to conduct collective bargaining on behalf of that unit.

The period for negotiation is specified as twenty working days, starting the day after the initial period of ten working days expired. The negotiation period can be extended by agreement between the parties.

If the parties subsequently agree both the bargaining unit and recognition of the union, no further action is required.

If the parties have failed to reach any agreement within the negotiation period, the union may apply to the CAC, who will consider whether to order the employer to recognise the union (as set out in 2.2 above).

If the negotiation period ends and the parties have agreed a bargaining unit but have not agreed that the union may be recognised in respect of it, the union may apply to the CAC to determine whether the union has the support of the majority of the workers in the bargaining unit.

2.4 ACAS

Both the employer and the union are entitled to request the assistance of Acas in order to progress negotiations. In the event that the employer informs the union that they are prepared to negotiate and request that Acas assist in the negotiations, the union is obliged to respond positively to the proposition. Should the union reject the proposal or, alternatively, if the union fails to respond to it within ten working days, it will not be permitted to make an application to the CAC.

3. Involvement of the CAC

3.1 Accepting an application for recognition

As stated above, the CAC may become involved in the process when the parties cannot reach an agreement and the union makes an application for recognition. The CAC will consider whether the bargaining unit is appropriate and whether the majority of the workers in the appropriate bargaining unit support the union. In determining this, the union must be able to satisfy the CAC that:

  • at least 10% of the workers in the proposed bargaining unit are union members; and
  • that the majority of workers in the bargaining unit are likely to favour recognition of the union.

The employer must be provided with a copy of the application form for recognition, along with any supporting documents.

First, the CAC must decide whether to accept an application. The decision should be made within ten working days, unless the CAC decides an extension is necessary. If the application is accepted, the employer will be asked to complete a response form and must do so within five working days. The CAC will then make further enquiries before deciding whether to accept the application. If the CAC concludes that a decision cannot be made based on the materials provided, it will call a hearing to determine the issue. The CAC can either dismiss or accept the application.

The CAC will dismiss the application if it concludes that the union's direct request to the employer was not valid and/or that the application is not admissible (e.g. if at least 10% of the bargaining unit are not members of the union). The parties would be informed of the decision and the CAC would take no further steps.

Alternatively, the CAC may conclude that the union's direct request to the employer was valid and that the application is admissible. In this scenario, the application would then be accepted and the parties would be notified of the decision.

3.2 Accepted applications

If the CAC accepts a union's application for recognition, the union may apply to the CAC for a suitable independent person (SIP) to be appointed. An SIP handles communications between the union and workers.

When an employer is notified of the SIP's name and date of appointment, it must provide the CAC with the names and home addresses of the workers in the bargaining unit within ten working days. If there is an alteration to the workers in the bargaining unit (either by agreement between the parties or as a result of a CAC decision) the employer must give the CAC the names and home addresses of the workers who are covered by the new bargaining unit. The employer must also provide the CAC with the name and home addresses of any worker who joins or leaves the bargaining unit as soon as is reasonably practicable. The CAC will then pass on this information to the SIP.

If the employer fails to fulfil its requirements in this regard, the CAC may issue a remedial order requiring the employer to take the steps it considers reasonable. In the event that the employer does not comply with the remedial order, the CAC will notify the employer that it has failed to do so. Both the order and the notification will advise the employer that the CAC may issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the workers in the bargaining unit as a result of the employer's failure to provide the necessary information in this regard.

Once an application has been accepted and the employer has fulfilled its duties established above, one of the following scenarios will apply:

  • The CAC will need to determine the bargaining unit, and then determine whether a majority of the workers in the bargaining unit are likely to support recognition of the union; or
  • The union and employer have agreed a bargaining unit, so the CAC need only determine whether a majority of the workers in the bargaining unit are likely to support recognition of the union.

3.3 When the bargaining unit is not agreed

In order to assist the CAC in determining the bargaining unit, the employer must provide the following information to the CAC and the union within five working days of the CAC giving notice of acceptance of the union's application for recognition:

  • A list of categories or worker in the proposed bargaining unit;
  • A list of the workplaces at which the workers in the proposed bargaining unit work;
  • The number of workers the employer reasonably believes to be in each category at each workplace.

A "workplace at which a worker works" is:

  • The premises where the worker works; or
  • The premises with which the worker's employment has the closest connection.

The CAC must help the parties agree an appropriate bargaining unit within twenty working days (starting the day after the CAC gave notice of acceptance of the application). The CAC can specify a longer period, in which case they most provide the parties with the reasons behind the extension.

