Case Number: DI/4/(2007)
6 August 2007
CENTRAL ARBITRATION COMMITTEE
TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992
SECTIONS 181-185 – DISCLOSURE OF INFORMATION
DECISION ON PRELIMINARY ISSUE OF WHETHER THE UNIONS ARE RECOGNISED FOR THE MATTERS ON WHICH THEY SEEK INFORMATION
Unite the Union, the University and College Union, and Unison
University College, London
1. Unite the Union, the University and College Union and Unison ("the Unions") submitted a complaint to the CAC dated 2 April 2007 under section 183 of the Trade Union and Labour Relations Act (Consolidation) 1992 ("TULR(C)A" or "the Act"). The complaint related to an alleged failure by University College, London ("UCL") to disclose information for the purposes of collective bargaining, specifically the following items:
a) Details of all redundancy payment schemes operated by UCL since 1 January 1997, as follows:
- The dates when the scheme operated (start date, finish date)
- The name of the person or body that authorised the scheme, and the date of that authorisation
- The description(s) of employees to whom it applied
- The number of instances in which it was used
- The total number of employees who received redundancy payments under it
- The method of calculation of the redundancy payments
- Details of any consultation with the recognised trade unions regarding implementation of the scheme, to include dates of any meetings, and the names and affiliations of those attending
b) Copies of all notifications to the Secretary of State at the DTI in relation to proposed redundancies as required under section 193 of TULR(C)A and for each, the names of all parties to whom copies of the notifications were sent.
2. In accordance with section 263 of the Act, the CAC Chairman established a Panel to consider the complaint. The Panel consisted of Professor Roy Lewis, Deputy Chairman, and, as Members, Ms L Mercer and Mr R Roberts. The Case Manager appointed to support the Panel was Simon Gouldstone.
3. As the Panel believed that there was no likelihood of the issue being resolved by conciliation, a hearing was arranged for 29 June 2007. Prior to the hearing, the parties submitted, and exchanged, copies of their written submissions. The names of those who attended the hearing are appended to this decision.
THE PRELIMINARY ISSUE
4. Section 181(1) of the Act imposes a duty of disclosure on an employer in the following terms:
An employer who recognises an independent trade union shall, for the purposes of all stages of collective bargaining about matters, and in relation to descriptions of workers, in respect of which the union is recognised by him, disclose to representatives of the union, on request, the information required by this section.
5. The parties were in dispute on, among other things, whether the Unions were recognised for the purposes of collective bargaining by UCL in respect of the principal matter on which they sought information, that is, "redundancy payment schemes operated by UCL since January 1997". At the hearing the Panel indicated that it would hear and determine this question as a discrete preliminary issue. It is only if the Panel decides the preliminary issue in favour of the Unions that it will be necessary at a later stage to determine the Unions' substantive application for information disclosure.
THE PARTIES' DOCUMENTATION
6. In the next section the Panel will make factual findings based on the parties' oral and written evidence. It is an unusual feature of this case that a significant proportion of the documentary evidence was submitted after the hearing. This came about as follows.
7. First, neither party produced much, if any, documentary evidence (as distinct from written assertion) in support of their respective positions on the preliminary issue in advance of the hearing. Given that the CAC is an evidence-based body, the Panel was surprised by this paucity of evidential material. Second, at the hearing the Unions produced University of London "Guidelines" on dealing with reductions in staffing levels, together with a covering letter. The Unions first gained possession of these documents about a week in advance of the hearing but at that stage did not see fit to disclose them to UCL. At the hearing the Panel criticised the Unions for failing to disclose these documents earlier and it repeats that criticism now. However, the Panel accepted the evidence since it appeared to be relevant to the decision it had to make. It is to be noted that the Panel gave UCL not only an adjournment during the hearing to consider the new documents but also, and in explicit terms, the opportunity to apply for an adjournment to another day in order to consider and take instruction on them, an opportunity that was in fact declined by UCL. Third, in the circumstances, it was perhaps not altogether surprising that after the hearing UCL submitted its own documentary evidence to the Panel. Fourth, this led to a further submission of documentary evidence from the Unions by way of a response.
8. In the interests of making a decision based on all the available and potentially relevant documentary evidence the Panel accepted the material produced after the hearing on condition that each party was permitted to comment in writing on the other's materials. This they did. For the sake of making a full record, the written material that the Panel considered before making its decision will now be listed.
9. Prior to the hearing, the Panel received the following documents:
a) The Unions' application form to the CAC dated 2 April 2007. Attached to the form were copies of:
(i) A letter dated 19 February 2007 from representatives of the three Unions to Sarah Brant, UCL Human Resources Director, listing the information the Unions were requesting.
(ii) A letter dated 22 February 2007 from Ms Brant to the Unions acknowledging receipt of the request.
