Kraken Business

Recognising and de-recognising a trade union

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by

Team Kraken

in

A trade union works to protect and advance the interests of its members. One of the ways it achieves this is by negotiating with employers about the pay and conditions under which its members work.

Additional services that trade unions may offer their members include financial help, legal advice and the representation of individual members at disciplinary and grievance hearings with the employer.

Where employers have agreed to bargain with a trade union, they are said to ‘recognise’ that trade union. Where employers have ceased bargaining with a trade union, they are said to have ‘derecognised’ the trade union.

This guide explains when and how a trade union might apply to your business for recognition. It describes the procedures relating to, and the consequences of, voluntary and statutory recognition and de-recognition of a trade union. Finally, it looks at the employment rights of workers covered by bargaining arrangements and their rights when unions are seeking recognition on their behalf.

Table of Contents

Meaning and types of trade union recognition

A trade union is said to be recognised once an employer has agreed to negotiate with it on pay and working conditions on behalf of a particular group of workers.

The subsequent negotiation process is known as collective bargaining, with the group of workers the union represents referred to as the bargaining unit.

If an employer agrees to recognise a trade union the employer has certain legal obligations towards the union and its members – see the page in this guide on the consequences of trade union recognition.

Voluntary trade union recognition

The most common way a union can gain recognition for collective bargaining purposes is by the employer simply agreeing to recognise it voluntarily.

In practice this means the union becomes recognised by the employer without using any legal procedures. See the page in this guide on voluntary recognition of a trade union.

Statutory trade union recognition

If an employer and trade union find they are unable to come to a voluntary recognition agreement, a trade union can make an application for statutory recognition. This only applies where the employer, together with any associated employers, employs 21 or more workers.

See the page in this guide on statutory recognition of a trade union – starting the procedure.

Note that there can be voluntary agreements even after the union has triggered the statutory process – see the page in this guide on voluntary recognition within the statutory procedure.

Voluntary recognition of a trade union

As an employer, there is nothing to stop you from voluntarily agreeing to recognise one or more trade unions.

Most union recognition arrangements are established in this way. Such voluntary recognition provides maximum flexibility to the parties and avoids them having to use the alternative – potentially complex – statutory recognition procedures.

Once an employer recognises a union for the first time, the two parties will usually draw up an agreement which specifies how the recognition arrangement, and its associated bargaining processes, will work.

Formal written agreements of this kind – known as ‘procedural’ agreements – prevent misunderstanding and achieve continuity and consistency. As relationships develop, the parties may periodically wish to revise and update their procedural agreements.

Acas can provide impartial information on bargaining agreements. Download guidance on trade union recognition [opens in a new window].

If you voluntarily recognise a union, you will have certain legal obligations towards the union and its members. See the page in this guide on the consequences of trade union recognition.

Statutory recognition of a trade union – starting the procedure

If you find you are unable to come to a voluntary recognition agreement with the trade union, it can make an application for statutory recognition. This only applies where you – together with any associated employers – employ 21 or more workers.

The union’s request must:

  • clearly identify the union and the bargaining unit
  • state that the request is made under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992

You have ten working days to respond, starting with the first working day after the day you receive the request.

If you agree to the request, you have formally recognised the trade union for collective bargaining purposes.

If you reject the request or fail to respond in time, the union can apply to the Central Arbitration Committee (CAC) for statutory recognition – see the page in this guide on statutory recognition of a trade union – applying to the Central Arbitration Committee.

Negotiations with the union following its request

If you tell the union that you don’t accept the request but are willing to negotiate, you have 20 working days to agree on the appropriate bargaining unit and to agree on recognition.

The 20-day period starts on the day after the first ten-day period ends. You can agree with the union to extend the 20-day period.

If you fail to reach an agreement at the end of that period – or you agree on a bargaining unit but don’t agree to recognise the union – the union can apply to the CAC.

If – following negotiations between you and the union – the union’s proposed bargaining unit is modified but you fail to agree on the bargaining unit, the union must make a new request to you that complies in full with the statutory requirements before it can make an application to the CAC.

You can reach a voluntary agreement with the union even after the statutory process has started – see the page in this guide on voluntary recognition within the statutory procedure.

If you reach an agreement, the statutory procedure ends.

Approaching Acas for help

You or the union can approach Acas for help at any time.

If you propose to the union that Acas helps but the union fails to respond within ten working days or rejects your proposal, the union cannot make any application to the CAC. The ten-day period starts on the day after that on which you made your proposal.

You have to make this proposal within ten working days of informing the union that you are willing to negotiate. This period starts on the day after you so inform the union.

Statutory recognition of a trade union – applying to the Central Arbitration Committee (CAC)

A union can apply to the Central Arbitration Committee (CAC) if it sends you a request for statutory recognition but you either reject the request, or following negotiations between you and the union – ‘the parties’ – you fail to agree on the bargaining unit.

CAC panels

A panel of three CAC members will be convened to deal with each application. The panel will consist of:

  • the CAC Chairman or – more usually – one of the deputies 
  • one member with experience as a representative of employers
  • one member with experience as a representative of workers

The individuals making up the panel could change if one becomes unavailable.

A CAC official will be appointed to act as case manager for the application. They act as the main point of contact between you, the panel and the union.

