CODE OF PRACTICE

Access and unfair practicesduring recognition andderecognition ballots

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CODE OF PRACTICE

ACCESS AND UNFAIRPRACTICES DURINGRECOGNITION AND

DERECOGNITION BALLOTS

This Code is issued under the power given to theSecretary of State by section 203 of the TradeUnion and Labour Relations (Consolidation) Act1992, with the authority of Parliament (resolutionspassed on 18 July 2005 by the House ofCommons and on 19 July 2005 by the House ofLords). It comes into effect, by order of theSecretary of State, on 1 October 2005.

This Code replaces the Code of Practice onAccess to Workers during Recognition andDerecognition Ballots.

Page

What about smaller businesses?...... 27Arrangements for non-typical workers............................................. 27What about joint employer/unionactivities? .......................................... 29

SECTION D: OTHER ACCESS ISSUES................................................... 30

Observing an access agreement ...... 30Privacy of meetings .......................... 30Behaving responsibly........................ 33

SECTION E: RESPONSIBLECAMPAIGNING AND UNFAIR PRACTICES ............................................ 35

Responsible campaigning ................. 35What are unfair practices?................ 37Who should campaign? .................... 40What are the main forms ofcampaigning?.................................... 42How should campaigners put across their message?...................... 45

SECTION F: RESOLVING DISPUTES .............................................. 48

Intervention by the CAC ................... 48Minor disputes.................................. 51The independent person................... 53

OTHER USEFUL GUIDANCE BOOKLETS AND ADDRESSES............. 54

CONTENTS

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PREAMBLE ............................................ 04

SECTION A: INTRODUCTION .............. 06Background....................................... 06Recognition....................................... 06Derecognition ................................... 09General purpose of the Code ........... 10Structure of the Code ....................... 12Legal status of the Code .................. 13

SECTION B: PREPARING FOR ACCESS ................................................. 14

When should preparations for access begin?.............................. 14Joint applications by two or more unions...................................... 14Establishing an access agreement ........................................ 15Amending the access agreement ........................................ 17Resolving differences about agreeing access arrangements......... 18

SECTION C: ACCESS IN OPERATION ........................................... 19

What is the access period? .............. 19Who may be granted access? .......... 20Where will the access take place?..... 21When will the access take place? ...... 22The frequency and duration of union activities .................................. 23What about written communication? ............................... 25

The Code’s provisions apply equally to menand to women, but for simplicity themasculine pronoun is used throughout.

Unless the text specifies otherwise, (i) theterm “union” should be read to mean“unions” in cases where two or moreunions are seeking to be jointly recognised;(ii) the term “workplace” should be read tomean “workplaces” in cases where arecognition application covers more thanone workplace; and (iii) the term “workingday” should be read to mean any day otherthan a Saturday or a Sunday, ChristmasDay or Good Friday, or a day which is abank holiday.

Passages in this Code which appear initalics are extracts from, or re-statementsof, provisions in primary legislation.

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PREAMBLE

This document revises the Code ofPractice on Access to Workers duringRecognition and Derecognition Ballots,which came into effect on 6 June 2000. It also contains practical guidance on unfairpractices during recognition andderecognition ballots, for which the lawprovides a separate power for theSecretary of State to issue a Code ofPractice. These two Codes on access andunfair practices are therefore combinedwithin this single document. For simplicityand ease of reference, the text refers tothere being just one Code of Practicedealing with both topics.

This Code supersedes the Code of Practiceon Access to Workers during Recognitionand Derecognition Ballots, which came intoeffect on 6 June 2000. Pursuant tosection 208(2) of the Trade Union andLabour Relations (Consolidation) Act 1992,that Code shall cease to have effect on thedate on which this Code of Practice comesin force.

The legal framework within which thisCode will operate is explained in its text.While every effort has been made toensure that explanations included in theCode are accurate, only the courts can giveauthoritative interpretations of the law.

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3 Schedule A1 places various duties andobligations on parties during the period of arecognition ballot including the following:

(a) Paragraph 26(2) of Schedule A1 places aduty on the employer to co-operategenerally, in connection with the ballot,with the union and the independent personappointed to conduct the ballot;

(b) Paragraph 26(3) of Schedule A1 placesa duty on the employer to give a unionapplying for recognition such access to theworkers constituting the bargaining unit asis reasonable to enable the union to informthe workers of the object of the ballot andto seek their support and their opinions onthe issues involved;

(c) Paragraph 26(4A) of Schedule A1 placesa duty on the employer to refrain frommaking any offer to any or all of theworkers constituting the bargaining unitwhich (i) has or is likely to have the effectof inducing any or all of them not to attenda relevant meeting between the union andthe workers constituting the bargainingunit and (ii) is not reasonable in thecircumstances. A “relevant meeting” isdefined as a meeting arranged inaccordance with the duty to providereasonable access to which the employerhas agreed, or is required, to permit theworker to attend;

(d) Paragraph 26(4B) of Schedule A1places a duty on the employer to refrainfrom taking or threatening to take anyaction against a worker solely or mainly on

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SECTION A

INTRODUCTION

Background

1 Schedule A1 of the Trade Union andLabour Relations (Consolidation) Act 1992,inserted by the Employment Relations Act1999 and subsequently amended by theEmployment Relations Act 2004, sets outthe statutory procedure for the recognitionand derecognition of trade unions for thepurpose of collective bargaining.

Recognition

2 Where an employer and a trade unionfail to reach agreement on recognitionvoluntarily, the statute provides for theunion to apply to the Central ArbitrationCommittee (CAC) to decide whether itshould be recognised for collectivebargaining purposes. In certain cases, theCAC may award recognition, or dismiss theapplication, without a ballot. In other cases,the CAC will be obliged to hold a secretballot of members of the bargaining unit todetermine the issue. If a ballot takesplace, the CAC will decide whether itshould be held at the workplace, by post,or, if special factors make it appropriate, bya combination of the two methods. Theballot must be conducted by a qualifiedindependent person appointed by the CAC.

