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UKEAT 0305/12; LTL 5/4/2013, Employment Appeal Tribunal - Stuart Brittenden
An employment tribunal had erred in law in concluding that an employer had recognised a trade union for collective bargaining purposes within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 s.178.
The appellant employer (W) appealed against an employment tribunal's decision that it had recognised the respondent union (P) for collective bargaining purposes.
W, which was established in 1999 or 2000, provided welfare to work services to the employment service. Some employees of W were members of P. By 2003, an agreement, entitled "Recognition Agreement between Working Links (Employment) Limited ... and the Public and Commercial Services Union ..." was in place, in which arrangements for consultation between W and P were set out and consultation on proposed changes to terms and conditions of employment was referred to. Individual contracts of employment stated that there was "a collective agreement in force" between P and W. A "Strategic Agreement" was entered into in 2006, establishing consultative forums at local and national level, their purpose being to discuss issues. P brought a claim under the Trade Union and Labour Relations (Consolidation) Act 1992 s.189 that W had failed to consult it about proposed redundancies in accordance with s.188. The tribunal found, as a preliminary issue, that W had engaged in collective bargaining and accordingly P had been recognised for those purposes within the meaning of s.178.
W submitted that (1) an employer was not to be held to have recognised a trade union unless the evidence was clear. It argued that where a recognition agreement was inferred from the actions of an employer and a union, the evidence had to be clear and unequivocal; (2) the tribunal had erred in law by associating the longevity of consultation with the issue of recognition, and it had failed to explain what matters, if any, constituted negotiations for the purpose of s.178(2).
HELD: (1) An employer was not to be held to have recognised a trade union unless the evidence was clear, and in the instant case the tribunal did not identify such clear evidence in reaching the conclusion that W had recognised P for collective bargaining purposes within the meaning of s.178. However, it could not be said that there was no such evidence before the tribunal to conclude that no tribunal properly directing itself would have reached that conclusion. (2) The fact that W had had discussions with P about various matters over a long period of time did not convert discussion into negotiation. To constitute "collective bargaining" within the meaning of s.178(1) there had to be negotiations. The reaching of a collective agreement did not necessarily result from collective bargaining: no negotiations may have been necessary, and discussion was not to be equated with negotiation, National Union of Gold, Silver and Allied Trades v Albury Brothers Ltd  I.C.R. 84 applied. Accordingly, the tribunal had erred in law in concluding that W had recognised P for collective bargaining purposes within the meaning of s.178. The matter was remitted to a differently constituted tribunal (see paras 46, 56-58 of judgment).