Admissibility tests for union applications to the CAC 

In order for the CAC to accept an application for recognition from a trade union, it must be:

  • on the proper Schedule A1 (Part 1) application form
  • copied and sent to you, together with any supporting documents

The following conditions must also apply:

  • The union must have a certificate of independence from the Certification Office.
  • As the employer, you – together with any associated employer(s) – must employ at least 21 workers. Part-time workers count as whole numbers.Agency workers generally do not count. 
  • There must not be a competing application relating to the same or overlapping bargaining units.
  • There must not be an existing recognition agreement under which a union is entitled to conduct collective bargaining on behalf of any workers in the proposed bargaining unit.
  • At least 10 per cent of the workers in the proposed bargaining unit must belong to the union making the application.
  • The majority of workers must be likely to favour recognition. Evidence of this could be a petition from workers.
  • If the application is made by more than one union, the unions concerned must show that they will co-operate with each other to achieve stable collective bargaining arrangements.
  • There must not have been a previous application from the same union covering the same – or substantially the same – bargaining unit accepted by the CAC within the last three years.

For full details of these tests, download the guidance on statutory trade union recognition [opens in a new window].

On receiving an application, the CAC will send you:

  • notification that it has received the application
  • a questionnaire for you to fill in to give it information relating to the admissibility criteria

The CAC has ten working days to decide whether or not to accept the application.

CAC acceptance of the union’s application

If the CAC accepts a trade union’s application for statutory recognition, the parties have 20 days – which may be extended or reduced if the CAC decides there is no reasonable chance of agreement between the parties – to agree on the appropriate bargaining unit.

In these circumstances, you must provide the following information to both the CAC and the union within five working days, starting with the day after that on which you received notice of the acceptance:

  • A list of the categories of worker in the proposed bargaining unit.
  • The number of workers you reasonably believe are in each of the categories at each of the workplaces.
  • A list of the workplaces at which they work. A workplace is the set of premises a person works at/from, or – where there are no such premises – the premises with which the worker’s employment has the closest connection.

The information you give to the union and the CAC must be the same and as accurate as is reasonably practicable in light of the information you have at the time.

If you fail to supply the required information – or fail to provide it in accordance with the statutory criteria – the union can request that the CAC itself decides the bargaining unit.

If the CAC agrees that you have failed to comply with this duty, it will decide the bargaining unit – usually within ten working days starting with the day after that on which the union made the request.

Union communications with workers following the CAC’s acceptance of the application

Where the CAC accepts an application, the union may want to communicate with workers who are in the proposed or agreed bargaining unit.

To do so, the union must apply in writing to the CAC asking it to appoint a suitable independent person (SIP) to handle these communications.

The CAC will appoint the SIP as soon as possible after the union’s request and will then notify the name, and appointment date, of the appointed person to the parties.

Once the CAC appoints a SIP, you must – as soon as reasonably practicable – provide certain information to the CAC that will enable the SIP to fulfil their role.

This information is as follows:

  • The names and home addresses of the ‘relevant workers’. You must do this within ten working days, starting with the day after that on which you are informed of the name and date of appointment of the SIP. Relevant workers are either those falling within the proposed bargaining unit or – if a bargaining unit has already been agreed by the parties or decided by the CAC – those within that bargaining unit.
  • If you have given the CAC the names of workers in the proposed bargaining unit and then either you and the union agree on a different bargaining unit or the CAC decides the bargaining unit, you must give the CAC the names and home addresses of those who are now the ‘relevant workers’, ie those workers who fall within the different bargaining unit. You must do this within ten working days, starting with the day after that on which you and the union agree on the bargaining unit or the CAC informs you of its decision on the bargaining unit.
  • The name and home address of any worker who subsequently joins the bargaining unit after you supply the initial list.
  • The details of any worker who ceases to be a ‘relevant worker’ because they have left the bargaining unit – except where a new complete list is supplied because the definition of the bargaining unit changes.

If you fail to comply with these duties, the CAC may order you to remedy the failure within a set timescale.

If you fail to comply with the order, the CAC may issue a notice to you and the union confirming that you have failed to comply with the order and may also declare that the union is recognised.

Statutory recognition of a trade union – deciding on the bargaining unit

If the Central Arbitration Committee (CAC) accepts a trade union’s application for statutory recognition but you and the union – ‘the parties’ – fail to agree on the bargaining unit, the CAC panel must try to help the parties reach agreement on what the appropriate bargaining unit is.

It is important that the parties are clear as to which workers are included in the bargaining unit. This is because if – at a later stage in the process – a ballot is held, both the parties and the CAC will need to know exactly which workers are entitled to receive a ballot paper.

To reach a decision on the bargaining unit, the CAC may:

  • itself mediate between the parties
  • suggest the parties seek help from Acas
  • allow the parties – if they prefer – to conduct these negotiations between themselves directly

The CAC has a period of 20 working days (the appropriate period) in which to try to help the parties reach an agreement. The period starts with the day following that on which the CAC gives notice that it has accepted the trade union’s application – see the page in this guide on statutory recognition of a trade union – applying to the Central Arbitration Committee.

The CAC can extend the appropriate period or bring it to an end if it believes that the parties are unlikely to reach an agreement. In addition, both parties can apply to the CAC to bring the appropriate period to an early end.

Failure to agree on the appropriate bargaining unit

If the parties cannot agree on the bargaining unit or the union asks the CAC to decide on the bargaining unit as set out in the page in this guide on statutory recognition of a trade union – applying to the Central Arbitration Committee, the CAC must decide within a period of ten working days whether or not the union’s proposed bargaining unit is appropriate.

If the CAC decides that the union’s proposed bargaining unit is not appropriate, it must decide on a bargaining unit which is appropriate.