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Derecognition

5 The CAC can also call a derecognitionballot in cases where an employer, or hisworkers, are seeking to end recognitionarrangements with a union. In general, theduties and obligations on the parties arethe same in both recognition andderecognition ballots. Paragraph 118(3) ofSchedule A1 contains identical wording toparagraph 26(3) of Schedule A1, placing aduty on the employer to give therecognised union reasonable access to theworkers comprising the bargaining unitwhere the CAC is holding a ballot onderecognition. Similarly, paragraph 118(4A)places a duty on the employer to refrainfrom making offers to workers not toattend access meetings. And paragraph119A(1) requires both the employer, theunion and, in cases where workers areapplying to derecognise the union, thoseworkers to refrain from using an unfairpractice during the period of aderecognition ballot. Paragraphs 118(8)and 119(9) and paragraph 119A(5) containsimilar provisions to paragraphs 26(8) and26(9) and 27A(5) enabling the Secretary ofState to issue a Code of Practice givingpractical guidance about reasonable accessand unfair practices during derecognitionballots.

6 For simplicity, most examples andexplanations in this Code relate to the casewhere the union is seeking recognition.However, the guidance contained in thisCode applies equally to cases where theballot is about recognition or derecognition.

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the grounds that he attended or took partin any relevant meeting between the unionand the workers in the bargaining unit, oron the grounds that he indicated hisintention to attend or take part in such ameeting. The definition of a “relevantmeeting” is the same as at (c);

(e) Paragraph 27A(1) of Schedule A1 placesan obligation on both the employer and theunion to refrain from using an unfairpractice with a view to influencing theresult of a recognition ballot. The unfairpractices are defined by paragraph 27A(2)of Schedule A1.

4 Section 203(1)(a) of the Trade Union andLabour Relations (Consolidation) Act 1992gives a general power to the Secretary ofState to issue Codes of Practice containingpractical guidance for the purpose ofpromoting the improvement of industrialrelations. Paragraphs 26(8) and 26(9) ofSchedule A1 specify that this generalpower includes the particular power toissue a Code of Practice giving practicalguidance about reasonable access duringrecognition ballots and about theemployer’s duty to refrain from makingoffers to workers not to attend accessmeetings. In addition, paragraph 27A(5) ofSchedule A1 specifies that the generalpower includes the particular power toissue a Code of Practice about unfairpractices for the purposes of paragraph27A.

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help the employer and the union arrive atagreed arrangements for access, which cantake full account of the circumstances ofeach individual case.

9 The second purpose of this Code is tohelp parties avoid committing unfairpractices. Recognition and derecognitionballots usually occur because the employerand the union cannot agree the way ahead.In some cases a party will wish tocommunicate its views to the workersconcerned through active campaigning oncethe CAC has informed it that a ballot will beheld. This Code aims to encouragereasonable and responsible behaviour byboth the employer and the union whenundertaking campaigning activity in thisperiod. A failure to follow the Code’sguidance on responsible behaviour may notnecessarily mean that an unfair practice hasoccurred. However, responsible campaigningshould help ensure that acrimony betweenthe parties is avoided and it greatly reducesthe risk that individual workers are exposedto intimidation, threat or other unfair practiceswhen deciding which way to cast their vote.As regards the treatment of individuals, bothparties should note that the law providesprotections against dismissal or detriment forworkers who campaign either for or againstrecognition. The Code does not covercampaigning activity which occurs before theCAC decides that a ballot should be held.However, parties are still advised to actresponsibly when undertaking earlycampaigning and they may benefit bydrawing on the guidance provided by thisCode.

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General purpose of the Code

7 This Code covers two related issues:the union’s access to workers during theperiod of recognition or derecognitionballots and the avoidance of unfairpractices when campaigning during thatperiod. As regards the first topic ofaccess, this Code gives practical guidanceabout the issues which arise when anemployer receives a request by a union tobe granted access to his workers at theirworkplace and/or during their workingtime. Of course, the union does not needthe employer’s consent or assistance toarrange access outside the workplace andoutside working hours - say, when hiring apublic hall to hold a meeting or when usinglocal newspapers and media to put acrossits case. The Code does not therefore dealwith the issues that arise when arrangingsuch access, though those parts of theCode which concern the conduct of partieswhen campaigning are relevant. This Codedeals with the specific circumstances ofaccess during the period of recognition orderecognition ballots. It does not provideguidance on access at other times.

8 Access can take many and varied formsdepending largely on the type of workplaceinvolved and the characteristics of theballoted workforce. The overall aim is toensure that the union can reach theworkers involved, but local circumstanceswill need to be taken into account whendeciding what form the access shouldtake. Each case should be looked at onthe facts. This Code therefore aims to

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Legal Status of the Code

12 Under paragraphs 27 and 119 ofSchedule A1, the CAC may orderemployers who are breaching their duty toallow reasonable access to take specified,reasonable steps to do so, and can awardrecognition without a ballot, or can refuseto award derecognition where applied forby the employer, if an employer fails toabide by its orders to remedy a breach.Paragraphs 27C - 27F of Schedule A1provide a number of actions which theCAC may take when it concludes that aparty has committed an unfair practiceduring a recognition or derecognition ballot.For example, the CAC may order a furtherballot and it may order a party to takespecified actions to help remedy theeffects of the unfair practice. In addition,the CAC may award recognition orderecognition (or dismiss an application forrecognition or derecognition) where anunfair practice has involved the use ofviolence or the dismissal of a union official,or where the CAC has found that a partyhas committed a second unfair practice orfailed to comply with a remedial order.

