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31 January 2019

When does an employer have to recognise a trade union?

This article was originally published by Pitmans LLP in 2015.

A trade union can firstly seek voluntary recognition from you (the employer). In order to achieve this, the union must submit a request in writing identifying the union and bargaining unit (the group of workers who are represented by the union). Furthermore, the employer must employ at least 21 workers.

You have to respond to this request within 10 working days. You can either:

  • accept the request;
  • reject the request and advise that you are not willing to negotiate; or
  • reject the request but advise that you are willing to negotiate.

Where you reject the request or cannot reach an agreement with the union, the union can apply to the Central Arbitration Committee (CAC) to be recognised. This is known as statutory recognition. The CAC is an independent body with statutory powers. Its main role is to make legally binding decisions on the recognition of unions. There are a number of validity tests that must be met for the CAC to grant recognition.

Solutions

You should be aware of the statutory recognition procedure in case the trade union chooses to go down this route. The union should apply to the CAC for recognition on an official form. A copy of this application must also be sent to you. As for a voluntary recognition application, the union and bargaining unit should be identified. There must be no competing application or existing union recognition agreement.

The CAC must be satisfied that at least 10% of the workers in the proposed bargaining unit are union members. Moreover, a majority of workers within the bargaining unit should support union recognition. If the CAC is unsatisfied, it can organise a secret ballot of the workers in the bargaining unit.

If the CAC accepts the application, it will determine whether the proposed bargaining unit is appropriate, and if not, what it should be. The CAC takes various factors into consideration for this purpose. For example, it looks at the need of the bargaining unit to be compatible with effective management, the employer and union’s opinions, the characteristics of the employees, and the location of employees.

What to do now?

You should think carefully about whether you have any appropriate reason not to recognise the union.

If you do not have a reason to reject recognition of the union outright, you can still seek to negotiate over the constitution of the bargaining unit with the union or argue this before the CAC. You can consider, for example, how many employees you believe should form part of the bargaining unit and seek to justify this.

If the statutory recognition procedure is followed, the CAC may make some orders.

These may, for example, compel you to disclose a list of workers within the proposed bargaining unit and the locations where they work. You should be prepared to comply with the CAC’s demands.

You should always take into account the possible impact on wider industrial relations in deciding whether or not to aggressively challenge a union application for recognition.

Please note that if an application for statutory recognition fails, trade unions will have to wait another 3 years to make a further application. There is no right of appeal from a CAC decision.

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