To make its decision, the CAC has to consider:

  • the location of workers
  • the views of both parties
  • existing national and local bargaining arrangements
  • the preference to avoid small, fragmented bargaining units
  • the characteristics of workers in the proposed bargaining unit and any other workers the CAC considers relevant
  • the need for the unit to be compatible with effective management – this factor takes priority over all the others

The CAC may ask you and the union for your views on these issues – eg any views you may have on an alternative bargaining unit to the one proposed by the union.

If there is conflicting evidence on whether the union’s proposed bargaining unit is appropriate, the CAC panel is likely to call a hearing to determine the question.

Where the agreed or decided bargaining unit differs from the one initially proposed

Whether a bargaining unit is agreed between the parties or is decided by the CAC, if that bargaining unit is different from the one proposed in the union’s initial application for statutory recognition, the CAC has to determine whether or not the new bargaining unit is ‘valid’.

The bargaining unit will only be valid if:

  • there is at least 10 per cent union membership in the new bargaining unit
  • a majority of workers in the new bargaining unit is likely to favour recognition
  • there is not a competing application including any workers covered by the new bargaining unit
  • there is not an existing agreement under which a union can conduct collective bargaining on behalf of any workers in the new bargaining unit
  • there has not been a previous application from the same union covering the same – or substantially the same – bargaining unit within the last three years

Following any necessary investigations, the CAC panel may call a hearing to determine the validity of the revised bargaining unit. It normally has ten working days to reach its decision.

If – as a result of changes to the bargaining unit – the application does not meet the applied validity tests, the CAC cannot proceed with the union’s application.

However, the union can re-apply for statutory recognition of this revised bargaining unit within three years.

CAC hearings

The CAC will normally arrange hearings as quickly as possible in order to meet its statutory deadlines. This may mean imposing a hearing date even if it’s not the most convenient date for either or both parties.

The CAC expects that hearings will normally be completed in a day. The CAC is based in London, but it may hold hearings at other, more convenient locations. Hearings are normally informal and held in public.

Before a hearing, the chairman of the CAC panel may hold a preliminary meeting in order to set out procedures and identify the issues disputed.

The CAC will ask the parties to submit and exchange written evidence before the hearing.

The CAC will only allow new evidence at hearings for good reasons and at the discretion of the panel. Where it is admitted, parties can request that the panel allows some additional time – such as a short adjournment – to consider the new evidence.

The CAC will ask the parties to inform the panel in advance of the names of the speakers and any witnesses proposed for the hearing. The parties may appoint legal representatives but there is no obligation to do so.

Statutory recognition of a trade union – recognition ballots

Once the Central Arbitration Committee (CAC) accepts an application and the bargaining unit has been agreed on or decided, the CAC panel has to decide whether to call a ballot on union recognition.

CAC’s decision on whether or not to hold a recognition ballot

The main test is the level of union membership in the bargaining unit. If the CAC panel is not satisfied that the majority of the workers in the bargaining unit belong to the union making the application, it has to call a ballot on union recognition.

If necessary, the CAC panel can require:

  • you to provide information concerning the workers in a bargaining unit
  • the union to provide information concerning the union members in a bargaining unit

Using this information, the CAC case manager will compile a report and send a copy to you, the panel and the union.

If either you or the union fail to supply the information required by the CAC, the report must mention that failure and this could influence the panel’s decision.

On receiving the report, the CAC will then decide whether to make a declaration of recognition or hold a ballot of workers in the bargaining unit.

Generally, if the report shows that a majority of the workers in the bargaining unit are union members, the CAC will make a declaration of recognition. If not, it will call a ballot.

However, the CAC may still call a ballot – even if there is majority union membership – if:

  • it is satisfied that holding a ballot would be in the interests of good industrial relations
  • it believes it has credible evidence from a significant number of union members in the bargaining unit that they do not want the union to conduct collective bargaining on their behalf
  • there is evidence relating to how workers joined the union or their length of membership that leads the CAC to doubt whether a significant number of union members in the bargaining unit want the union to conduct collective bargaining on their behalf

Within ten days of the parties receiving notification of the ballot from the CAC, you may – in agreement with the union – notify the CAC that you no longer wish a ballot to be held.

The form of ballot

The CAC has to decide whether the ballot should be a workplace ballot, a postal ballot or a combination of the two.

The CAC decision will depend on factors such as:

  • costs and practicality
  • the preference of the parties
  • the chance of the ballot being affected by unfairness or malpractice if it were conducted at a workplace

Conduct in the run up to and during a recognition ballot

If it decides to hold a ballot, the CAC will appoint a qualified independent person (QIP) to conduct it within 20 working days of being appointed – although the CAC has a discretion to choose a longer period.

The QIP will come from a body specified in legislation.

You must:

  • Co-operate generally with the union and QIP relating to the ballot.
  • Not make an offer to a worker or workers that induces them not to attend a relevant meeting between the union and the workers.
  • Not take or threaten to take any action against a worker because they attended or took part in a relevant meeting or they indicated their intention to do so.
  • Give the union reasonable access to the workers in the bargaining unit in accordance with the code of practice on access and unfair practices during recognition and derecognition ballots.
  • Pass names and addresses of workers in the bargaining unit to the CAC within 10 working days, starting with the day after you were told of the QIP’s name and ballot arrangements. You must also give the CAC details of any workers joining or leaving the bargaining unit.

If it is found that you have failed to comply with any of these requirements, the CAC can order you to remedy the failure within a set timescale. If you fail to remedy the failure, the CAC can issue a declaration of recognition.

