When can I refuse trade unions access to my staff?

As employee rights are slowly chipped away by successive Governments, the role of trade unions are being perceived as being more important to the UK worker than at any time since the Thatcher era. It is not a coincidence therefore that we are receiving a large increase in calls from businesses of all sizes who have never had to deal with trade unions before, but are now being caught up in requests for recognition by trade unions to create “bargaining units” within their premises.

The first point to note is that, although a number of employers throughout the UK do not officially recognise trade unions, it is often very difficult for an employer to refuse an official request for recognition should it be received.

Employers will be pleased to know however that there are a number of reasons that an application from a trade union can be rejected. The most common of these reasons are:

• They aren’t a certified independent union.
  
  
• The employer has fewer than 21 workers.
  
  
• Another trade union, who has been recognised for less than 3 years, is already representing employees of the company.
  
  
• Accepting a different trade union would create separate small “fragmented” bargaining units.

Despite the list of official reasons for objecting, it should be noted that even if you were to reject a trade union’s recognition request, it is still possible for them to appeal to the Central Arbitration Committee (“CAC”) to confirm their recognition. If this is accepted by the CAC there is very little an employer can do to stop a trade union becoming active in their workplace.

The last point in the list of reasons for rejection above is one of the most common reasons employers reject trade union recognition applications. When the latest regulations relating to trade union recognition were released in 1999, the wording was drafted carefully to assist employers from finding themselves in a position where they would be negotiating with a number of different trade unions for parts of their workforce who were essentially the same. The authors of the regulations delightfully called this “the desirability of avoiding small fragmented bargaining units”.

It was on this very topic that Lidl supermarkets recently took their fight all the way to the Court of Appeal. It was common knowledge throughout the industry, and indeed is even posted on Lidl’s website, that they do not recognise any trade unions. In early 2016, GMB Union approached Lidl with an application for recognition in respect of a portion of workers at Lidl’s Bridgend store. The workers, which equated to approximately 1.2% of Lidl’s total UK workforce, wished to be represented by GMB. However, Lidl rejected the approach citing the argument that acceptance of the same would cause fragmentation.

Following the rejection by Lidl, GMB took their case to the CAC who confirmed that they should be recognised by Lidl. Following an unsuccessful appeal by Lidl to the High Court, the matter reached the Court of Appeal. Lidl, who employ circa 18,000 staff in the UK reiterated their argument that to recognise the GMB in an application that would cover only 273 people of their entire workforce would clearly cause fragmentation and because of this they were right to reject the application. In a Judgment made public on 4 May 2017, the Court of Appeal rejected Lidl’s argument. 

Following legal action that spanned close to 1 year, the reasons provided by the Court of Appeal, were in the end, pretty straight forward. The regulations around fragmentation of bargaining units were implemented to stop situations where an employer would be required to negotiate with a number of different unions. At the time of the application, Lidl had no unions representing their workers, and hence no fragmentation was possible. GMB would be the only union that Lidl would be required to negotiate with and therefore Lidl should accept the union.

This case is a stark reminder that no matter the size of business, or your stance on union recognition, the unions are continuing to enter workplaces where they have not historically been present and are willing to fight for their right for that access.

What should you be doing now?

For those employers that have yet to have trade union requests for recognition, it may be worth making management aware of the process and procedures should an application be made or should the point be raised by an employee.

Careful consideration should be taken before accepting an application for recognition, taking into account not only legal requirements, but also employee relations should such a request be rejected.

What does this mean for you or your business?

The case above provides clarification for employers as to their legal options when approached by trade unions who wish to represent a small portion of their workers. It should be noted that this case was very fact specific.  There may be scenarios where refusing to recognise a trade union may be legally sound, however we would advise taking legal advice on the same prior to making any decision.
 
It should also be noted that workers have the right not to be subjected to any detriment (including dismissal) by their employer for trade union activities. This protection extends to an employee merely proposing the introduction of a trade union in the workplace. Employers should be especially careful on this point as employees do not require the usual 2 year qualifying service period for unfair dismissal claims.

With Brexit on the horizon, the power of trade unions will once again come under the microscope. We will update you on any further developments in this area in the future.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.