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Who can access the statutory recognition procedure
[ch 5: pages 141-14]Only unions with a certificate of independence from the Certification Officer can apply for statutory recognition.
Only workers are covered by the procedure, not the self-employed (see Chapter 2: Employment status).
“Worker” is defined in section 296(1), TULRCA as someone who works under a contract of employment, “or under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his”. If challenged, the burden of proving that its members are “workers” rests with the union seeking recognition. Anyone whose contract contains a genuine, unrestricted right to send a substitute to do their work is not a worker and cannot access the statutory recognition procedure. This was the result of this troubling ruling, which is currently under appeal:
In 2017, the Independent Workers of Great Britain (IWGB) union applied to the CAC for statutory recognition to represent Deliveroo cycle couriers (Riders) in Camden. The application failed because the CAC ruled that the Riders had a genuine contractual right to substitute someone else to do their work for Deliveroo. They were therefore not “workers”.
The CAC found striking evidence of “considerable and consistent levels of support” among the Riders for union recognition, maintained over a long period of opposition. Had the couriers been “workers”, said the CAC, there would have been enough evidence of support to justify a recognition ballot.
The Riders’ contractual right of substitution came about when Deliveroo modified its standard contract terms shortly before the CAC hearing. The revised contract terms introduced an unrestricted right for a Rider to appoint anyone at all to take over their work at any time by sharing their password and/or mobile device. The only exception is someone who has been banned by Deliveroo or whose behaviour is such that they would have been banned had Deliveroo known about it. The terms of the new contract place 100% of the risk relating to the substitute’s behaviour on the Rider (whose own contract can be ended at any time and for no reason). In reality, Riders are rarely likely to use a substitute because they are not obliged to accept assignments.
The CAC concluded that the substitution clause was genuine and not a sham. In particular, they heard evidence from one Rider who said he sometimes subcontracted his password to another in return for a percentage cut of the fee.
The union sought judicial review in the high court. In particular, they argued that since Article 11 of the ECHR applies to “everyone”, the statutory recognition procedure must be interpreted so as not to exclude the Riders, even though they are not obliged to perform their work personally. The high court dismissed the application, ruling that Article 11 was not engaged because the riders were not in an “employment relationship” with Deliveroo. Even if Article 11 had been engaged, said the judge, limiting the procedure to those who are obliged to perform work personally could be justified as a proportionate means of balancing competing interests. This ruling highlights once again how, under UK law, the more precarious a worker’s position, the less statutory protection the law provides. The ruling is to be appealed.
IWGB v CAC and Roofoods Limited t/a Deliveroo [2018] EWHC 3342
A trade union can only seek recognition from the employer of the workers on whose behalf they want to bargain. The IWGB union has sought to challenge this aspect of the statutory recognition procedure, on behalf of a group of outsourced agency workers, including security guards, porters and receptionists at the University of London. The union argues that it should be allowed to access the procedure to bargain with the end client that controls the workers' wages (in this case, the university). So far, the challenge has not been successful. In R (IWGB v University of London [2019] EWHC 728, the high court rejected the union's argument that limiting access to the procedure in this way is a breach of the right to freedom of association under Article 11.
Small employers (those with 21 or fewer workers) are excluded from the statutory recognition procedure.
Where a union has many members based overseas, access to the statutory recognition machinery depends on the strength of the workers’ connection to Great Britain (Netjets Management Limited v CAC and Skyshare [2012] EWHC 2685).
Normally, only one union can apply for recognition for the bargaining unit at a time. Where more than one union wants recognition, they must apply together and show they can co-operate. Otherwise both applications will be invalid.
An independent union cannot apply for statutory recognition if there is already an existing union with a recognition agreement. This is the case even if that union is not supported by most of the workers in the bargaining unit. An employer can choose to recognise another union at any time up until the CAC accepts as valid the union’s application for statutory recognition. The employer’s union of choice does not need a Certificate of Independence. Once the employer has recognised its preferred union, the other union is blocked from making a statutory claim for recognition, regardless of how much support it enjoys among the workforce.
In NUJ v CAC [2005] IRLR 28, Mirror Group Newspapers was allowed to recognise the British Association of Journalists (BAJ) for collective bargaining on pay, holidays, and hours instead of the National Union of Journalists, even though BAJ had at most one member in the bargaining unit, whereas the NUJ enjoyed considerable support. The NUJ’s recognition application failed because of the pre-existing agreement with the BAJ. The scope for an employer to escape the statutory recognition procedure by recognising a sweetheart union is one of the regime’s biggest weaknesses (see the Boots litigation, box on page 147).
Although an employer’s sweetheart union need not hold a Certificate of Independence, it must be a “trade union”, that is, an organisation consisting “wholly or mainly of workers…and whose principal purposes include the regulation of relationship between workers…and employers” (section 1(a), TULRCA). In BECTU v City Screen TUR1/309/2003, entertainment union BECTU successfully challenged a sweetheart deal on the basis that the alleged “union” was not a union at all. Cinema chain City Screen had signed an agreement with a body consisting solely of four managers with no source of funds except from the employer. The CAC ruled that this was not a trade union, so it did not block BECTU’s recognition claim.
For a body to be a trade union, its main purpose must be collective, regardless of any other individual services it offers. A body that only offers representation at internal disciplinary hearings cannot be a trade union (Akinosun (on behalf ofGeneral and Health Workers Union) v the Certification Officer [2013] UKEAT 0180/13/0507). This case also establishes that the test for whether an organisation is a trade union is based on its activities at the date of its application to the Certification Officer for a Certificate of Independence, not on any planned future activities.
If the employer has recognised a non-independent (sweetheart) union and that union has been derecognised at any point in the last three years, an application from an independent union can be accepted (TULRCA, Schedule A1: Collective Bargaining: Recognition, Para 35(1) and (4)). This part of the procedure is intended to prevent an employer re-recognising a sweetheart union that had been derecognised.