13 This Code itself imposes no legalobligations and failure to observe it does notin itself render anyone liable to proceedings.But section 207 of the Trade Union andLabour Relations (Consolidation) Act 1992provides that any provisions of this Code areto be admissible in evidence and are to betaken into account in proceedings beforeany court, tribunal or the CAC where theyconsider them relevant.

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10 In order for a ballot to take place, theunion must have satisfied the CAC that atleast 10% of the proposed bargaining unitare already members of the union, and thata majority of the workers in the proposedbargaining unit would be likely to favourrecognition. There is therefore a goodchance that recognition will be granted tothe union, and that a working relationshipbetween the parties will have to besustained after the ballot. This longer termperspective should encourage both theemployer and the union to behaveresponsibly and in a co-operative spiritduring the balloting period.

Structure of the Code

11 This Code deals mainly with issuesconcerning access and unfair practices.These are distinct, though related, mattersand all sections of the Code shouldtherefore be read in conjunction. SectionsB – D contain guidance on access, whilstSection E provides guidance on conduct toavoid committing an unfair practice.Finally, Section F provides guidance on theresolution of any disputes which mightarise about the arrangement of access tothe union or to the conduct of either theemployer or the union when campaigningduring the balloting period.

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the unions should have common accessarrangements. The amount of timeneeded for access would normally be thesame for single or joint applications.

Establishing an access agreement

16 It would be reasonable for the employerto want to give his prior permission beforeallowing a full time union official to enter hisworkplace and talk to his workers. Inparticular, the employer may have securityand health and safety issues to consider.The parties should discuss practicalarrangements for the union’s activities atthe workplace, in advance of the period ofaccess actually beginning.

17 Consideration should be given toestablishing an agreement, preferably inwritten form, on access arrangements.Such an agreement could include:

• the union’s programme for where,when and how it will access theworkers on site and/or during theirworking time; and

• a mechanism for resolvingdisagreements, if any arise, aboutimplementing the agreed programmeof access.

When discussions about accessarrangements are taking place, partiesshould also seek to reach understandingsabout the standards of conduct expectedof those individuals who campaign on theirbehalf (see paragraph 52 below for moreguidance on this point).

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SECTION B

PREPARING FOR ACCESS

When should preparations foraccess begin?

14 Preparations for access should beginas soon as possible. The CAC is requiredto give notice to the employer and theunion that it intends to arrange for theholding of a ballot. There then follows aperiod of ten working days before the CACproceeds with arrangements for the ballot.The parties should make full use of thisnotification period to prepare for access.The union should request an early meetingwith the employer in this period to discussaccess arrangements. The employershould agree to arrange the meeting on anearly date and at a mutually convenienttime. The employer and the union shouldensure that the individual or individualsrepresenting them at the meeting areexpressly authorised by them to take allrelevant decisions regarding access, or areauthorised to make recommendationsdirectly to those who take such decisions.

Joint applications by two or moreunions

15 Where there is a joint application forrecognition by two or more unions actingtogether, the unions should act jointly inpreparing and implementing the accessarrangements. Therefore, unless theemployer and the unions agree otherwise,

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Amending the access agreement

20 Every effort should be made to ensureaccess agreements are faithfullyimplemented. To avoid misunderstandingon the ground, the employer should seekto draw the attention of relevant managersto the agreement and the commitments torelease workers to attend accessmeetings. Likewise, the union should takesteps to ensure that the relevant unionofficials and representatives are madeaware of the agreed arrangements.However, in some cases, the agreementmay need to be changed if circumstancesalter. For example, a union official selectedto enter the workplace may beunexpectedly called away by his union onother urgent business. Likewise, theemployer might wish to re-arrange anevent if the selected meeting-room isunexpectedly and unavoidably needed forother important business purposes. Ifsuch circumstances arise, the union, or theemployer if his situation changes, shouldnotify the other party at the earliestopportunity that a change will need to bemade to the agreed access arrangements,and offer alternative suggestions. Theother party should generally accept thealternative arrangements, if they are of anequivalent nature to those already agreed.

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18 In seeking to reach an agreement, theunion should put its proposals foraccessing the workers to the employer.The employer should not dismiss theproposals unless he considers the union’srequirements to be unreasonable in thecircumstances. If the employer rejects theproposals, he should offer alternativearrangements to the union at the earliestopportunity, preferably within threeworking days of receiving the union’s initialproposals. In the course of this dialoguethe union will need to reveal its plans foron-site access.

19 It is reasonable for the union torequest information from the employer tohelp it formulate and refine its accessproposals. In particular, the employershould disclose to the union informationabout his typical methods ofcommunicating with his workforce andprovide such other practical information asmay be needed about, say, workplacepremises or patterns of work. Whererelevant to the union in framing its plans,the employer should also discloseinformation about his own plans to putacross his views, directly or indirectly, tothe workers about the recognition (orderecognition) of the union. The employershould not, however, disclose to the unionthe names or addresses (postal or e-mail)of the workers who will be balloted, unlessthe workers concerned have authorisedthe disclosure.

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SECTION C

ACCESS IN OPERATION

What is the access period?

23 Following the notification period, andproviding it does not receive a contraryrequest from the trade union, the CAC willbe required to arrange the holding of theballot. As soon as is reasonablypracticable, the CAC must inform theparties of the fact that it is arranging theballot, the name of the qualifiedindependent person appointed to conductthe ballot, and the period within which theballot must be conducted. The ballot mustbe held within 20 working days from theday after the appointment of theindependent person, or longer if the CACshould so decide.

24 The period of access will begin as soonas the parties have been informed of thearrangements for the ballot as in paragraph23 above. The CAC will endeavour toinform both parties as soon as theindependent person has been appointed.This may be achieved by a telephone callto both parties, followed by a letter ofconfirmation.