If the union believes that the employer has failed to provide the above information, it may apply to the CAC to determine the bargaining unit. If the CAC agrees with the union, it will have ten working days to decide whether the bargaining unit proposed by the union is appropriate and, if it is not, decide on an appropriate bargaining unit. The CAC can specify a longer period if necessary.

Prior to its decision, the CAC will request specific comments from both parties regarding the matter to be considered. If conflicting evidence is received, the CAC may arrange a hearing to address this.

3.4 Once the bargaining unit is agreed or decided

When the bargaining unit has been determined, the CAC will consider whether it is the same as that proposed in the union's application. If it is the same, the CAC will consider whether the majority of the workers in the bargaining unit are members of the union (this point is considered below).

If the bargaining unit is different to that proposed in the union's application, the CAC will consider whether the application remains valid. The CAC have ten working days to consider the validity of the application, unless they specify a longer period. The CAC must provide reasons for any extension they consider necessary. If the CAC concludes that the application is invalid, the CAC will notify the parties of the decision and take no further steps. If the application remains valid, the application will proceed and the CAC will consider the level of support for the union in the bargaining unit.

3.5 Considering whether a majority of the workers in the bargaining unit are members of the union

If the CAC is not satisfied that the majority of the workers in the bargaining unit are members of the union, the CAC must notify the parties that it intends to arrange a secret ballot to ask the members of the bargaining unit whether they want the union to conduct collective bargaining on their behalf.

If it is satisfied that a majority of the workers in the bargaining unit are members of the union the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the bargaining unit, unless one of the following conditions apply, in which case a ballot must be held. A ballot must be held if:

  • The CAC is satisfied that a ballot should be held in the interests of good industrial relations;
  • The CAC has credible 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; or
  • The CAC does not believe that a significant number of the union members want the union to conduct collective bargaining on their behalf based on evidence relating to the circumstances in which the union members became members and the length of time they have been members.

The burden of proof will lie with the employer to show that any of the conditions above are met. In the event that one of the conditions is met, the CAC must notify the parties that it intends to arrange a secret ballot to ask the members of the bargaining unit whether they want the union to conduct collective bargaining on their behalf.

When the results of the ballot have been determined, the CAC must issue a declaration that the union is recognised as entitled to conduct collective bargaining on behalf of the workers in the bargaining unit if the union is supported by:

  • A majority of the workers voting; and
  • At least 40% of the workers in the bargaining unit.

If the above criteria are not met, the CAC must issue a declaration that the union is not entitled to be recognised.

Measures are also in place to tackle the intimidation of workers during ballots.  The rules define improper campaigning activity and unfair practices by employers and unions and clarify what reasonable access unions have to workers in the bargaining unit.  The union is permitted to communicate with workers in the bargaining unit from the point of the CAC’s acceptance of the union’s recognition application.

Consequences of recognition

Once a union is recognised, the parties will be left to agree arrangements by which they will conduct collective bargaining. The CAC will assist or intervene if no agreement can be reached.   The CAC has the power to impose a procedure where the parties fail to reach agreement and this will be legally binding.  That procedure is limited to pay, hours and holidays.  Once the CAC has imposed a procedure, the parties can vary it by written agreement.

De-recognition

Both the employer and/or the workers may apply to the CAC for de-recognition.  There are a number of different de-recognition procedures in the Act.  These are:

  • Procedures for the employer to end statutory recognition on the ground that the number of workers employed has fallen below 21.
  • Procedures for the employer or the workers to end statutory recognition on the ground that there is now only minority support for the union within the bargaining unit.
  • Procedures for the employer to end ‘automatic’ statutory recognition on the grounds that less than half of the workers in the bargaining unit now belong to the union and there is now only minority support for the union within the bargaining unit.
  • Procedures for the workers to end voluntary recognition of a non-independent union on the ground that there is only minority support for the union within the bargaining unit.

Except in the latter case, applications for de-recognition may only be accepted three or more years after the date of the CAC declaration.  In the latter case, the de-recognition procedures may be invoked at any time.  The de-recognition procedures are similar to those for recognition.

Protection against detriment and dismissal

It is unlawful for an employer to take adverse action short of dismissal against a worker on the grounds relating to recognition or de-recognition of a union.  There is also a right to claim that an employee’s dismissal is automatically unfair if it is on grounds related to recognition or de-recognition.  There is no qualifying period of employment for employees to take advantage of this provision.  In addition, any selection for redundancy on these grounds is unfair.

Guidance

The CAC has produced the following guidance and useful documentation on the statutory recognition process, which can be accessed using the link below:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/611989/Part_I_Guide_for_the_Parties__April_2017_.pdf

https://www.gov.uk/government/collections/trade-union-recognition-and-derecognition-application-and-response-forms

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.