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Freshfields Risk & Compliance

| 5 minutes read

Worklife 2.0: The Effective Collective – Till derecognition do us part

Since their heyday in the 1970s, union membership in the UK has been in decline. Unions have often been considered synonymous with traditional blue-collar industries or the public sector and have been portrayed as being slow to adapt to technological and social changes. 

However we are now seeing a reversal of this trend, as unions capitalise on the turbulence of the last few years and seize the opportunity to engage with a new generation of workers. Unions have started to gain footholds in industries that had previously been seen as immune to collectivism, including in the gig economy and in white-collar industries. 

This year has also been punctuated by strike action across a range of different industries. This underlines the importance of employers being alive to the growing interest in unions by employees, and to have an advance plan of how to respond to engagement from unions.

In the second of our series of blogs, we explore the drivers behind the recent surge in union activity and the key considerations for employers who may be subject to organising activity by employees.  

Why unions, why now? 

The rise in union organising and activity can be attributed to many factors, including:

  • The “great resignation” and buoyant job market, reducing the perceived risk of union activity. Armed with the knowledge that another job offering the same or better remuneration may be just down the street, employees are less reticent about publicly voicing their dissatisfaction and commencing organising more formally.
  • High inflation driving up prices globally, with wages (for the most part) failing to keep up. The visibility of public and private sector industrial action seeking to increase wages across their unionised workforces, such as the recent proposals for widespread industrial action by NHS workers, teaching staff and the rail workers, and the media attention that this action has garnered, is prompting an increased interest in unionisation. 
  • Employee dissatisfaction as a result of the COVID-19 pandemic. The isolation from colleagues and management that resulted in some sectors from public health requirements, as well as layoffs and furloughs implemented by employers to address the economic impacts of the pandemic, have changed how some employees feel about work and have resulted in more stratification between workers and management - a fertile ground for unionisation.
  • The pace of technological change in the workforce. With new technologies having the ability to fundamentally change the way tasks are performed, employees are taking steps to “future proof” their roles. Equally, technology allows employers to monitor and track work, and employees are often concerned about the overzealous use of such technologies. Employees with such concerns may look to unions to protect their interests.

So… you think your employees might want a union

Employers across all sectors should be listening closely to employee ‘rumblings’ that might indicate a request for union recognition might be in the offing. We have set out below some key points for employers in such a scenario to consider:

  • If the employer is motivated to seek to restrict or even prevent unionisation, identification of the key areas of possible employee friction or discontent will be critical. If the incentive for unionisation is purely financial, a different approach will be needed compared to a situation where employees are motivated by concerns that management may not be listening. Employers should ensure their current employee dispute resolution systems are understood and are fit for purpose, and allow for the airing of workplace concerns, before the employees look to a third party for support.  
  • Employers will consider on an ongoing basis their culture and governance and review existing policies and internal systems for escalation and reporting, so as to provide all employees with a controlled platform to raise their concerns. If they don’t exist already, employers may want to consider setting up employee representative groups and committees to provide regular feedback to management. The scope of their mandate, and whether it includes bargaining powers, will depend entirely on what has been agreed between representatives and the employer.
  • Should the employer become aware of potential union organising, management and human resources functions will need to work collaboratively to ensure a strategy is implemented at an early stage, based on the needs of the business.  Employers in the technology sector and other industries that have a strong start-up mentality may be highly apprehensive about unionisation within their business and want to take aggressive action to prevent it, whereas employers in other sectors, or with a different jurisdictional background, may be more comfortable with the potential for collective negotiations and therefore take a different stance.
  • The employer’s communications strategy will be critical, and management will typically need to be educated on how to deal with both employee organisers and union members. If a “hearts and minds” campaign is intended, it will be key to tailor the messaging to the particular employee base, to avoid the strategy landing badly and having unintended consequences. Equally, employers should be aware of the legal protections afforded to employees in relation to prospective or current trade union membership and be careful that the communications strategy does not fall foul of legal requirements.

We’ve received a request for union recognition – what now?

If the employer receives a request for recognition (i.e., where the employer, if such request is accepted, would be agreeing to undertake collective bargaining on matters such as pay, hours and holiday with that union on behalf of its employees), there will be important strategic considerations.

The potential for improved relations with any union that is voluntarily recognised and the avoidance of time consuming formal statutory recognition processes should be balanced against the potential advantages (if the strategy of the employer is to seek to restrict or even prevent unionisation) of the formal statutory recognition route (including that if a request for recognition is not successful, the union must wait another three years before reapplying).

The formal route involves the union approaching the Central Arbitration Committee (CAC) for recognition. In order for recognition to be declared, the CAC must be satisfied that at least 10 per cent. of workers in the union’s proposed “bargaining unit” (the group of workers on whose behalf the union wants to negotiate) are union members and the majority of employees in the bargaining union are likely to support union recognition. Employers may wish to refuse a request for recognition if it knows that the union will not cross these hurdles and their application will be deemed inadmissible by the CAC. An employer may alternatively reject the recognition request but offer to negotiate the terms of the recognition.

If recognition is agreed voluntarily or determined in connection with the formal statutory process, a “recognition agreement” will be drawn up as part of these negotiations. It is important to carefully consider the contents of the recognition agreement as it will guide the process of future negotiations.

An update on the Government’s union measures

As mentioned on our last blog, the Truss government floated and announced a number of measures aimed at minimising future industrial action. Of these, two proposals were included in the September Growth Plan – a requirement for trade unions to put pay offers from employers to a vote of members to “ensure that strikes can only be called once negotiations have genuinely broken down”, and legislation to introduce minimum service levels during strikes for specified transport services. A Government Bill to effect the latter proposal passed its first reading in October and there has been nothing to suggest that the Sunak government will not implement the former.

Labour on the other hand has robustly opposed recent changes and proposals by the Conservative government that weaken employee rights and has said that it will “tear up” any laws passed by the Conservative government undermining the right to strike if the party wins the next general election.

Our next two blogs in the series will look at strategic considerations when confronted with unions in an M&A context, and draw on experiences from further afield in Europe and internationally as to how best approach engagement with unions.


employment, strikes, tradeunions, employeeactivism, industrialaction