During the balloting period, the union is entitled to access the workers belonging to the proposed bargaining unit. Both you and the union must not, at this time, use ‘unfair practices’ to influence the ballot result.

Unfair practices can include:

  • providing incentives for members to vote a certain way
  • threatening disciplinary action if a certain result is not achieved

Download the code of practice on access and unfair practices during recognition and derecognition ballots [opens in a new window].

Unfair practices complaints

An unfair practices complaint must be made on – or before – the first working day after the date of the ballot or – if votes can be cast on more than one day such as in a postal ballot – the last of those days.

Following a valid complaint, the CAC normally has ten working days in which to decide whether the complaint is well founded, starting with the day after it received the complaint.

If the CAC decides that the complaint is well founded, it will declare this finding and may then issue a remedial order telling the party what steps it must take in order to mitigate the effect of the unfair practice and when to take those steps by, or give notice to the parties that a secret ballot will be held – in effect ordering a new ballot.

Circumstances where a ballot may be abandoned

In some circumstances, the CAC has the power to cancel a ballot and make a declaration that the union is – or is not – recognised.

These circumstances are where the CAC:

  • declares that an unfair practice complaint is well founded and that the unfair practice consisted of – or included – the use of violence or the dismissal of a union official
  • has issued an unfair practices remedial order and the party to whom it is issued fails to comply with it
  • having issued an unfair practices remedial order to a party, makes a further declaration that a complaint that the same party used an unfair practice is well founded

If the ‘failing’ party is you, the CAC can declare the union recognised. If the failing party is the union, the CAC may declare the union not recognised.

Where it orders a fresh ballot – or declares that the union is recognised or not recognised – the CAC will:

  • Take steps to cancel the ‘original’ ballot. If that ballot is held anyway, the result will not have any effect.
  • If a fresh ballot is held, make certain changes to usual ballot procedure.

Informing the parties of the result of the recognition ballot

The CAC informs both parties of the ballot result and its consequences.

To be recognised, the union needs the support of a majority of those voting and at least 40 per cent of those entitled to vote.

If the union fails to get the necessary support, it must wait three years before making a new application involving the same – or substantially the same – bargaining unit.

Once you have recognised a union, the collective bargaining process can begin and you have certain legal obligations towards the union and its members. See the page in this guide on the consequences of trade union recognition.

Requests for costs for recognition ballots

Following the ballot, the QIP will normally send you and the union a demand for its costs.

The demand will show the gross costs of the ballot and the share of the cost to be paid by you and the union.

Both parties must pay the QIP within 15 working days, starting with the day after they receive the demand.

If you dispute the demand, you can appeal to an employment tribunal within four weeks, starting with the day after you receive the demand.

For your appeal to succeed, you must show that the gross costs of the ballot are too great or your share of the costs is too great.

Voluntary trade union recognition within the statutory procedure

If, during the statutory trade union recognition procedure, you voluntarily agree to recognise a union, it may withdraw its request for statutory recognition.

Alternatively, if the union had made an application to the Central Arbitration Committee (CAC), you and the union – ‘the parties’ – may have jointly asked the CAC to take no further action.

However, this must happen before the CAC either makes a declaration that the union is entitled to recognition without a ballot, or arranges a recognition ballot. See the page in this guide on statutory recognition of a trade union – starting the procedure.

This type of agreement is known as an agreement for recognition or a semi-voluntary agreement. It is not the same as a voluntary agreement made outside the statutory procedure.

Once an agreement for recognition has been reached, the parties must enter into negotiations on collective bargaining arrangements.

If they can’t agree on an appropriate method, either party may apply to the CAC for help. The CAC can assist if it is satisfied that there is an ‘agreement for recognition’ as defined in the legislation.

If the parties still fail to reach agreement, the CAC will impose a method for collective bargaining.

Duration of recognition

Once you have agreed to recognise a trade union for collective bargaining purposes, the union may terminate the agreement at any time, unless you have previously agreed with the union to the contrary.

You may not terminate the agreement for a period of three years unless you have agreed with the union to the contrary.

For the circumstances under which a union may become derecognised, see the page in this guide on statutory derecognition of a trade union – an introduction.

If the agreement becomes difficult to maintain, either party can apply to Acas to help it resolve the difficulties.

The consequences of trade union recognition

There are a number of consequences once a trade union becomes recognised.

Many apply regardless of whether recognition was voluntary, semi-voluntary or statutory. However, some are only relevant where a union uses the statutory procedure.

Making arrangements for the conduct of collective bargaining

Once a union has achieved recognition, either via a voluntary or the statutory procedure, you and the union – ‘the parties’ – need to agree how you will conduct collective bargaining.

Such an agreement could cover the following issues:

  • how and when meetings will be arranged
  • who the employer and union representatives are
  • time off for union representatives to attend meetings
  • how agreements and disagreements will be communicated to the workforce
  • conduct during negotiations – how and when issues can be raised
  • the specific matters which will be subject to joint agreement, eg pay and working hours
  • dispute resolution – what should happen if deadlock is reached on a particular issue, eg conciliation and arbitration

Deciding what a collective agreement will cover

Collective agreements usually cover pay arrangements and other terms and conditions of employment. They might also cover such matters as:

The procedural agreement should set out the level at which negotiations will take place, eg site, company, regional or national level.

It should also specify the bargaining methods where two or more unions are recognised, eg whether unions should bargain separately or as a single bargaining unit.

The parties usually need training on aspects of employment relations and the bargaining process. Some trade unions and independent organisations provide accredited courses.