(iii) A letter dated 14 March 2007 from Tom Reilly, UCL Assistant HR Director - Policy, rejecting the Unions' request, on various grounds, including that UCL did not recognise the Unions for the purposes of collective bargaining in respect of redundancy pay arrangements.
b) UCL's completed response form to the CAC dated 16 April 2007.
c) A letter dated 2 May 2007 from the three Unions to the CAC responding to a request from the CAC, dated 25 April 2007, that the Unions comment on, among other things, whether they were recognised by UCL for collective bargaining on redundancy pay arrangements.
d) A letter dated 15 May 2007 from Ms Brant of UCL to the CAC commenting on the Union's letter of 2 May 2007.
e) The Unions' written statement of case for the CAC hearing, dated 21 June 2007.
f) UCL's written statement of case for the CAC hearing, undated but received by the CAC on 22 June 2007. Attached to the statement were copies of:
(i) An undated circular issued by the University and College Union ("UCU") headed "Redundancy Pay."
(ii) An undated circular from the three Unions, and a blank petition document, headed "Stop the redundancy pay cuts."
(iii) An invitation to UCU representatives and members, headed "Everything you wanted to know about redundancy but were afraid to ask (HR)", to attend a meeting on 14 June 2007.
10. At the hearing, the Unions produced a copy of a letter dated 3 December 1984 from the University of London's Industrial Relations Officer addressed to all Schools and Institutes. It was headed "Reduction in Staffing Levels". Attached to the letter was a document headed "Guidelines for dealing with reductions in staffing levels", which will be referred to as "the Guidelines".
11. After the hearing, the Panel received the following additional documentation:
a) Under cover of a letter dated 3 July 2007 from Mr Reilly of UCL to the CAC, UCL supplied:
(i) UCL's current terms and conditions for Academic Staff.
(ii) UCL's current terms and conditions for Research and Support Staff.
(iii) A UCL document headed "Summary of Employment Policies, Procedures and Services for New Staff."
(iv) Sample contracts of employment for four posts, namely:
- Personnel Assistant, dated 28 January 1986
- Student Assistant, dated 21 June 1994
- Human Resources Administrator, dated 5 August 2003
- Administrative Assistant, dated 5 January 2007
(v) Six staff handbooks, namely:
- Conditions of Service for Members of Academic-Related, Administrative, Library, and Other Related Staffs (1993)
- Conditions of Service for members of Academic-Related Computer Staff (1993)
- Manual and Ancillary Staff Handbook (1999)
- Clerical and Certain Related Administrative Staff Handbook (1999)
- Technical Staff Handbook (1999)
- Academic Staff Handbook (1999)
b) A response dated 16 July 2007 from the Unions to the CAC plus the following attachments:
(i) A letter dated 3 November 1999 from UCL to a member of staff, referring to the University of London provisions for redundancy payments.
(ii) An e-mail dated 11 October 2002 from the President of the Association of University Teachers ("AUT") to members announcing a UCL initiative to employ staff on open-ended rather then fixed-term contracts.
(iii) An e-mail dated 29 January 2003 from an AUT representative to the AUT Committee reporting on consultation on the proposal to move staff to open-ended contracts.
(iv) An e-mail dated January 2003 from the Provost to senior UCL personnel reporting on various human resources issues, including the proposal to move away from the routine use of fixed-term contracts.
(v) An e-mail dated 1 July 2003 from a representative of the Contract Staff Research Group to all contract research staff referring them to an AUT web site headed "Recent Improvements to Conditions of Service" and dated 12 June 2003.
(vi) The results of an analysis of termination of employment letters sent to AUT members over the period 1999 to May 2005. According to the Unions, 57 of the 197 letters analysed contained a calculation of the amount of the individual's redundancy payment.
(vii) Sample letters of termination of employment for reasons of redundancy, namely:
- A letter dated 5 June 2002 from UCL's HR Division to a member of staff in the Department of Phonetics and Linguistics. The letter stipulated the amount of the redundancy payment and stated "the calculation of this amount is shown on the enclosed sheet."
- A letter dated 21 April 2004 from the HR Division to a member of staff in the Department of English Language and Literature. The letter stipulated the amount of the redundancy payment and stated "information on the calculation of redundancy pay is provided on the attached sheet."
- A letter dated 21 November 2002 from the HR Division to a member of staff in the Department of Immunology. The letter stipulated the amount of the redundancy payment and stated "the calculation of this amount is shown on the enclosed sheet." The sheet was provided to the CAC.
- A letter dated 21 November 2002 from the HR Division to a member of staff in the Department of Space and Climate Physics. The letter stipulated the amount of the redundancy payment and stated "the calculation of this amount is as follows: 12 years completed service = 15.5 weeks statutory redundancy x 2 x actual weekly salary."
c) A letter dated 20 July 2007 from Mr Reilly on behalf of UCL to the CAC with comments on the Union's letter to the CAC of 16 July 2007.
12. The Panel makes the following findings of fact based on the parties' written and oral submissions and their documentary evidence.
13. There is no written recognition or procedure agreement governing the relationship between UCL and the Unions. However, the Unions are each recognised by UCL for the purposes of collective bargaining in respect of "terms and conditions of employment".
14. The letter dated 3 December 1984, referred to in paragraph 10 above, was headed "Reduction in staffing Levels", and was written by the University of London's Industrial Relations Officer. It was addressed to all Schools and Institutes. Attached to the letter were the Guidelines. The covering letter informed the recipients of the following matters:
(1) Severance provisions financed by the University Grants Committee ("UGC") would no longer be available after 30 September 1984.
