In the UK a trade union must obtain recognition as bargaining agent from the employer.

Paragraph 35 of Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) excludes recognition when another independent trade union is already recognised as the bargaining agent “on behalf of any workers falling within the relevant bargaining unit”.

If the employer rejects the recogntion, the trade union may present its application to the Central Arbitration Committee (CAC).

In this case the Independent Workers Union of Great Britain (IWGB) tried to obtain recognition from the University of London and from Cordant Security (the outsourcing company that employed the affected workers) for its 70 members workers (out of a workforce of around 4.000 workers).

The CAC agreed with the employers’ rejection, because of the already recognised trade union Unison. In addition, it rejected that the demand should be dealt with also by the University of London, since this was not the employer but the user company.

On 26 February 2021, in the case Independent Workers Union of Great Britain v. Secretary of State for Business, Energy and Industrial Strategy and others, the Court of Appeal rejected the demand of IWGB for breach of Article 11 of the European Convention on Human Rights (freedom of assembly and association) on the basis of the law formulation and the intention of the legislator. Schedule A1 indeed refers to “the desirability of avoiding small fragmented bargaining units within an undertaking” (Paragraph 19B).

However, the judges left themselves some room for maneuver to change the case law in the future and in case of union’s greater representativeness. The judge referred to the hypotetical example of “a workforce constituting a single bargaining unit where all the non-management staff are represented by one independent trade union, recognised voluntarily by the employer; but this incumbent union loses the support of the workforce, to the extent that a majority of them join an insurgent union which then seeks recognition; the employer refuses; and because of paragraph 35 of Schedule A1 the insurgent union has no remedy. I would wish to reserve for consideration in a future case whether on those facts there would be a breach of the Article 11 rights of the insurgent union and its members. The "desirability of avoiding small, fragmented bargaining units" would not be a relevant factor”.

Such a settlement is not decisive in terms of case law and increases employers’ uncertainty for future similar situations.