Usually, collective agreements are not in themselves legally enforceable. However, parts of collective agreements such as pay rates, or references to agreements, may be inserted into the employment contracts of individual employees. Because individual employment contracts are legally enforceable, many collective agreements are indirectly underpinned by law.

Once the Central Arbitration Committee (CAC) declares that a union is recognised, the union is entitled to conduct collective bargaining with you on pay, hours and holidays – although the parties can agree to cover additional issues.

The parties must first agree on how they will conduct collective bargaining, calling on the services of Acas if necessary.

If no agreement is reached within 30 working days, either party has the right to apply to the CAC for assistance.

The CAC has 20 working days from the application date to help achieve an agreement. If no agreement is reached, the CAC will impose a legally binding method of bargaining.

However, the imposed method of collective bargaining can be modified by the parties, providing they both agree.

If the imposed method is not followed, either party can apply to a court to order the other party to act in accordance with the prescribed method.

If this order is ignored by the relevant party, that party will be in contempt of court, and may face a fine or imprisonment.

Where the CAC has imposed a method for carrying out collective bargaining, the union has the right to be consulted by you on your policies and plans for training workers in the bargaining unit at least once every six months.

If you fail to meet these consultation obligations, the union has three months to make a complaint to an employment tribunal. If the tribunal finds the complaint well founded, it may award up to two weeks’ pay to each affected worker.

Note that there is a statutory limit on a week’s pay. See a table of current tribunal compensation limits.

For more information on tribunal procedure in general, see our guide on employment tribunal claims – the basics.

Disclosing information to trade unions

You have a duty to disclose – if requested – relevant information to a recognised trade union during the collective bargaining process.

Acas has a code of practice on disclosure of information. The code imposes no legal obligations on you to disclose any specific item of information and failure to observe the code does not by itself mean you would be liable to legal proceedings.

However, the law requires any relevant provisions to be taken into account in proceedings before the CAC.

Download the code of practice on disclosure of information to trade unions for collective bargaining purposes [opens in a new window].

Once a union becomes recognised, you have a legal duty to:

  • allow lay union representatives to take reasonable time off with pay to perform their duties
  • allow members covered by the recognition arrangements the right to reasonable unpaid time off to carry out trade union activities
  • allow union learning representatives time off with pay to carry out their duties

For more on time-off rights for union representatives and members, see our guide on trade union membership rights.

You also have a legal duty to:

All these obligations apply regardless of whether the recognition was via the statutory or voluntary route.

Statutory de-recognition of a trade union – an introduction

If a union achieved recognition via the statutory procedure, certain procedures have to be followed for it to be derecognised.

However, you can only seek statutory derecognition three or more years after recognition was originally granted.

There are three main grounds for derecognition:

  1. you – taken with any associated employers – no longer employ 21 or more workers – see the page in this guide on statutory derecognition of a trade union owing to reduced size of workforce 
  2. the union no longer has enough support from workers in the bargaining unit, ie the group of workers the union represents  – see the page in this guide on statutory derecognition of a trade union owing to lack of support for bargaining arrangements 
  3. union membership in the bargaining unit falls below 50 per cent – see the page in this guide on statutory derecognition of a trade union owing to falling union membership in the bargaining unit 

In situations where grounds 2 or 3 apply and an application for derecognition is accepted by the Central Arbitration Committee (CAC), the CAC could declare that a derecognition ballot be held – see the page in this guide on statutory derecognition of a trade union – derecognition ballots.

Statutory de-recognition of a trade union owing to reduced size of workforce

You may seek to derecognise a trade union where you employ fewer than 21 workers – including workers with any associated employers – in any period of 13 weeks.

To do this, you must first send a notice to the union.

The notice must be copied to the Central Arbitration Committee (CAC) and:

  • identify the bargaining arrangements
  • state the date on which the notice is given
  • specify the period of 13 weeks in question
  • state that you – taken with any associated employer(s) – employed an average of fewer than 21 workers in the specified 13-week period
  • state that the bargaining arrangements are to cease to have effect on a specific date, which must fall after the end of a period of 35 working days, day one being the working day following that on which you give the notice

You must give the notice to the union before the end of the fifth working day, starting with the day after the last day of the specified period of 13 weeks.

The CAC’s decision on your notice of derecognition

When it receives your notice, the Chairman of the CAC will appoint a panel of three CAC members to consider whether or not it’s valid.

The panel has ten working days, starting with the day after that on which the CAC receives the notice, to reach a decision.

If the panel decides that your notice is not valid, it will tell you of this decision and your notice will be treated as if you had not given it. The bargaining arrangements would therefore remain in force.

If the panel decides that your notice is valid, it will tell you of this decision and the bargaining arrangements will then cease to have effect on the date specified in your notice.

The union’s challenge to the validity of your notice

The union can challenge the CAC’s decision to accept your application for derecognition on the grounds that:

  • The 13-week period specified in your notice ended before the relevant date. This is the date the three-year period, starting with the day of the CAC declaration of recognition, expires.
  • You – along with any associated employer(s) – did not employ an average of fewer than 21 workers in the 13-week period.

The union’s application must be:

  • in the proper form and supported by such documents as the CAC may have specified
  • copied to you, along with any supporting documents
  • made within ten working days, starting with the day after that on which you gave your notice

The CAC’s decision on the union’s application

The CAC has ten working days – starting with the day after that on which the CAC gave notice of acceptance of the union’s application – to reach a decision.