(2) The Committee for Non-teaching staffs had recommended that Guidelines previously approved by the Collegiate Council of London University should be reinstated with an amendment to the formula for calculating severance payments.
(3) The Guidelines with the amended formula had been approved by the Collegiate Council on 22 October 1984.
(4) At a meeting of the Joint Central Liaison Committee, which the Panel takes to be a joint University-wide body involving the recognised trade unions, the trade unions had indicated that they did not agree with the amended formula.
15. Paragraph 1 of the Guidelines stated their purpose as "establishing a consensus between Schools on general procedures to be used where it is necessary to reduce staff numbers". Paragraph 2 of the Guidelines specified the scope of application of the Guidelines. They applied to all staff between the ages of 18 and normal retiring age, with the exception of those on fixed term contracts, temporary employees, and part-time employees contracted to work for less than 16 hours per week or less than 8 hours if continuously employed for five years or more. The Guidelines advised employers to consult with individuals and the unions before implementing staff reduction measures, that is, natural wastage, redeployment and "severance, with payments more beneficial than the statutory entitlements" (paragraph 4(d)).
16. Paragraph 8 of the Guidelines headed "Severance Scheme" opened with the words: "Employers are advised to make available the discretionary benefits set out in sub-paragraph 8.1 or, alternatively 8.2 below, but not both." Paragraph 8.1 headed "Early Retirement" referred to certain pension schemes including the Universities Superannuation Scheme (USS), which at the time was the pension scheme applicable to academic and academic-related staff, and to the Superannuation Arrangement of the University of London (SAUL), which applied to other staff. Paragraph 8.2 headed "Severance" was the one with the formula amended by the Collegiate Council. It provided:
In substitution for the discretionary benefit referred to in sub-paragraph 8.1 above, and subject to the provisions of paragraphs 9-13 below, employers are advised to make payments to redundant employees in accordance with the following formula:
Two weeks' pay for each year of service completed below the age of 41 and three weeks' pay for each year of service completed at age 41 and above.
NB The intention is that the statutory method of calculation should so far as possible be used, but without the statutory restriction on years of service or a week's pay.
17. As regards paragraphs 9-13 only paragraphs 9 and 12 are material for present purposes. Paragraph 9 made it clear that the enhanced redundancy pay was to be offered and accepted on the basis that it was in complete satisfaction of any entitlement to statutory redundancy pay. Paragraph 12 provided as follows:
This scheme will be reviewed should any further national scheme be recommended for dealing with reductions in staffing levels. In cases where individual staff have already accepted a settlement under this scheme and any subsequent national scheme offers better terms, their level of compensation will be correspondingly improved, but if any subsequent national scheme has less favourable terms, staff who have already accepted a settlement under this scheme will not be adversely affected.
18. In summary, the Guidelines provided for twice the statutory redundancy payment, but with no restriction on the number of years' service or any statutory ceiling on the amount of a week's pay. The arrangements were subject to review in the event of an introduction of any later national scheme, but not in a way to prejudice the rights of individuals who had accepted settlements under the Guidelines.
19. In the light of the references in paragraph 8.1 to the relevant pensions schemes, it is clear that the Guidelines were intended to apply to both academic and academic-related staff and to non-academic staff. In view of the way that the covering letter described the cessation of the UGC initiative, it is also clear that the Guidelines were intended to apply in particular to permanent staff whose posts were financed through core funding provided at the time by the UGC.
20. The extent to which academic staff potentially fell within the scope of the Guidelines may have increased as a result of the Education Reform Act 1988. Insofar as academic staff at UCL had previously enjoyed "tenure", that is, could not have been dismissed by reason of redundancy, the Act permitted dismissal by reason of redundancy for all academic staff appointed or promoted after 20 November 1987.
21. At the hearing Mr Reilly, on behalf of UCL, conceded that in practice UCL would have applied the University of London Guidelines to some groups of staff. This concession was significant, although it was fairly general since it did not identify the particular groups of staff or the time period within which the Guidelines were applied. It is also to be noted that the Unions made their own fairly general point that the Guidelines were part of the collective memory of the representatives of the recognised unions. However, with the assistance of an important piece of documentary evidence, the Panel is able to be more precise. On the basis of this evidence it is reasonably clear that, insofar as there were relevant redundancies, UCL applied the Guidelines to core-funded permanent staff whose posts were financed by the UGC and later by the Higher Education Funding Council (England) ("HEFCE"), the successor body to the UGC. This applied during the period from the end of 1984 to 2002, which both pre- and post-dated UCL's partial demerger from the University of London in or around the early 1990s.
22. At some point in the 1990s and certainly by the late 1990s UCL began to apply certain of the principles of the Guidelines, albeit in modified form, to contract research staff whose posts were not core funded but depended on external grants of one sort or another and at the time were typically fixed term. In the first place, such staff at UCL were not required to sign waiver clauses in respect of redundancy pay. They were thus potentially eligible for statutory redundancy pay. However, the documentary evidence suggests that in practice UCL enhanced such pay by not applying the statutory ceiling on weekly earnings. That principle in itself reflected the University of London Guidelines, although the extent to which the removal of the ceiling may have been dependent on continuous length of service is not entirely clear to the Panel. However, it is clear that, with effect from 3 November 1999, grant-funded research staff with service of 10 years or more were eligible to receive 1.5 times the statutory redundancy pay without the imposition of the statutory earnings cap.