25 If the ballot is to be conducted by post,the period of access will come to an endon the closing date of the balloting period.If the ballot is to be conducted at theworkplace, access will continue until theballot has closed. However, where the

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Resolving differences aboutagreeing access arrangements

21 Where the employer and the union failto agree access arrangements voluntarily,either party, acting separately or together,may ask the Advisory, Conciliation andArbitration Service (Acas) to conciliate.Given the limited time available, Acas willrespond to the conciliation request as soonas possible, and preferably within oneworking day of receiving the request. Bothparties should give all reasonableassistance to Acas to enable it to help theparties overcome their difficulties throughconciliation.

22 Every effort should be made to resolveany procedural difficulties remaining, but,ultimately, where it remains deadlocked,the CAC may be asked to assist. The CACcould, in appropriate circumstances,consider delaying the arrangement of theballot for a limited period to give extra timefor the parties to settle their differences.However, where no agreement isforthcoming, the CAC may be asked toadjudicate and to make an order.

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(c) “full-time” union officials. (That is,individuals employed by the union, who areofficials of the union within the meaning ofthe Sections 1 and 119 of the Trade Unionand Labour Relations (Consolidation) Act1992).

The number of union representativesentitled to gain access should beproportionate to the scale and nature ofthe activities or events organised withinthe agreed access programme.

Where will the access take place?

27 Where practicable in thecircumstances, a union should be grantedaccess to the workers at their actualworkplace. However, each case willdepend largely on the type of workplaceconcerned, and the union will need to takeaccount of the wide variety ofcircumstances and operationalrequirements that are likely to be involved.In particular, consideration will need to begiven to the employer’s responsibility forhealth and safety and security issues. Inother words, access arrangements shouldreflect local circumstances and each caseshould be examined on the facts.

28 Where they are suitable for thepurpose, the employer’s typical methods ofcommunicating with his workforce shouldbe used as a benchmark for determininghow the union should communicate withmembers of the same workforce duringthe access period. If the employer followsthe custom and practice of holding large

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ballot is to be conducted at the workplace,and where the union has already hadadequate access opportunities, both theemployer and the union should largelyconfine their activities during the actualhours of balloting to the encouragement ofworkers to vote. They should reduce orcease other campaigning activity at thistime. For example, both the employer andthe union should avoid scheduling largemeetings at such times. This shouldensure that the ballot is conducted in acalm and orderly fashion, with minimumdisruption to the normal functioning of theworkplace.

Who may be granted access?

26 The access agreement should specifywho should be given access to theworkers who will be balloted. Employersshould be prepared to give access to:

(a) individual union members employed bythe employer, who are nominated by theunion as the lead representative of theirmembers at workplaces where thebargaining unit is situated;

(b) individual union members employed bythe employer, who are nominated by theunion as the lead representative of theirmembers at other workplaces in theemployer’s business, provided that it ispracticable for them to attend events atworkplaces where the bargaining unit issituated. The costs of travelling from otherworkplaces should be met by theindividuals or the union; and

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as large a number of the workers aspossible. Again, the arrangements shouldreflect the circumstances of each individualcase. Consideration should be given toholding events, particularly those involvinga large proportion of the workers in thebargaining unit, during rest periods ortowards the end of a shift. In deciding thetiming of meetings and other events, theunion and the employer should be guidedby the employer’s custom and practicewhen communicating with his workforce.If, due to exceptional circumstances,access must be arranged away from theworkplace, it might be practicable toarrange events in work time if they are heldnearby, within easy walking distance.Otherwise, off-site events should normallyoccur outside work time.

The frequency and duration ofunion activities

30 The parties will need to establishagreed limits on the duration andfrequency of the union’s activities duringthe access period. Subject to thecircumstances discussed in paragraphs 27- 29 above, the employer should allow theunion to hold one meeting of at least 30minutes in duration for every 10 days ofthe access period, or part thereof, which allworkers or a substantial proportion of themare given the opportunity to attend. Incircumstances where the employer orothers organise similar large-scalemeetings in work time against therecognition application (or in favour ofderecognition), then it would be reasonable

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workforce meetings in, for example, ameeting room or a canteen, then theemployer should make the same facilitiesavailable to the union. However, in caseswhere the workplace is more confined,and it is therefore the employer’s customand practice to hold only small meetings atthe workplace, then the union will also belimited to holding similar small meetings atthat workplace. In exceptionalcircumstances, due to the nature of thebusiness or severe space limitations,access may need to be restricted tomeetings away from the workplacepremises, and the union will need toconsider finding facilities off-site at its ownexpense unless it agrees otherwise withthe employer. In these circumstances, theemployer should give all reasonableassistance to the union in notifying theworkers in advance of where and whensuch off-site events are to take place.Where such exceptional circumstancesexist, it would normally be expected thatthe employer would not hold similar eventsat the workplace.

When will the access take place?

29 The union should ensure that disruptionto the business is minimised, especially forsmall businesses which might find it moredifficult to organise cover for absentworkers. The union’s access to theworkers should usually take place duringnormal working hours but at times whichminimise any possible disruption to theactivities of the employer. This will ensurethat the union is able to communicate with

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agreement during work time, should bepaid, in full, for the duration of theirabsence from work. The employer will notbe expected to pay the worker if themeeting or surgery takes place when theworker would not otherwise have been atwork, and would not have been receivingpayment from the employer.

33 Where the union wishes one of theemployer’s workers within the meaning ofparagraphs 26(a) and 26(b) above toconduct a surgery, the employer shouldnormally give time off with pay to theworker concerned. The worker shouldensure that he provides the employer withas much notice as possible, giving detailsabout the timing and location of thesurgery. Exceptionally, it may bereasonable for the employer to refuse timeoff. This will apply if unavoidable situationsarise where there is no adequate cover forthe worker’s absence from the workplaceand the production process, or theprovision of a service cannot otherwise bemaintained. Before refusing permission,the employer should discuss the matterwith the union and the worker to explorealternative arrangements.