Once you and the union have been given the opportunity to state your views, the CAC will decide on the two issues of whether or not the 13-week period ended before the relevant date or whether you – along with any associated employers – did in fact employ fewer than 21 workers over the specified 13-week period.

If the CAC decides that either the 13-week period ended before the relevant date or you – taken with any associated employers – employed 21 or more workers in that period, your notice shall be treated as not having been given.

If the CAC decides that the 13-week period did not end before the relevant date and that you, taken with any associated employers, employed fewer than 21 workers in that period, the bargaining arrangements will cease to have effect on the ‘termination date’.

The termination date will be the date that was specified in your notice to the union or the day after the last day of the CAC’s ten-day decision period, whichever is later.

Statutory derecognition of a trade union owing to lack of support for bargaining arrangements

You can – at any time – make a request to a recognised trade union to end collective bargaining arrangements on the grounds that the union no longer has the support of the bargaining unit. The union can decline the request.

However, if the union declines a request after three years of statutory recognition, you can apply to the Central Arbitration Committee (CAC) to hold a secret ballot.

Similarly, where a worker believes that their union no longer has the support of the bargaining unit, they can apply to the CAC to hold a secret ballot – but only after three years of statutory recognition.

Your request to the union for derecognition

To be valid, your request must:

  • be in writing
  • be received by the union
  • identify the bargaining arrangements
  • state that the request is made under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 

Once the union receives your request, the union has ten working days to respond, starting with the day after the union receives your request.

If – before the end of the ten-day period – the union agrees to end the bargaining arrangement, the matter ends there.

If the union either fails to respond to your request or – before the end of the ten-day period – tells you that it doesn’t accept your request (and does not indicate a willingness to negotiate), you may apply to the CAC for the holding of a secret ballot to decide whether or not collective bargaining should end.

If – before the end of the ten-day period – the union tells you that it doesn’t accept your request but is willing to negotiate, you and the union (the parties) have 20 working days – starting with the working day immediately following the end of the ten-day period – to negotiate with a view to agreeing to end the bargaining arrangements.

During this 20-day period, the parties may request the assistance of Acas in their negotiations. The parties can agree to extend this period as required.

Your application to the CAC

If the parties fail to reach an agreement, you may apply to the CAC for the holding of a secret ballot to decide whether or not the bargaining arrangements should end.

The CAC will only accept your ballot application if:

  • it is made in the proper form
  • you have copied the application and any supporting documents to the union
  • at least 10 per cent of the workers in the bargaining unit favour derecognition
  • a majority of the workers in the bargaining unit are likely to favour derecognition
  • there hasn’t been a previous application for an end to the bargaining arrangements in the last three years

The CAC’s decision following your application

Starting with the day after that on which it receives your application, the CAC normally has ten working days in which to decide whether or not:

  • your request to the union is valid
  • you negotiated properly with the union if you were required to do so
  • your application to the CAC is admissible

If the CAC decides that you have failed to meet any or all of these requirements, it will not accept the application and the issue ends there.

If the CAC decides that you have met all of these requirements, it will accept your application and arrange for the holding of a secret ballot – see the page in this guide on statutory derecognition of a trade union – derecognition ballots.

In reaching its decision, the CAC panel may, where it considers it appropriate, convene a hearing. The parties will be invited to attend and present evidence to the panel.

A worker’s application to the CAC

Where a worker believes that their union no longer has the support of the bargaining unit, they can apply to the CAC to hold a secret ballot to determine whether or not collective bargaining arrangements should end.

A worker can only make such an application after three years of statutory recognition. However, unlike employers, they do not need to first make a request to the union (or even the employer) to end bargaining arrangements.

The CAC will only accept the worker’s ballot application if:

  • it is made in the proper form
  • they have copied the application and any supporting documents to both you and the union
  • at least 10 per cent of the workers in the bargaining unit favour derecognition
  • a majority of the workers in the bargaining unit are likely to favour derecognition
  • there hasn’t been a previous application for an end to the bargaining arrangements in the last three years

The CAC’s decision following the worker’s application

Starting with the day after that on which it receives the worker’s application, the CAC normally has ten working days in which to decide whether or not the worker’s application to the CAC is admissible.

If the CAC decides that the worker’s application is not admissible, it won’t accept the application and the issue ends there.

If the CAC decides that the worker’s application is admissible, it will accept the application. The CAC will then give notice of this acceptance decision to you, the worker and the union.

In reaching its decision, the CAC panel may, where it considers it appropriate, convene a hearing. The parties will be invited to attend and present evidence to the panel.

The consequences of the CAC accepting the worker’s application

Where the CAC accepts a worker’s application, it normally has 20 working days – starting with the day after the CAC gives notice that it has accepted the application – to help you, the union and the worker negotiate with a view to either agreeing that the worker will withdraw the application, or reaching an agreement that the parties will end the bargaining arrangements.

If – in the 20-day period – the parties agree to end the bargaining arrangements or the worker agrees to withdraw the application, the CAC will cease its considerations.

If the parties fail to reach an agreement in the 20-day period, the CAC must arrange for the holding of a secret ballot – see the page in this guide on statutory derecognition of a trade union – derecognition ballots.

Statutory de-recognition of a trade union owing to falling union membership in the bargaining unit

Sometimes, a trade union obtains statutory recognition without a ballot because more than 50 per cent of the bargaining unit were union members.

If you recognised a union under these circumstances but you believe that union membership in the bargaining unit has since fallen to below 50 per cent, you can – after at least three years of recognition – apply to the CAC to hold a secret ballot to decide whether recognition should end.