23. Given that this is a case that ultimately turns on the relevant evidence as well as the law, it is necessary to state the evidential sources for the previous two paragraphs. First, clause 2.18 of an academic staff handbook issued by UCL in 1999 made it clear that contract research staff were not required to agree to clauses waiving rights to redundancy and unfair dismissal. The same clause referred to statutory redundancy pay, but it did not expressly deal with what UCL in practice paid or might pay in the event of redundancy insofar as that was different or better than statutory redundancy pay.
24. Second, there was a letter dated 3 November 1999 from Anne Wilson, Senior Personnel Officer, to a long-service contract researcher who had been made redundant. The relevant passage of the letter was as follows:
You are also eligible for a statutory redundancy payment (SRP) and I have now been given approval from Finance to increase this sum by the removal of the ceiling on the weekly earning used in the calculation.
At our meeting Jenny raised the question of a University of London provision for the doubling-up of the redundancy payment. Again, I have checked with my senior colleagues who confirm that this provision is only payable to permanent HEFCE funded staff, and will not therefore be payable in your case. However, the delay in the Finance Division's response to my request, was due to a proposal being put forward and agreed (this very morning), that from now on grant funded staff who have been in service for 10 years or more may receive one and a half times the SRP with the ceiling removed.
25. In 2002 enhanced redundancy pay was subject to further changes, which primarily benefited longer term contract research staff. Specifically, the amended scheme was as follows. For those with 2-5 years' service, statutory redundancy pay applied; for those with 5 and up to 10 years' service, the statutory ceiling on the calculation of earnings was removed and the calculation was thus based on full weekly pay. For those with 10 years' service or more, the total number of weeks' pay due was doubled and there was no statutory ceiling on a week's pay. The maximum number of years' service was to be 20. As for the implications of these changes for permanent core-funded staff, it appears that the same amended scheme was applied to them,
26. In addition to the oral submissions of the parties, the evidential source for the previous paragraph is two-fold. First, there was the AUT web site setting out changes to the severance pay scheme for contract researchers (see paragraph 11(b)(v)above). Second, there were two letters from UCL's HR Division to redundant contract researchers that attached or otherwise disclosed a clear basis of calculating severance pay in accordance with the 2002 amendments. Attached to a letter of 21 November 2002 was a redundancy calculation based on 7 years' service x actual uncapped pay, which corresponded with the position as stated in the previous paragraph for a researcher with between 5-10 years' salary. It is to be noted that the bottom section of the calculation sheet contained a restatement of the entitlement to statutory redundancy pay, but that was not what was in fact paid due to the removal of the statutory ceiling on a weeks pay. A further letter dated 21 November 2002 disclosed a calculation of 12 years' service = 15.5 weeks' statutory redundancy pay x 2 x actual weekly salary, which corresponded with the position as stated in the previous paragraph for a contract researcher with 10 or more years' service.
27. As far as UCL was concerned, the 2002 changes were prompted by its need to respond to the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 by harmonising arrangements between fixed term appointees and others. This coincided with the aim of the Unions, especially the AUT, of improving the position of contract research staff. The 2002 changes followed a consultation exercise with the Unions. This exercise did not result in a formal collective agreement. On the other hand, the Unions were in agreement with and supported the amendment of the scheme. It would be fair to say that the terms of the amended scheme were a product at least in part of UCL's dialogue with the Unions.
28. Further modifications were made to the scheme in 2006 and 2007. In 2006 UCL considered that it had to respond to the Employment Equality (Age) Regulations 2006. Neither party made clear to the Panel the precise nature of the 2006 change, although it was obviously to do with the calculation of enhanced redundancy pay. The 2006 change was on UCL's own admission effected by UCL without prior communication with the Unions. When the Unions became aware of the change, they organised a campaign to protest against it, as was clear from the materials attached to UCL's statement of case submitted to the Panel in advance of the hearing. A further change was effected in 2007, which introduced an improved enhanced payment to staff with over 10 years' of service by adding a supplement based on a proportion of salary.
29. It is to be noted that there is no express reference to redundancy payments or indeed to redundancy in UCL's current documents specifying the standard conditions for academic and non-academic staff respectively or in the Summary of HR Policies to which these documents refer. Nor was there any mention of redundancy pay or redundancy in the selection of employment contracts from 1986-2007 produced by UCL. As noted above, UCL's 1999 academic staff handbook referred to statutory redundancy pay in respect of contract research staff.
SUMMARY OF THE UNIONS' MAIN SUBMISSIONS
30. At the hearing the Unions made the following points:
(1) Although there was no written recognition or procedure agreement, it was common ground with UCL that the Unions were recognised for collective bargaining on terms and conditions of employment. Furthermore, there was no document or public statement that restricted the list of issues that fell within the definition of terms and conditions of employment.