What about writtencommunication?

34 The union may want to display writtenmaterial at the place of work. Employers,where practicable, should provide a noticeboard for the union’s use. This noticeboard should be in a prominent location inthe workplace and the union should be

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for the union to hold additional meetings, ifnecessary, to ensure that in total it has thesame number of large-scale meetings asthe employer and his supporters.

31 Where they would be appropriatehaving regard to all the circumstances,union “surgeries” could be organised atthe workplace during working hours atwhich each worker would have theopportunity, if they wish, to meet a unionrepresentative for fifteen minutes on anindividual basis or in small groups of two orthree. The circumstances would includewhether there was a demand from theworkforce for surgeries, whether thesurgeries could be arranged off-site aseffectively, whether the holding ofsurgeries would lead to an unacceptableincrease in tension at the workplace andwhether the employer, line managers orothers use similar one-to-one or smallmeetings to put across the employer’scase. The union should organise surgeriesin a systematic way, ensuring that workersattend meetings at pre-determined times,thereby avoiding delays before workers areseen and ensuring that they promptlyreturn to their work stations afterwards.Wherever practicable, the union shouldseek to arrange surgeries during periods ofdown-time such as rest or meal breaks.Where surgeries do not take place, theminimum time allowed for each largerscale meeting should be 45 minutes.

32 An employer should ensure thatworkers who attend a meeting or a“surgery” organised by the union with his

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representative to make reasonable use ofthese systems if the employer explicitly, ortacitly, allows his workers to use them formatters which are not directly related tothe performance of their job. In caseswhere such use is disallowed, it would stillbe reasonable for the representative to usethem, if the employer uses such forms ofcommunication to send to the workersinformation against the union’s case.When sending messages in this capacity,the representative should make it clearthat the advice comes from the union andnot the employer.

What about small businesses?

37 Access arrangements for smallbusinesses need not necessarily createdifficulties. For example, it may be easierto arrange for a smaller number of workersto meet together. On the other hand,there may be difficulties providing coverfor workers in smaller organisations, or infinding accommodation for meetings. Insuch cases, the employer and the unionshould try to reach an understanding abouthow access arrangements can beorganised to ensure minimum disruption.Agreements may need to be flexible toaccommodate any particular needs of theemployer.

Arrangements for non-typicalworkers

38 Many, or sometimes most, workers ina bargaining unit may not work full time ina standard Monday-Friday working week.

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able to display material, includingreferences to off-site meetings, withoutinterference from the employer. Often, anexisting notice-board could be used for thispurpose. The union should also be able toplace additional material near to the notice-board including, for example, copies ofexplanatory leaflets, which the workersmay read or take away with them. If thereare no union representatives within themeaning of paragraphs 26(a) and 26(b)above present at the workplace, theemployer should allow access to a full timeofficial of the union to display the material.

35 The union may also wish to make useof its web-site pages on the internet forcampaigning purposes. An employershould allow his workers access to theunion’s material in the same way that heexplicitly, or tacitly, allows his workers todown-load information in connection withactivities not directly related to theperformance of their job. If an employergenerally disallows all such internet use,he should consider giving permission toone of his workers nominated by the unionto down-load the material, and it would bethis person’s responsibility to disseminateit more widely among other workers.

36 A nominated union representativeemployed by the employer may also wantto make use of internal electroniccommunication, such as electronic mail orintranets, for campaigning purposes. Forexample, he may want to remind workersof forthcoming union meetings orsurgeries. The employer should allow the

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will supply the name, address andtelephone number of the independentperson to both the union and the employer.

What about joint employer/unionactivities?

41 There may be scope for the union andthe employer to undertake joint activitieswhere they both put across theirrespective views about recognition orderecognition in a non-confrontational way.Such joint activities can be an efficientmethod of providing information,minimising business disruption and costs.For example, the parties may wish toconsider:

• the arrangement of joint meetingswith each party allocated a period ofthirty minutes to address the workers;and

• the use of a joint notice-board wherean equal amount of space is devotedto the employer and the union.

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Others might rarely visit the employer’spremises. The employer should bear inmind the difficulties faced by unions incommunicating with:

• shift workers • part-time workers • homeworkers • a dispersed or peripatetic workforce • those on maternity or parental leave• those on sick leave.

39 The employer should be receptive to aunion’s suggestions for securingreasonable access to such “non-typicalworkers”, and allow them, wherepracticable, to achieve a broadly equivalentlevel of access to those workers as totypical workers. It would be reasonable forthe union to organise its meetings orsurgery arrangements on a more flexiblebasis to cover shift workers or part-timeworkers. An employer should agree to themaximum flexibility of arrangements,where reasonable in the circumstances.This would not extend to an employerbeing obliged to meet the travel costs ofhis workers attending meetings arrangedby the union.

40 In addition, the union will be able tomake use of the independent person todistribute information to home addressesvia the postal service. This will ensure thatliterature will be received by any workerswho are not likely to attend the workplaceduring the access period, for examplethose on maternity or sick leave. The CAC

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44 Supervisors or managers may attend anaccess meeting, even though they may beseen as representatives of the employer,provided they have been invited to attendby the union. In general, it should beexpected that such workers would beinvited by the union to attend accessmeetings where they fall within thebargaining unit and are therefore entitled tovote. However, there may becircumstances - for example, where theattendance of supervisors would deter otherworkers from expressing their opinions, orwhere managers are campaigning on behalfof the employer – where it is reasonable forthe union not to invite them. In suchcircumstances, consideration should begiven to arranging separate accessmeetings for the supervisors and managersconcerned. In situations where they are notinvited to attend meetings with otherworkers, supervisors or other managersshould not insist on attending simplybecause they are part of the bargaining unit.To avoid uncertainty and the disruption ofmeetings, the union should consider inadvance whether it wishes to exclude suchindividuals from meetings, taking stepswhere possible to inform the individualsconcerned before the meeting occurs. Theunion should avoid issuing generalised orloosely drafted invitations to attend accessmeetings, if its intention is to preventcertain individuals from attending.

