Working Links (Employment) Ltd v Public And Commercial Services Union

Recognition of a trade union for collective bargaining requires clear evidence of an express or implied agreement. Collective bargaining under Trade Union and Labour Relations (Consolidation) Act 1992 section 178 requires negotiations directed to reaching a bargain on a specified matter. Discussion, consultation, and a lengthy course of dealings do not by themselves amount to negotiation.

Consultation with union representatives about proposed collective redundancies does not establish recognition or collective bargaining. A union’s standing to complain under section 189 also depends on whether it was recognised for the description of affected employees, or whether the employer chose authorised employee representatives for consultation.

The employer appealed against an Employment Judge’s preliminary ruling that it had recognised the union for collective bargaining under Trade Union and Labour Relations (Consolidation) Act 1992 section 178. The ruling arose from the union’s complaint under section 189 that the employer had failed to consult it about proposed collective redundancies under section 188.

The Employment Judge relied on recognition and strategic agreements, consultation arrangements, redundancy consultations, and a long course of dealings. She concluded that there had been negotiations about union facilities, dispute resolution, and machinery for negotiation or consultation. The employer contended that the evidence showed consultation and discussion, not negotiation.

The central issue was whether the evidence established recognition for collective bargaining and, if not, what preliminary questions determined the union’s standing to bring the section 189 complaint.

1. Appeal allowed. The Employment Judge erred in concluding that the employer had recognised the union for collective bargaining purposes under Trade Union and Labour Relations (Consolidation) Act 1992 section 178.

2. Recognition is an important industrial matter and must be supported by clear evidence of an actual agreement, or of clear and distinct conduct establishing an implied mutual agreement. Collective bargaining means negotiations relating to a matter in section 178(2). Negotiation requires an attempt to strike a bargain. Discussion is not negotiation.

3. Neither a check-off arrangement nor an enquiry about desired time-off facilities established negotiations about union facilities. Nor did consultation about redundancy establish negotiations about termination, disciplinary matters, or machinery for negotiation or consultation. Consultation required or undertaken under section 188 remains consultation even if it occurs repeatedly over a substantial period.

4. The Employment Judge had not identified provisions of the Strategic Agreement, or evidence of actual negotiations, capable of establishing machinery for negotiation or consultation within section 178(2)(g). The statutory use of both terms confirms that negotiation and consultation have different meanings. A long course of dealings, without more, cannot supply the missing negotiations.

5. Recognition alone would not conclusively establish the union’s standing under section 189. The material questions were whether affected employees were of a description for which the union was recognised and, if not, whether the employer had chosen union members appointed or elected with authority to receive information and be consulted under section 188.

6. The case was remitted to a different Employment Judge to determine those preliminary issues.

• Employment Appeal Tribunal: Appeal allowed and the preliminary issues concerning standing under Trade Union and Labour Relations (Consolidation) Act 1992 sections 188 and 189 remitted to a different Employment Judge.
• Employment Tribunal: At a pre-hearing review, by a judgment sent on 4 October 2011, the Employment Judge held that the union was recognised for collective bargaining under section 178.