(2) The Guidelines, in particular the provision of enhanced severance pay, were part and parcel of the collective memory of the recognised trade unions, even though those who made the Unions' application to the CAC had not seen the source documents until a week before the hearing.
(3) The Guidelines in effect constituted an agreement between the University of London and the recognised unions. The covering letter mentioned the Joint Central Liaison Committee, which was a university-wide negotiating body. Following UCL's partial de-merger from London University in the early 1990s, a local negotiating committee had replaced the former central committee.
(4) Alternatively, even in the absence of an agreement with the unions as such, the Guidelines described a permanent arrangement under which staff would receive enhanced redundancy payments and that arrangement had never been formally rescinded.
(5) The language of the Guidelines was consistent with it being the basis of a contractual entitlement to enhanced severance pay.
(6) The entitlement had been incorporated into the individual employment contracts of UCL's staff by custom and practice. It thus fell within the notion of terms and conditions of employment.
(7) It was only in recent times that UCL had suggested that enhanced redundancy pay was a matter for its discretion rather than an item falling within terms and condition of employment.
(8) UCL's position was contradictory. UCL had acted over many years as though there was a permanent arrangement in place, which had been subject to periodic change normally after consultation with the Unions. For example, in 2002 the Unions were consulted and had supported a UCL initiative to extend the arrangements to formerly-excluded fixed-term contract staff. Further, in 2007 UCL agreed to add a supplement of one third of salary for those with over 10 years' service following a campaign by the Unions.
31. The Unions' letter of 16 July 2007, to which the documents listed in paragraph 11(b) above were attached, made the following additional points:
(1) It could be said that the absence of references to enhanced redundancy pay in the contractual documentation was indicative of the fact that UCL was unwilling to publicise a contractual right. It could equally be said that the fact that only one handbook contained a reference to statutory redundancy pay in respect of contract research staff supported the proposition that different arrangements could be implied for other groups of staff. Ultimately, however, the fact that the standard conditions, employment contracts and staff handbooks omitted to mention redundancy pay was not a decisive indicator one way or the other.
(2) If the contractual right had previously existed, no inference could be drawn that it had ceased to exist by virtue of its omission from the contractual documentation.
(3) The letter of 3 November 1999 showed that the University of London Guidelines were still in operation at that date.
(4) The evidence concerning the 2002 changes supported the Unions' case in that the redundancy pay arrangements, as amended, were based on the 1984 Guidelines, were well known and were consistently applied.
SUMMARY OF UCL'S MAIN SUBMISSIONS
32. At the hearing UCL made the following points:
(1) The 1984 Guidelines did not constitute a collective agreement between UCL and the Unions. They were literally advisory guidelines and contained no provision that could be construed as creating a legal obligation on UCL. Moreover, there was no indication in the Guidelines themselves that its provisions were intended to be incorporated into the contracts of employment of staff.
(2) Enhanced redundancy pay was not mentioned in any of the documentation dealing with terms and conditions of employment, save for a reference in the academic staff handbook to statutory redundancy being applicable to contract research staff. It was not therefore possible to argue that the Guidelines had been expressly incorporated into individual contracts of employment.
(3) UCL's fundamental position was that enhanced redundancy payments were entirely a matter for management discretion, and had always been so, in respect of both whether they were paid at all and, if so, the level of actual payments. The formula contained in the 1984 document may well have been applied to some staff, but that was at UCL's discretion. There was no custom and practice requiring UCL to adhere to the severance pay provisions contained in the Guidelines.
(4) There had been significant changes in policy in 1999, 2002, 2006 and 2007. Although in 2002 in particular UCL may have consulted with the Unions, it had not then or at any other time negotiated the changes with them. When it had informed or consulted with the Unions, it had done so as a matter of good practice. It certainly had not done so because it regarded enhanced redundancy pay as a term and condition of employment.
(5) UCL rejected the Unions' argument that there was a permanent arrangement, the terms of which were well known. The fact that none of the representatives of either side present at the hearing had been aware of the 1984 documentation until either shortly before or at the hearing itself reinforced the point.
(6) The Unions' application to the CAC was part of a campaign to seek the right to bargain on enhanced redundancy payments, which again served to reinforce the point that they did not have such a pre-existing right.
33. UCL's letter of 3 July, with the attached documents listed at paragraph 11(a) above, together with UCL's letter of 20 July, made the following additional points:
(1) The standard conditions, employment contracts, and staff handbooks demonstrated that there was no reference to redundancy pay in any of UCL's documentation expressly setting out the terms and conditions of employment, and nor had there ever been any such references, apart from the single reference to statutory redundancy pay being applicable to contract research staff in one staff handbook.
(2) Not only did the Guidelines not establish any contractual entitlement but it was doubtful whether they ever applied to UCL. The covering letter was addressed to "All Schools and Institutes." UCL had always been a College of the University and was never a School or Institute.
(3) The covering letter made it clear that the Guidelines had been consulted but had not been agreed with the trade unions. In order to be contractual the Guidelines would have had to have been agreed following negotiation rather than consulted with the unions..