45 In small workplaces or in workplaceswith no dedicated meeting rooms, it maybe difficult to find suitable accommodationon site which can be set aside for the

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SECTION D

OTHER ACCESS ISSUES

Observing an access agreement

42 Both parties should ensure they keepto agreements about accessarrangements. For example, if the partiesagree to hold a meeting lasting 30 minutesin duration, every effort should be made toensure that the meeting does not over-runits allocated time. Likewise, neither partyshould remove, or tamper, with materialplaced on a notice board by the otherparty, unless they are obliged to do so forlegal reasons.

Privacy of meetings

43 Employers should respect the privacyof access meetings. Paragraph 26(4D) ofSchedule A1 of the Trade Union andLabour Relations (Consolidation) Act 1992therefore provides that the employer orany representative of his must not attendan access meeting unless invited to do so.Likewise, the employer must not use theunion’s unwillingness to allow him or hisrepresentative to attend as a reason torefuse an access meeting unless it isreasonable to do so. The employer mustnot record or otherwise be informed of theproceedings of a meeting unless it isreasonable for him to do so.

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47 The employer should not eavesdrop onaccess meetings or pressurise any ofthose attending to disclose what occurredat them. Generally, the employer shouldnot seek to question attendees about theproceedings of meetings but, inexceptional cases of, say, allegedharassment or damage to property, theremay be a need for the employer toinvestigate the conduct of meetings.However, it must be recognised thatinformation often circulates quite widelywithin workplaces and the employer maytherefore learn what took place eventhough he took no specific steps todiscover what had occurred. In somecases, individual workers may disclosewithout prompting what took place atmeetings in their ordinary exchanges withline managers or other work colleagues.

Behaving responsibly

48 Both parties should endeavour toensure that, wherever possible, potentiallyacrimonious situations are avoided. Foraccess arrangements to work satisfactorily,the employer and the union should behaveresponsibly, and give due consideration tothe requirements of the other partythroughout the access period. Forexample, neither the union nor theemployer should seek to disrupt orinterfere with meetings being held by theother party. So, if the union is holding ameeting, the employer should avoid thescheduling of other conflicting meetings orevents which would draw workers awayfrom the union’s meeting. Unless special

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exclusive use of the union to hold ameeting. Achieving privacy in suchcircumstances may be difficult, butsolutions might be found by holdingmeetings during lunch breaks or at othertimes when business would not besignificantly affected if managers or otherwork colleagues were required to vacatethe premises or meeting area in question.In extreme cases, for example wherecontinuous working is necessary, privacymay be achieved only by holding meetingsaway from the workplace.

46 Many employers have securitycameras or other recording equipmentpermanently positioned on site to monitoror record workplace activity. Most areinstalled for reasons of security, health andsafety or quality control. Where suchequipment is used, and could recordmeetings, the employer should inform theunion accordingly unless key securityconsiderations prevent such disclosure.The employer and the union should thendiscuss ways to ensure the privacy ofmeetings. It may be possible, for example,to turn off the equipment in question forthe short period of meetings. Alternatively,the employer may wish to ensure that anytransmissions from the surveillanceequipment during the period of themeeting are not viewed live or recorded.The scope for such measures may belimited in rare cases where security orhealth and safety may be significantly andunavoidably jeopardised as a result.

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SECTION E

RESPONSIBLE CAMPAIGNINGAND UNFAIR PRACTICES

50 This Section of the Code providesguidance on those standards of behaviourwhich are likely to prevent undue influenceor other unfair practices from occurring. Inplaces, it also refers to behaviour which, ifpursued, may constitute an unfair practice.However, given the range of possiblebehaviours involved, it is unrealistic for theCode to identify every circumstance whichmight give rise to undue influence or otherunfair practice. In any event, as Section Fdiscusses, it is the task of the CentralArbitration Committee to judge whether anunfair practice has been committed, basingits judgment on the particular facts of acase.

Responsible campaigning

51 Recognition and derecognition ballotsconcern important, and sometimescomplex, issues. It may help thoseworkers entitled to vote in these ballots toreceive information from the employer andthe union setting out their views on theimplications of recognition and non-recognition. Parties are not required toundertake any campaigning activity duringthis period. Indeed, a party might chooseto desist from campaigning altogetherbecause it wishes to avoid unnecessaryacrimony or because it sees an advantagein employment relations terms in leaving

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factors apply, the employer should notoffer inducements to workers not to attendaccess meetings. For example, where anaccess meeting is held towards the end ofthe working day, the employer should nottell workers that they could go home earlyif they do not attend the union’s meeting.However, unforeseen events may arise -an urgent order, for example - where theemployer may need to require workers notto attend an access meeting, paying themovertime, or some other additionalpayment or fringe benefit, for any extrawork involved. The offer of additional payfor extra work in such circumstances isreasonable. Where such exceptionalevents occur, the employer should explainthe position to the union as soon aspracticable, and offer alternative butcomparable access arrangements for theworkers involved.

49 Where it is practicable to holdmeetings or surgeries at the workplace,the employer should provide appropriateaccommodation, fit for the purpose, whichshould include adequate heating andlighting, and arrangements to ensure thatthe meeting is held in private. In turn, theunion should ensure that business costsand business disruption are minimised.Unions should be aware of the needs ofthe employer to maintain the productionprocess, to maintain a level of service, andto ensure safety and security at all times.

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What are unfair practices?

