The statutory recognition ballot 


If the union has recruited more than half the workers in the bargaining unit, the CAC may be able to award recognition without the need for a ballot. Since the recognition laws were introduced in 2000, the CAC has declared recognition without a ballot in 78.3% of cases in which a union has claimed majority membership in the bargaining unit (source: CAC Annual Report 2014-15). 


If a secret ballot is ordered, it can either be held by post sent to the individual’s nominated address, or at the workplace, or a combination of the two. It is up to the CAC to decide. There is no provision for online voting. Regardless of the employer’s attitude to the union, they have a legal duty to co-operate generally with the union and with the ballot scrutineer, and to provide the CAC with a list of workers’ names and addresses. The CAC can order a ballot to be re-run if not all the workers entitled to vote were given the chance to do so (R (on the application of Ultraframe (UK)) v CAC [2005] IRLR 641). 


Unions must be given reasonable access to the workforce. In 2005, the Department of Trade and Industry (now BIS) introduced a Code of Practice on recognition and derecognition, Access and unfair practices during recognition and derecognition ballots. The Code is on the GOV.UK website. 


The Code gives advice to employers and unions on what arrangements should be made so that the union gets the opportunity to put its case to workers in the bargaining unit. It suggests a mass meeting lasting at least 30 minutes every 10 days of the access period and, where appropriate, for “surgeries” to be held during working hours where workers can meet with the union individually or in small groups. The union should be allowed to display material in a prominent place and where appropriate, workers should have access to information on the internet and by email. 


The Code also explains the unfair practices that are prohibited during the balloting process, which include offers of money, threats or coercion intending to influence the outcome of the ballot. In addition, it contains a guide to fair campaigning. The Code predates the rise of social media, which offers many innovative and low cost opportunities for building support for recognition, especially for “hard-to-reach” workers who are home-based (such as domiciliary care workers), or who work variable shift patterns.


The ERA 04 introduced postal voting rights to workers absent from work on the date of the ballot.


Whatever the methods agreed, the union should have the same access to the workforce as the employer. If the employer puts out a circular with arguments against recognition, the union should be allowed to circulate its arguments in favour. The cost of the ballot is shared between the union and the employer.


To win a recognition ballot, it is not enough simply to secure a majority of the votes cast (50% plus one). Instead, a union needs a vote in favour from a majority of those voting and 40% of those balloted. In effect, abstentions count as votes against the union. The average participation rate in a CAC-commissioned ballot is 76% (source: CAC Annual Report 2014-15). 


If the ballot goes in the union’s favour, or if the CAC declares that there should be recognition without a ballot because the union already has more than 50% of the workforce in membership, the employer and union must try to negotiate a collective bargaining procedure. 


Where statutory recognition is imposed by the CAC, as opposed to being voluntarily negotiated by the parties (either before or during the statutory recognition process), the union’s right to negotiate collectively is limited to pay, hours and holidays. Pensions are excluded from the definition of pay. 


The phrase “pay, hours and holidays” has a very narrow meaning. In BALPA v Jet2.Com.Ltd [2015] EWHC 1110, the High Court ruled that it covers only “core” contract terms relating specifically to pay, hours and holidays. In particular, it does not include any collective term relating to pay, hours or holidays that cannot be incorporated into the individual employment contract (see Chapter 3). In the Jet2 case, the judge ruled that pilot rostering arrangements (the shifts, hours and periods worked by pilots) did not count as pay, hours or holidays, even though they directly affected all three elements. 


Part of the explanation for this narrow interpretation is that in cases where employers and unions fail to reach agreement, the CAC imposes a cumbersome six-stage bargaining procedure, with an annual formal negotiation meeting. This framework is unsuited to bargaining on issues that require ongoing negotiation and flexibility to respond to workplace change. The parties are always free to agree something more flexible but as the Jet2 example shows, where the employer is implacably opposed to any trade union involvement at all, the bargaining framework and agenda will be very limited. 


Although a hostile employer can be forced to participate in the formal bargaining process, they cannot be forced to negotiate meaningfully. For example, in BALPA v Jet2.Com.Ltd [2015] EWHC 1110, each year before the annual pay negotiations with BALPA, the employer contacted each pilot in the bargaining unit directly, to announce the planned pay rise. The employer never moved from this pay offer and its intention throughout was to undermine the union. Nevertheless, ruled the judge, Jet2 had not breached the statutory procedure. The obligation to negotiate under the compulsory recognition procedure does not impose any obligation to come to the negotiations with a particular state of mind.