Challenging the status of a non-union representative body

It is for the employer to prove that a standing representative body has the necessary authority to represent the affected employees. In Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT, a case supported by UNISON, an employer failed to satisfy the tribunal that a “joint consultative committee” made up of elected, appointed and “co-opted” workers had that authority. The EAT said the committee, a passive body whose job it was to receive and transfer information and views between the employer and employees and whose constitution prevented it carrying on negotiations, could not be an “appropriate representative body”.

The EAT said that any representative body must have the power to negotiate, because even though collective consultation need not lead to agreement, it must always be “with a view to reaching agreement” (section 188(2) TULRCA). This is “tantamount to a negotiation” (Junk v Kuhnel [2005] IRLR 310).

As long as a body has the constitutional power to negotiate, a tribunal is unlikely to investigate whether it actually exercises that power.