53 Parties must refrain from using anunfair practice during recognition orderecognition ballots. A party uses anunfair practice if, with a view to influencingthe result of the ballot, the party:

(a) offers to pay money or give money’sworth to a worker entitled to vote in aballot in return for the worker’s agreementto vote in a particular way or to abstainfrom voting;

(b) makes an “outcome-specific” offer to aworker entitled to vote in a ballot. (An“outcome-specific” offer is an offer to paymoney or give money’s worth which isconditional on the issuing by the CAC of adeclaration that the union is entitled to berecognised or is not entitled to berecognised, and such an offer is notconditional on anything which is done oroccurs as a result of the declaration inquestion). Thus, an offer by either a union(or an employer) to pay each worker £100,provided the ballot does (or does not)result in recognition would be categorisedas an unfair practice. In contrast, anundertaking by a union to secure anincrease of £1,000 in the annual pay ofworkers through the collective bargainingprocess following a vote for recognitionwould not be captured because the offerclearly depends on other circumstances –in this case, the negotiation of a collectiveagreement – which is contingent onrecognition being awarded;

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the issue to the workers to decide. ThisCode should not therefore be read asdiscouraging such behaviour. That said,there will be other cases where parties willwish to campaign and such activity canbenefit the balloting process in helping theworkers make informed decisions. Butactive campaigning needs to beresponsible or it can lead to the use ofunfair practices which distort the ballotingprocess, increase workplace friction andcan sour employment relations.

52 Campaigning can expose sharpdivisions of opinion, and ill-judged activitycan damage trust and long-termemployment relations. Parties shouldtherefore discuss with each other at anearly stage how they would wishcampaigning to be undertaken. Thisdiscussion could take place at the sametime the parties seek to reach accessagreements. There are advantages inparties exchanging information about theirapproach to campaigning, indicating forexample those persons or organisationswhich are likely to undertake the activity ontheir behalf. Prior discussion should focusin particular on the standards of conductexpected of campaigners to minimise therisk of intimidation occurring. One way tostructure such joint discussions might befor the parties to discuss how they thinkthe guidance in this section of the Codecould best be applied to their particularsituation. Where they agree standards ofconduct, parties should take steps toensure that those who campaign on theirbehalf are fully aware of them.

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such “money’s worth” for permissiblereasons - for example, as a normalinducement to join a union or as a typicalbonus for meeting a work target – wouldnot be categorised as an unfair practice.

55 Unfair practices can involve the takingof disciplinary action against workers,where such disciplinary action has thepurpose of influencing the result of theballot. The period of ballots is relativelyshort and this lessens the scope fordisciplinary matters to arise. However, it isworth noting that this unfair practice is notlimited just to disciplinary action takenagainst workers entitled to vote in a ballot.It is possible that an unfair practice couldbe committed if, say, disciplinary actionwere taken against a union activistinvolved in the union’s campaign who wasnot entitled to vote in the ballot. Equally,the employer is not prevented from takingany disciplinary action just because a ballotis occurring. There may be sound groundsfor the employer to discipline a worker,which are totally unconnected with theballot. Likewise, it is possible that aworker’s campaigning activity – say, theuse of threatening behaviour against otherworkers or the unauthorised use of worktime for campaigning - may itself give riseto disciplinary action which would notconstitute an unfair practice. Whencontemplating disciplinary action, theemployer should in addition take note ofthe guidance provided in the Acas Code ofPractice on Disciplinary and GrievanceProcedures, especially its advice on thedisciplining of union officials.

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(c) coerces or attempts to coerce a workerentitled to vote in a ballot to disclosewhether he intends to vote or abstain fromvoting in the ballot, or how he intends tovote, or how he has voted, in the ballot ;

(d) dismisses or threatens to dismiss aworker ;

(e) takes or threatens to take disciplinaryaction against a worker ;

(f) subjects or threatens to subject aworker to any other detriment by, forexample, threatening to give a worker alower performance mark or a worsepromotional assessment if he supportsrecognition or non-recognition ; or

(g) uses or attempts to use undueinfluence on a worker entitled to vote in aballot.1

54 The statute refers to the term“money’s worth” when defining an unfairoffer to a worker. The term covers themaking of non-cash offers to workers.Such non-cash offers usually involve theprovision of goods and services, for whichworkers would otherwise need to pay ifthey procured the goods or services forthemselves. Most fringe benefits - say, abetter company car, subsidised healthinsurance or free legal services - wouldnormally fall into this category. In addition,offers to provide additional paid holiday orother paid leave are likely to constitute“money’s worth”. Of course, providing

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1 See paragraphs 27A(2) and 119A(2) of Schedule A1 of theTrade Union and Labour Relations (Consolidation) Act 1992.

who act as officials of the union or who areotherwise authorised to represent theunion in its campaigning work should alsoexplain their role when speaking to otherworkers in their capacity as campaigners.

58 Sometimes, a party might employ orhire a paid consultant to assist itscampaigning work. Such consultants aretherefore acting as agents of the partyinvolved. If their behaviour constitutes anunfair practice, then the party who hiredtheir services is also committing an unfairpractice where the party expressly or byimplication authorised the behaviour. Afailure by a party to repudiate and correctmisconduct by a consultant can be takenas implying that such conduct isauthorised. Parties should thereforemonitor the activities of the consultantsthey hire. Where outside consultants areused by either party, and undertake activecampaigning by speaking to the workforce,then they should inform the workers thatthey have been hired by that party. Theyshould also take steps to inform theworkers accurately about the generalpurpose of their engagement. Whilst thereis no need to divulge commercialconfidences or to detail the precisecontractual remit, if a consultant has beenhired to advance the case of the union orthe employer in the campaign then thatessential fact should be divulged to theworkforce when the consultant iscommunicating with them. It follows thatconsultants should not present themselvesas independent or impartial third partieswhen undertaking their campaigning work.