(4) It was unclear to whom the document applied. At the time of the Guidelines, academic staff enjoyed tenure and could not be made redundant and research staff were fixed-term and specifically excluded, as were part-time staff.
(5) The letter of 3 November 1999 did not state that the individual was receiving a payment based on the University of London scheme being a contractual entitlement.
(6) None of the letters or e-mails produced by the Unions provided evidence that redundancy payments were the subject of negotiation or that they were a contractual entitlement.
(7) If the Unions were seeking information on UCL's severance pay arrangements they could not be said to be sufficiently well known to be the basis of a custom and practice.
THE PANEL'S CONCLUSIONS
34. The Panel has to decide whether the Unions are recognised by UCL for collective bargaining as regards "redundancy payment schemes operated by UCL since 1 January 1997".
35. In presenting their arguments at the hearing the parties did not for the most part place them within an explicit and overall framework of legal principle. They did not cite any authorities. Their only references to statutory provisions were to section 181 of the Act, which could hardly be avoided, and to the Education Reform Act 1988, which is at most peripheral to the Panel's decision. It thus falls to the Panel to outline a general framework of legal principle within which its decision must be made.
36. According to section 181(1) of the Act, which is set out at paragraph 4 above, an employer is under a duty to disclose the requisite information for the purposes of all stages of collective bargaining about matters in respect of which a union is recognised. By virtue of section 178(3) of the Act, "recognition" means the recognition of a union by an employer "to any extent for the purpose of collective bargaining". Section 178(1) defines a "collective agreement" as "any agreement or arrangement made by or on behalf of" a union and employer "relating to one or more of the matters" listed in section 178(2). The first matter on the list is "terms and conditions of employment". The list also specifies termination of employment of one or more workers. Section 178(1) then defines "collective bargaining" as "negotiations relating to or connected with one or more of those matters" specified in the list. It follows that under the Act a recognised trade union is one that is recognised by the employer to any extent for the purposes of negotiations connected with, among other things, the terms and conditions of employment and/or the termination of employment of one or more workers.
37. There is no definition in the Act of the statutory phrase "terms and conditions of employment". The parties, especially UCL, assumed that this phrase as used by them for the purposes of defining their own procedural arrangements connoted something that would necessarily form part of the content of the individual contract of employment. It is undoubtedly the case that matters described as terms and conditions of employment do typically form part of the contract. However, the Panel considers that the phrase "terms and conditions of employment" in the statute is sufficiently broad as to apply to conditions that are habitually applied by the employer to employees, or routinely applied by common consent, even though they may not be technically incorporated into the contract of employment.
38. Where an employer voluntarily recognises one or more unions, as in the present case, the extent of recognition is defined by the parties' own recognition and procedural agreement or arrangement. It was common ground between UCL and the Unions that there was no formal written document that served as a recognition or procedure agreement expressly defining those issues for which the Unions, or each of them, were recognised for the purposes of collective bargaining. It was, however, also common ground that the Unions were recognised by UCL for the purposes of collective bargaining in respect of 'terms and conditions of employment'. This common understanding was in effect the parties' unwritten procedural and recognition arrangement. In accordance with this unwritten procedural arrangement, if a matter amounts to a term or condition of employment, the Unions are by definition recognised in respect of it. In terms of the statutory language, they are entitled to negotiate in connection with it.
39. The parties are in dispute about whether UCL's scheme of enhanced redundancy pay amounts to a term and condition of employment. According to UCL it does not and all payments that have been made have been purely discretionary; it follows on UCL's case that the Unions are by definition not recognised on this matter, which in practice has not been the subject of negotiations. According to the Unions, enhanced redundancy pay is a term and condition of employment in respect of which they are by definition recognised by UCL for the purposes of collective bargaining; in 2002 there had been negotiations in connection with it, and in 2006 there ought to have been.
40. Given that the parties consider that terms and conditions of employment determine the extent of union recognition under their unwritten procedural arrangement, it will be helpful to set out a general framework for analysing this phrase.
(1) The key legal relationship is the contract of employment subsisting between the employer and each individual employee. The content of this relationship is to be found in the substantive terms and conditions of employment covering pay, hours, holidays and many other topics.
(2) Provisions from documents and external sources (other than or in addition to legislation) may in principle be incorporated into the individual contract of employment. Such other documents or sources notably include collective agreements. However, a collective agreement is not the only potential external source of terms and conditions of employment. They may also be incorporated into the employment contract from documents issued by management or by employing institutions of one sort or another.
(3) In order to have terms incorporated from another document, the relevant provision in the document in question needs to be sufficiently precise and apt for incorporation.
(4) For the contract of employment to incorporate a provision from another document or source, some mechanism within the contract must trigger the process. The most common mechanism is an express statement either in the employment contract itself or in the written statement of the particulars of employment to the effect that the relevant provision, or the relevant provision as amended from time to time, is to be incorporated from the external document into the contract.
(5) However, in the absence of express incorporation, it is possible for a process of implied incorporation to occur. Typically the evidence for implied incorporation into an employment contract will be a consistent past practice of applying a well known and clear provision drawn from another document or external source.
(6) If a term has been incorporated into a contract of employment, it is not sustainable for an employer to argue that it is applying the term purely as a matter of discretion.
