Oliver Daniels and Rachel Parkin clarify the key considerations for independent schools regarding trade unions

 

Over recent years, there’s been a significant rise in union activity in independent schools. We have seen an increase in both industrial action and requests for recognition within the sector. The education unions are particularly active in the context of staff consultations in independent schools, whether this be in relation to proposed changes to the Teachers’ Pension Scheme, or proposed redundancies or restructures given the financial pressures currently facing the sector.

The law regarding industrial action and trade union recognition is complex and many independent schools are now facing these issues, often for the first time. With this in mind, we have considered below the key questions that we receive from schools when these issues arise.

 

What is industrial action?

There’s no legal definition of industrial action. In essence, it is action taken to put pressure on an employer regarding a specific issue.

There are generally two types of industrial action:

• A strike, where there is a complete refusal to work.
• Other industrial action short of a strike, where staff work in ways which disrupt business as usual. This might include an overtime ban, go-slow, or work-to-rule.

There’s no general right to strike in the UK and in order for industrial action to be legal, it must be in furtherance of a valid trade dispute. The unions must also comply with complex balloting and notice provisions.

Balloting and notification requirements

The union must notify the school that it intends to ballot over industrial action at least seven days before the ballot opens, specifying the number of employees to be balloted. A sample ballot paper must also be provided at least three days before the ballot opens.

In addition, the following requirements must be met:

• At least 50% of those entitled to vote must take part in the ballot.
• A simple majority of those voting must have answered ‘Yes’ to the relevant question contained in the voting paper – that is, more than 50% of those who voted.
• Where more than one question was asked, each question requires a majority of those answering that question.

What happens after a ballot for strike action?

As soon as reasonably practicable after the ballot, the union must take such steps as are reasonably necessary to ensure that the school is informed of the result.

If strike action is supported, the union must provide notice of a strike or other industrial action, at least 14 days before the action is due to start.

What steps should a school take if it receives notification of intended strike action?

Where notice is given of an intention to strike, schools should undertake a risk assessment to consider:

• The health and safety implications.
• The impact on the curriculum and adjustments that may be required.
• The possible effect on the security of the school site.
• Steps that may be taken to secure replacement labour.
• Whether the school is likely to be able to remain open.

A communication to the union in response to the notification is likely to be appropriate.

It may also be appropriate to appeal to the hearts and minds of staff, by writing to them highlighting the likely effect of strike action and the steps taken to resolve the dispute. The tone of this communication is key, it should not be seen as threatening or disparaging to the unions or staff.

Schools may also wish to consider writing to parents to explain the background and the steps being taken to seek to avoid strike action. PR will be critical and, as such, schools may wish to engage PR support.

Where a ballot for industrial action is supported, trustees of charitable independent schools should submit a serious incident report to the Charity Commission, given the potential for reputational damage.

Do we have to pay striking employees?

No. If an employee takes part in a strike, strictly they are in breach of their employment contract and so are not entitled to be paid.

Schools can, therefore, withhold pay for any period during which a staff member is on strike. If staff are paid a salary, the general rule is that schools can deduct a day’s pay for a day’s strike.

 

Can we dismiss striking employees?

No. If strike action has been lawfully organised by the union, dismissal due to strike action will generally be automatically unfair.

Can we arrange cover for striking employees?

Schools are able to reallocate the duties of their own directly employed staff or directly hire temporary workers to provide cover. However, cover cannot be arranged via employment businesses or agencies.

It is a criminal offence for an agency to supply staff to cover the normal duties carried out by a striking employee.

How do requests for recognition arise in this context?

Often the possibility of union recognition is raised in connection with a potential threat of industrial action. Where there is a trade dispute, the support offered by a union can be attractive to affected staff and this might lead to discussion about the possibility of union recognition.

What is meant by recognition?

Trade union recognition is a formal agreement with an employer for a particular union to undertake collective bargaining on behalf of that employer’s staff, or a particular group of its staff, known as the bargaining unit.

Under UK employment law, there are two routes to trade union recognition. Requests for recognition can be made on a voluntary basis or via the statutory recognition process.

What is voluntary recognition?

A voluntary trade union recognition agreement is entered into by a school of its own volition. It may have felt obliged to recognise a trade union because of the potential threat of industrial action, for example, but the school has nonetheless chosen to create an arrangement under which it can talk about the terms and conditions of at least some of its employees with trade union representatives.

