Whether an employer recognises a trade union is determined in accordance with section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The two constituent elements require, firstly, an agreement between the employer and trade union in relation to one or more of six specified matters (such as terms and conditions, and machinery for negotiation or consultation) and, secondly, “negotiations” relating to or connected with one or more of those specified matters.
If, as can be common, there is no written agreement between employer and trade union, recognition can nevertheless be implied. For recognition to be implied, there must be clear and unequivocal facts which give rise to an inference that an employer has recognised the trade union. This will normally involve conduct over a period of time. The longer this state of affairs has existed, the easier it will be to reach a conclusion that the employer has recognised the trade union.
Working links (Employment) Limited v PCSU serves as a useful reminder that mere discussion or consultation (including about collective redundancies) which takes place over time is not evidence that a trade union has been recognised. Neither discussion or consultation, in itself, demonstrates an employer is “negotiating” with a trade union, as is required to meet the second limb of the test under section 178 of the 1992 Act.
This case highlights the importance of the factual evidence where it is argued that a trade union has been recognised by implication. Employment Tribunals will be looking for evidence of actual negotiation. Documents which record that trade unions have been informed about, or discussed matters, with an employer will not serve as a pattern from which recognition will be implied where an employer is not bound to abide by any outcomes reached through the discussions held.