(7) Further, it will not be easily displaced in the absence of evidence of a variation to the contract agreed by the contractual parties, that is, by the employer and the individual employee.
41. Applying these principles to the present case, the first issue to be addressed is whether severance pay over and above the statutory entitlement may form part of the content of a contract of employment. In principle, it clearly can. Whether it does depends on the circumstances of the particular case.
42. The next question is whether the 1984 Guidelines is a document that is capable of providing a source from which terms may be incorporated into a contract of employment. Although the pre-1984 origins of this document are not known to the Panel, it is clear that it is not a collective agreement. Rather it is a set of guidelines approved by the Collegiate Council of the University of London and recommended to the different employing bodies then constituting the University. In short, it is a form of management document rather than an agreement with one or more unions. That does not, however, prevent it from being a potential source of contractual terms that may be incorporated into the individual contract of employment.
43. At this stage it is necessary to deal with UCL's contention that it was not covered by or even a recipient of the 1984 Guidelines because the covering letter was addressed to schools and institutes and not to colleges. Even if this were a valid argument, it would be immaterial since the only tests that matter are whether the relevant provision in the Guidelines is apt for incorporation and whether there is sufficient evidence to indicate that incorporation in fact occurred. However, the argument itself is not valid in that it is wholly semantic. Adopting a semantic approach, it would be arguable that, although the covering letter was formally addressed to schools and institutes, they were not intended to be covered by the attached Guidelines since the latter were approved by the Collegiate Council which by virtue of its name was to do with colleges and literally not to do with schools and institutes. In a similar vein, the stated purpose of the Guidelines was to establish a consensus "between schools" and therefore, to adopt the semantic approach, institutes could not have been intended to be covered. In the Panel's view, this type of reasoning is not persuasive. As a matter of construction of both the covering letter and the Guidelines as a whole, colleges such as UCL were intended to be among both the recipients of the communication and among the institutions to which the Guidelines were recommended.
44. The next question is whether the relevant provision was apt for incorporation into the individual contract of employment. The provision in question is not the whole of the Guidelines but specifically the formula in paragraph 8.2 dealing with the calculation of enhanced severance pay. It is true that the opening words of paragraph 8 refer to "discretionary" benefits, a description which on the face of it is arguably more consistent with something that is not apt for incorporation into employment contracts. However, the discretionary label is not in the Panel's view fatal to the aptness for incorporation of the wording contained in the severance pay formula itself. This is drafted in very precise contractual-type terms – "two weeks' pay for each year of service completed below the age of 41 and three weeks' pay for each year of service completed at age of 41 above". The "NB" clause then makes it expressly clear that the formula is to operate "without the statutory restriction on years of service or a week's pay". The Panel considers that such words are apt for incorporation into individual employment contracts. This conclusion is only reinforced by paragraph 12 of the Guidelines, which uses the language of "settlement" and "level of compensation".
45. As regards the mechanism for incorporation, there is nothing in the Guidelines that states that the provision relating to enhanced redundancy pay was intended to be incorporated into individual contracts of employment. More fundamentally, there is nothing in any of the contractual documentation supplied to the Panel that makes any express reference to enhanced redundancy pay, let alone enhanced redundancy pay as specified in the Guidelines. Express incorporation is therefore not a possibility on the evidence before the Panel.
46. The question is whether the provision on enhanced redundancy pay in the Guidelines was incorporated by implication into individual contracts of employment. In this connection there are various strands of evidence that have to be considered. The most concrete evidence was UCL's letter dated 3 November 1999, which was to the effect that permanent HEFCE funded staff were eligible for severance pay as provided for in what the letter described as the "University of London provision".
47. It is to be noted in this connection that at the hearing Mr Reilly conceded that UCL would have accorded some groups of staff severance pay in accordance with the formula in the Guidelines. The concession was made even though he had not seen the 1984 documents until the hearing and presumably even though he was not aware at that stage of the letter of 3 November 1999. It is to be noted further that the Unions maintained that the 1984 Guidelines had become part of the collective memory of the recognised trade unions, even though the specific documents were not located until a week before the hearing.
48. In the light of all these facts and matters the Panel has inferred that enhanced severance pay as specified in the 1984 Guidelines was payable and in fact paid to core funded permanent staff, both academic (and academic related) and non-academic, who were made redundant between 1984 and 1999. Indeed, since the changes to severance pay affecting core-funded staff were not made until sometime in 2002, the Panel concludes that such payments were payable and in fact paid from 1984 to 2002 to the extent that core-funded permanent staff were made redundant during this period.
49. This amounted to a consistent practice of applying a known and clear provision. It therefore satisfies what the Panel takes to be the test for the implied incorporation of a term from an external document into the contract of employment. It follows that the scheme of enhanced redundancy pay that operated down to 2002 became part and parcel of the terms and conditions of employment of UCL's permanent core-funded staff.
50. It is not possible to identify the precise moment in time when this contractual crystallisation occurred. However, since (a) the Guidelines were dated 1984 and (b) there is no suggestion that anything other than the Guidelines' provision on severance pay was applied, it is safe to say the provision was incorporated into individual contracts of employment by the mid-1990s at the very latest.
