Compulsory union recognition procedures don’t extend to de facto employer

The High Court has ruled out the possibility of the University of London being compelled to recognise a union representing a group of outsourced workers performing services at its premises. Mills & Reeve (David Faulkner) represented the University in these proceedings.

The conclusion that the compulsory union recognition procedures could not be used in these circumstances was one of two related decisions made last year by the Central Arbitration Committee which the Independent Workers Union of Great Britain was seeking to overturn in judicial review proceedings.

The Union accepted that there was no direct contractual relationship between the University and the outsourced workers. They were employed by Cordant Security, a company which held a contract to provide a number of “front of house” services for the University, including security. The Union also accepted that the literal wording of the complex compulsory recognition procedures set out in the Trade Union and Labour Relations Act 1992 only allowed an application for compulsory recognition where the Union was representing workers directly engaged by the organisation in question. 

One would think that these would be insuperable obstacles to an application for recognition by the University. The Union argued however that in order to comply with Article 11 of the European Convention of Human Rights (which addresses freedom of assembly and association) it was necessary to read the legislation as extending to a situation where the organisation, although not directly employing the workers, substantially determined their terms and conditions. The Union argued that the legislation should be read accordingly or otherwise struck down as incompatible with the Convention.

The University did not in fact accept that it was in a position to determine the outsourced workers’ terms and conditions, though its agreement with Cordant did stipulate that they should be paid at least the London Living Wage. However, the judge in the High Court said that it was unnecessary to determine this factual issue. That was because, even assuming that the University was in a position to determine these workers’ terms and conditions, that still did not mean that it would involve a breach of Article 11 to deny the Union the opportunity to trigger the compulsory recognition procedures in respect of those workers.

There were a number of complex legal arguments surrounding the jurisprudence of the European Court of Human Rights on the interpretation of Article 11. Earlier domestic case law was also considered, including the Court of Appeal’s ruling in the Boots “sweetheart” union case (see our earlier posting here for more information). However, in the end, the High Court concluded that when formulating the compulsory union recognition legislation, the Government had been entitled to decide how to strike the right balance between the competing interests involved in union recognition disputes. One part of striking that balance was to deny a union the ability to use the compulsory recognition procedure against an organisation which did not employ the workers represented by that union. That did not of course prevent a union from seeking recognition on a voluntary basis in those circumstances.

In related proceedings, challenging the decision not to consider a compulsory recognition application against Cordant itself, the High Court again upheld the CAC’s conclusions. This was on the basis that the Company already recognised another independent trade union in respect of the categories of workers in question, which prevented an application from a competing union getting off the ground.

The High Court’s decisions will be reassuring to organisations adopting outsourcing arrangements, but an appeal by the Union to the Court of Appeal remains a possibility at the time of writing.