Your request to the union

Before applying to the CAC, you must make a request to the union, asking it to voluntarily end collective bargaining arrangements.

To be valid, your request must:

  • be in writing
  • be received by the union
  • identify the bargaining arrangements
  • state that fewer than half the workers in the bargaining unit are members of the union
  • state that the request is made under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992

Once the union receives your request, you and the union – ‘the parties’ – have ten working days, starting with the day after the union receives your request, to agree to end the bargaining arrangements.

During this ten-day period, the parties may request the assistance of Acas in their negotiations. The parties can agree to extend this period as required.

If – before the end of this period – the parties agree to end the bargaining arrangements, the matter ends there.

Your application to the CAC

If the parties fail to agree to end the bargaining arrangements before the end of the ten-day period, you may apply to the CAC for the holding of a secret ballot to decide whether or not collective bargaining should end.

The CAC will only accept your ballot application if:

  • it is made in the proper form
  • you have copied the application and any supporting documents to the union
  • fewer than half the workers in the bargaining unit are members of the union
  • there hasn’t been a previous application for an end to the bargaining arrangements in the last three years


The CAC’s decision following your application

Starting with the day after it receives your application, the CAC normally has ten working days to decide whether or not your request to the union is valid or your application to the CAC is admissible.

If the CAC decides that you have failed to meet either or both of these requirements, it will not accept your application and the issue ends there.

If the CAC decides that you have met both of these requirements, it will accept your application and arrange for the holding of a secret ballot – see the page in this guide on statutory derecognition of a trade union – derecognition ballots.

De-recognition of a non-independent trade union

Workers may use the statutory procedure to seek to derecognise a non-independent trade union that their employer has voluntarily recognised.

The reason for derecognition must be that the majority of workers in the bargaining unit do not support the recognition arrangements.

In this case, a worker – or workers – from the bargaining unit can apply to the Central Arbitration Committee (CAC) for derecognition.

The CAC will only accept the application if it believes that:

  • the union is not independent – ie it does not have a certificate of independence from the Certification Officer
  • at least 10 per cent of the workers in the bargaining unit favour derecognition
  • a majority of the workers in the bargaining unit are likely to favour derecognition

If the CAC accepts the application, it will try to help the employer, worker(s) and union to reach an agreement on derecognition.

If an agreement is not reached, the CAC will arrange a secret ballot – see the page in this guide on statutory derecognition of a trade union – derecognition ballots.

Statutory de-recognition of a trade union – de-recognition ballots

Following a request for statutory derecognition, the Central Arbitration Committee (CAC) may call for a secret ballot to determine whether or not collective bargaining arrangements should end.

Once the CAC has told you and the union – ‘the parties’ – in writing that there will be a ballot, the parties should negotiate and agree access arrangements for the union during the ballot period and send a copy of the access agreements to the CAC case manager.

Where necessary, the CAC may arrange a hearing on access so that it can determine an access arrangement.

The form of ballot

The CAC has to decide whether the ballot should be a workplace ballot, a postal ballot or a combination of the two.

The CAC decision will depend on factors such as:

  • costs and practicality
  • the preference of the parties
  • the chance of the ballot being affected by unfairness or malpractice if it were conducted at a workplace

Conduct in the run up to and during a recognition ballot

If it decides to hold a ballot, the CAC will appoint a qualified independent person (QIP) to conduct it within 20 working days of being appointed – although the CAC has discretion to choose a longer period.

The QIP will come from a body specified in legislation.

You must:

  • Co-operate generally with the union and QIP relating to the ballot.
  • Not make an offer to a worker or workers that induces them not attending a relevant meeting between the union and the workers.
  • Not take or threaten to take any action against a worker because they attended or took part in a relevant meeting or they indicated their intention to do so.
  • Give the union reasonable access to the workers in the bargaining unit in accordance with the code of practice on access and unfair practices during recognition and derecognition ballots.
  • Pass names and addresses of workers in the bargaining unit to the CAC within ten working days, starting with the day after you were informed of the QIP’s name and ballot arrangements. You must also give the CAC details of any workers joining or leaving the bargaining unit.

If it is found that you have failed to comply with any of the duties above, the CAC can order you to remedy the failure within a set timescale. If you fail to remedy the failure, the CAC can refuse your application for derecognition.

During the balloting period, the union is entitled to access the workers belonging to the bargaining unit. Both you and the union must not, at this time, use ‘unfair practices’ to influence the ballot result.

Examples of unfair practices include offering money to a worker to vote in a particular way and dismissing – or threatening to dismiss or take disciplinary action against – a worker for voting in the ballot.

Download the code of practice on access and unfair practices during recognition and derecognition ballots [opens in a new window].

Unfair practices complaints

An unfair practices complaint must be made on – or before – the first working day after the date of the ballot or – if votes can be cast on more than one day such as in a postal ballot – the last of those days.

Following a valid complaint, the CAC normally has ten working days in which to decide whether the complaint is well founded, starting with the day following receipt of the complaint.

If the CAC decides that the complaint is well founded, it will declare this finding and may then issue a remedial order telling the party what steps it must take in order to mitigate the effect of the unfair practice and when to take those steps by, and/or give notice to the parties that a secret ballot will be held – in effect ordering a new ballot.