51. By the same token, the Panel rejects UCL's contention that at all times, including in particular all times between 1984 and 2002, UCL merely chose to exercise its discretion in relation to the enhanced severance pay accorded to core-funded staff. It is noteworthy that UCL produced no evidence to the effect that in this period it exercised its discretion differently at different times in respect of core-funded staff.
52. It follows that, in accordance with the parties' unwritten procedural and recognition arrangement, the Unions were by the mid-1990s at the latest recognised by UCL for the purposes of negotiations on enhanced redundancy pay applicable to permanent core funded staff.
53. The system of enhanced redundancy pay was amended to some degree in 1999 by extending some of the principles previously applicable to core-funded staff to contract researchers with relatively long service. The letter of 3 November 1999 refers to a meeting and a proposal, but the Panel has insufficient evidence to say what the Union's role was in this process.
54. In 2002 the scheme of enhanced redundancy pay as a whole was substantially amended. The changes were based on a modification of the 1984 Guidelines. The scheme as amended was in operation from 2002-06. The documentary evidence confirms that payments were made in accordance with the amended scheme.
55. As noted at paragraph 27 above, the 2002 amendment was implemented only after consultation with the Unions, which were in agreement with the outcome. Further, notwithstanding UCL's need to respond to the introduction of statutory protection for fixed-term employees, the terms of the amended scheme were the product at least in part of the dialogue between UCL and the Unions.
56. This sequence of events is hard to reconcile with UCL's assertion that any changes that it made in 2002 were purely discretionary. But another question might be thought to arise. Did the interaction between UCL and the Unions in 2002 amount to collective bargaining within the meaning of section 178 of the Act? More explicitly, did UCL negotiate with the Unions on a matter relating to or connected with the terms and conditions of employment and/or the termination of employment of one or more workers? Even though the process was described by both parties as "consultation" and did not result in a formal collective agreement, the point is arguable.
57. However, the Panel considers that it is unnecessary to reach a conclusion about the nature of the parties' interaction in 2002 for the following reason. If an employer voluntarily recognises one or more unions, the extent of recognition is determined by the parties' own recognition and procedure arrangement. In accordance with the unwritten procedural arrangement subsisting between UCL and the Unions, the latter were recognised on topics falling within the scope of terms and conditions of employment. As found by the Panel, enhanced redundancy pay became a term and condition of employment applicable to permanent core funded staff by the mid-1990s at the latest. This position had not changed by 2002. In order for such recognition to have ceased, UCL would have had to have informed or notified the Unions that they were no longer recognised in respect of enhanced redundancy pay. Since there was no communication to this effect, the Unions were still recognised on this topic in 2002, irrespective of whether any actual negotiations took place at that time.
58. It was reasonably clear that by 2006 the scheme as amended in 2002 had become part of the terms of conditions of employment not only of permanent core-funded staff but also of contract research staff as well. There are two bases for saying that the 2002 scheme became a term and condition of employment. First, the provision on enhanced severance pay, as amended in 2002, was both known and certain and it was applied by UCL until some point in 2006. The scheme was thus incorporated by implication into individual contracts of employment. Second, and in the alternative, the amended provision was routinely applied by UCL with the consent of staff and it served to regulate the relationship between UCL and its individual employees. It thus constituted a condition of employment, whether or not it was technically incorporated into individual employment contracts.
59. It follows once again that, in accordance with the parties' own unwritten procedural and recognition arrangement, the Unions were in 2006 still recognised by UCL for the purposes of any negotiations on enhanced severance pay.
60. In 2006 UCL unilaterally introduced a change to the scheme of enhanced severance pay and informed the Unions after the event. This did not mean that the Unions were suddenly not recognised for the purposes of negotiations on enhanced severance pay. Rather it meant that UCL was in breach of its obligation to negotiate under the unwritten procedural and recognition arrangement.
61. In the light of this analysis the Panel will decide the preliminary point in the Unions' favour. The parties will be notified in due course concerning a hearing to determine the Unions' substantive claim for information disclosure.
DECISION ON THE PRELIMINARY ISSUE
62. The Panel decides as follows:
For the purposes of TULR(C)A section 181(1), the Unions are recognised by UCL in respect of the matter on which they have requested information, namely, "redundancy payment schemes operated by UCL since 1 January 1997"
Professor Roy Lewis - Panel Chairman
6 August 2007
Names of those who attended the hearing
Mr S Wallis - UCU Branch Secretary
Mr M Moran - UCU Regional Support Officer
Ms T Piper - Unite Branch Secretary
Ms W Biggin - Unison Branch Secretary
Mr C Mordue - Partner, Pinsent Masons
Mr T Reilly - Assistant HR Director - Policy, UCL
 Whether any individual member of the academic staff appointed prior to 20 November 1987 has or had tenure depends on the construction of his or her contract of employment in conjunction with UCL's statutes. While Mr Reilly's assertion in his letter of 20 July 2007 that academic staff at UCL had tenure is noted, the Panel does not know whether his assertion is correct. Assuming that it is, the effect of the 1988 Act was as stated at paragraph 20 above.