What is the difference between a formal and an informal request for voluntary recognition?

If a request for voluntary recognition doesn’t meet the criteria set out for a formal request, it will be an informal request. As such there is no specific procedure for responding.

In contrast a formal request for voluntary recognition must follow the process under Schedule A1 of TULRCA (Trade Union and Labour Relations (Consolidation) Act 1992).

In our experience, it is common for a trade union initially to make a request for voluntary recognition on an informal basis, before proceeding with the formal route.

What is the process for a making formal request for voluntary recognition?

A formal request for voluntary recognition must:

• Be in writing.
• Give the name of the union – and the union must have a certificate of independence.
• Identify which employees will be in the bargaining unit.
• State that the union is making the request under Schedule A1 of TULRCA.

It’s also worth noting that, to be eligible, the school must employ at least 21 workers in total, excluding any agency workers, on the day it receives the union’s request; or an average of at least 21 workers in the 13 weeks ending with that day.

What steps should a school take if it receives a formal request for voluntary recognition?

A response must be sent within 10 working days. The school can:

• Agree to recognise the union voluntarily and begin collective bargaining.
• Reject the request, in which case the union may apply for statutory recognition via the Central Arbitration Committee (CAC), see further below.
• Refuse the initial request but agree to negotiate.

In many cases, a school may not wish to enter into a voluntary recognition agreement (VRA) with a trade union. For example, it may be that the school already has a staff forum that it finds sufficient and effective for the purpose of consulting with staff.

In those circumstances, it is perfectly legitimate politely to refuse the union’s request. Having said that, it’s important to consider the views of staff and the potential risk of the union pursuing statutory recognition.

If the school refuses the initial request, but agrees to negotiate, the school has 20 working days running from the end of the initial 10 working day period, or longer if an extension can be agreed with the union, to come to an agreement about:

• Which employees are in the bargaining unit.
• Whether the union should be recognised for collective bargaining.

This type of recognition is referred to as semi-voluntary recognition.

How is voluntary recognition confirmed?

Voluntary recognition is usually confirmed by way of a VRA. This confirms the union’s recognition, the extent of the recognition, namely the bargaining unit, and the terms for collective bargaining.

In our experience, VRAs with schools tend to cover collective bargaining relating to ‘pay, hours and holiday’.

What happens if a school is unable to reach an agreement voluntarily with the union?

If it’s not possible to reach an agreement voluntarily with the union, the union can then apply to the CAC for statutory recognition.

Ultimately, statutory recognition can be obtained by a trade union if there is a ballot of the affected employees in a properly defined bargaining unit that ends with:

• A majority of those voting being in favour of recognition.
• If recognition also has the support of at least 40% of all those within the bargaining unit.

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. In these circumstances, the school will relinquish a degree of control over the terms of the recognition agreement and, ultimately, if terms cannot be agreed between the parties, the CAC can enforce terms. As such, if there is staff support for recognition, a voluntary agreement, negotiated to best reflect the school’s interests and arrangements, is generally preferable to statutory recognition.

What reforms are on the horizon?

The government’s Employment Rights Bill includes provisions aimed at strengthening trade union rights and removing “unnecessary restrictions on trade union activity”. These include:

• The repeal of legislation restricting trade union activity, which is likely to affect the notification requirements detailed above.
• A new right for unions to access workplaces to meet, represent and recruit potential members.
• Simplifying the process for obtaining statutory union recognition, including a lower threshold for securing recognition.
• A requirement to provide a worker with a written statement of his or her right to join a trade union.

It remains to be seen whether the changes set out in the Bill will result in a further increase in trade union engagement and activity within the sector. They will, however, strengthen trade union rights and make it easier for trade unions to secure statutory recognition.

Comment

As many independent schools are likely to be considering consultations regarding proposals for change, we expect a further increase in trade union activity across the sector. The forthcoming changes in this area may also serve further to embolden the unions to push for industrial action or recognition.

The law in this area is complex, and responses will often need to be strategic and tailored based on a school’s circumstances. Schools should therefore seek legal advice at an early stage if such issues arise.

 

Oliver Daniels and Rachel Parkin are education partners specialising in employment at HCR Law