Circumstances where a ballot may be abandoned

In some circumstances, the CAC has the power to cancel a ballot and:

  • if the party concerned is you, refuse your application for derecognition 
  • if the party concerned is the union, issue a declaration that collective bargaining is to end

These circumstances are where the CAC:

  • declares that both an unfair practice complaint is well founded and the unfair practice consisted of – or included – the use of violence or the dismissal of a union official
  • has issued to a party an unfair practices remedial order but the party fails to comply with it
  • having issued an unfair practices remedial order to a party, declares that a complaint that the same party used an unfair practice is well founded

If the ‘failing’ party is you, the applicant worker and/or the union may enforce obedience to the law.

Where it orders a fresh ballot, refuses your application or declares an unfair practice complaint as well founded, the CAC will:

  • Take steps to cancel the ‘original’ ballot. If that ballot is held anyway, the result will not have any effect.
  • If a fresh ballot is held, make certain changes to the usual ballot procedure.

Informing the parties of the result of the recognition ballot

The CAC will inform the parties of the ballot result and its consequences.

In order for collective bargaining arrangements to end as the result of a ballot, a majority of those voting, and at least 40 per cent of the workers in the bargaining unit, must vote in favour of ending those arrangements.

If you fail to get the necessary support, you must wait three years before making a new application involving the same – or substantially the same – bargaining unit.

If the union is derecognised as a result of the ballot, the CAC will declare that the bargaining arrangements are to cease to have effect on a specified date.

The CAC cannot accept any applications for statutory recognition from the union in respect of that bargaining unit – or one substantially the same – if the union makes the application within three years of the day after that on which the CAC issued its declaration.

Procedure where the original bargaining unit is no longer appropriate or has ceased to exist

A situation may arise when a union or employer feels that the bargaining unit – the group of workers the union represents – is no longer appropriate or has ceased to exist. Either party may apply to the Central Arbitration Committee (CAC) to determine what bargaining unit is appropriate.

In order for the CAC to reach its decision, the bargaining unit must have changed because of one or more of the following:

  • the business’ activities
  • the organisation or structure of the business
  • the number of workers in the bargaining unit

Download guidance on dealing with major change to the bargaining unit [opens in a new window]

Workers’ rights in relation to trade union recognition or de-recognition

Workers have certain rights relating to their involvement in recognition and derecognition procedures.

Protection from detrimental treatment and unfair dismissal

An employer must not subject a worker to a detriment on grounds related to the process of union recognition or derecognition, eg for taking part in a recognition ballot or for campaigning for recognition.

Detriment is broadly defined but essentially means that the worker should not suffer disadvantage on account of any act or omission by you. This could include:

  • suspending the worker
  • cutting their pay
  • moving them to new duties
  • failing to give them a pay rise

For a worker who isn’t an employee, their dismissal may also count as a detriment. Only employees can claim unfair dismissal.

If any of the above occurs, a worker could bring a claim before an employment tribunal. If the tribunal finds that you acted unlawfully, it may award compensation.

If an employee is dismissed or selected for redundancy on grounds relating to union recognition or derecognition, they may be able to make a claim for unfair dismissal to the tribunal.

Rights regarding inducements to disapply collective agreements

Many members of trade unions have their pay and other terms and conditions of employment set by a collective agreement negotiated by their union and their employer.

These members have rights to ensure that the employer does not interfere between the union member and their union in certain matters related to collective bargaining.

An employee or other worker who is a member of an independent trade union which is recognised by – or seeking recognition from – their employer for collective bargaining purposes has the right not to have certain offers made to them by their employer.

This is in circumstances where the employer’s sole or main purpose is to achieve the result that, if the offer and like offers to other workers are accepted, all or any of those workers’ terms and conditions will no longer be determined by a collective agreement negotiated by or on behalf of the trade union.

In addition, an employee has the right not to be dismissed, or selected for redundancy, by their employer on the grounds that they did not accept any such offer.

An employee or other worker has the right not to be subjected to a detriment for failing to accept any such offer.

Right of complaint to an employment tribunal

Individuals who think that any of their rights as set out above have been infringed can complain to an employment tribunal.

If an employee has been dismissed – including cases where they have been dismissed on grounds of redundancy – their complaint is one of unfair dismissal.

If an employee or other worker considers that they have been subjected to a detriment by their employer, their complaint is one of detriment.

If an employee or other worker considers that you have made an unlawful inducement as described above, their complaint is one of unlawful inducement.

Compensation

There are certain limits on the compensatory awards for the claims in relation to dismissal, detriment and unlawful inducements. See a table of current tribunal compensation limits.

Note that in cases where an employee or other worker makes a related complaint to the tribunal concerning detriment, and the tribunal upholds that complaint, the tribunal may award compensation for the detriment suffered.

In deciding the amount of such compensation, the tribunal will not take into account the fact that:

  • a complainant contributed to their loss by accepting or not accepting an unlawful inducement
  • the complainant has received or is entitled to an award on the grounds that an unlawful inducement has been made to them

Status of contractual changes resulting from unlawful inducements

If an unlawful inducement has been accepted by an employee or other worker, but any consequent agreement by them to vary their terms and conditions has not yet been effected, the agreement to vary the terms and conditions is not enforceable.

Also, in such circumstances, the employer cannot recover any cash paid or other benefits conferred on the employer or worker concerned.

However, in cases where the agreed variation in terms and conditions have been effected, those variations are enforceable.

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Every effort has been made by the author(s) to ensure this article’s accuracy but it does not constitute legal advice tailored to your circumstances. If you act on it, you acknowledge that you do so at your own risk. We cannot assume responsibility and do not accept liability for any damage or loss which may arise as a result of your reliance upon it.

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