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56 The statutory list of unfair practiceshighlights actions to bribe, pressurise orexert other undue influence on workers tovote in particular ways or not to vote at all.Such conduct, especially the exertion ofundue influence, can take many forms. Atone extreme, undue influence may takethe obvious form of actual or threatenedphysical violence against workers. It mayalso take other, and more subtle, forms ofbehaviour to influence the outcome of theballot. For example, the introduction ofhigher pay or better conditions in the ballotperiod may constitute undue influence ifthe ballot period is not the normal time forreviewing pay or if there is not some otherpressing reason unconnected with theballot for raising pay.

Who should campaign?

57 Transparency is an important feature ofnormal campaigning activity and reducesthe risk that a worker might be undulyinfluenced through subterfuge ormisrepresentation. So, those authorisedby the employer or a union to campaign ontheir behalf should take steps to inform theworkers involved that they are soauthorised and are therefore acting underinstruction or at the behest of the partyinvolved. Where there is reason to believethat workers do not understand their role,supervisors and line managers whoundertake such work on behalf of theemployer should state that they are actingin that capacity when communicatingcampaign messages to the workforce. Insimilar circumstances, union members

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“surgeries” which individual workers orsmall groups of workers can attend if theywish. That said, the employer or theunion must take particular care whenhandling one-to-one meetings orencounters with small groups, because aworker may feel more vulnerable in thosesituations and undue influence may arise ifa worker feels threatened as a result.Workers should not normally be required toattend small meetings organised by eitherthe employer or the union for campaigningpurposes, and they should not bethreatened with sanctions if they fail toattend. Workers who voluntarily attendshould be informed that they are under noobligation to answer any direct questionswhich are put to them. In particular, theyshould not be required to disclose the waythey have voted or their voting intentions.

62 Most small or one-to-one meetingsoccur at the place of work. But a partymight also try to arrange similarencounters outside the workplace tocanvass opinion by visiting a worker’shome or by ringing a home telephone.When undertaking such activity, unionsshould note that neither the CAC nor thequalified independent person it employs torun the ballot will disclose to the union thenames, addresses or telephone numbersof the workers involved. Whereascanvassing at a worker’s home may be anacceptable practice, reflecting perhapsrestricted access at work, considerablecare needs to be taken by the partyinvolved to avoid possible intimidation,however unintended, which could give rise

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59 The employer and the union are usuallyresponsible for the actions of those whomthey authorise or hire to campaign on theirbehalf. They should therefore take stepsto brief their representatives or agentsaccordingly in advance of undertaking suchactivity. The briefing should not be limitedto just the messages or information whichthe union or employer wish to convey. Itshould also provide clear advice torepresentatives or agents on thebehavioural standards expected of themand the need to avoid actions which couldconstitute an unfair practice.

60 The employer and the union shouldalso dissociate themselves from materialcontaining personal attacks or allegationswhich is circulated on an anonymous basis.The party whose case appears to befavoured by the anonymous materialshould usually repudiate it, informing allworkers in the bargaining unit accordingly.

What are the main forms ofcampaigning?

61 All campaigning involvescommunication with workers in thebargaining unit. Sometimes, thatcommunication can take the form of face-to-face discussion with a worker orworkers. Such encounters can performuseful functions as many workers may feelnervous about asking questions at massmeetings and small scale gatherings mayencourage more open debate. Section Ctherefore refers to the option for unions toaccess the workforce by holding

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that nature. Indeed, because suchcommunication does not require thephysical presence of the campaigner, theymay well be seen as having less potentialto threaten the worker. That said, thecontent of such communications can stillintimidate or threaten the voter, and careshould therefore be taken to avoid sucheffects when drafting writtencommunication or producing videos.

How should campaigners putacross their message?

65 Campaigning is inherently a partisanactivity. Each party is therefore unlikely toput across a completely balanced messageto the workforce, and some over-statement or exaggeration may well occur.In general, workers will expect suchbehaviour and can deal with it. Also, bylistening to both sides, they will be able toquestion and evaluate the materialpresented to them.

66 Campaigning should focus on theissues at stake. These will mostly concernthe workplace, the performance of theunion or the running of the employer’sbusiness. Sometimes, it will be legitimateto focus on the work behaviours andprevious work histories of key individuals.For example, it may be pertinent to refer tothe way a proprietor or a senior managerhas responded to workplace grievances inthe past or to the way a key union officialhas handled negotiations elsewhere. Butcampaigning about the personal lives ofsenior managers or union leaders usually

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to undue influence. Where practicable, aparty should seek and obtain a worker’spermission in advance before visiting himat home. In particular, the number ofpeople visiting a worker’s home tocampaign or canvass, even where priorpermission is obtained, should be limitedto one or, perhaps, two people. If aworker does not wish to open or continuea discussion with the campaigners, thenthat wish must be completely respected.A failure to leave a worker’s premises onrequest would almost certainly be seen asan intimidatory practice. Also, if a workerindicates he does not wish to be revisitedat home, or rung again by telephone, thenthat wish should be respected.

63 The holding of one or two face-to-facemeetings, either on site or off it, may notin itself be perceived as placingunwelcome pressure on the workerinvolved. Indeed, a worker might requestfurther meetings himself to cover theissues fully or to follow up a discussion.However, the frequency of meetings, orfrequent requests to attend meetings, canbe perceived as potentially threatening bysome workers. There may come a pointwhere persistent approaches to workerswill be construed as harassment. Partiesmust therefore be aware that the intensityof their campaigning activity can give riseto problems.

64 Campaigning can also be undertakenby circulating information by e-mails,videos or other mediums. There is nothingintrinsically wrong with communication of

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68 Part of a party’s normal campaigning isto engage with the arguments put forwardby others. That can be helpful and canassist workers in understanding the issuesat stake. Each party will therefore try toobtain the campaigning literature of theother party to enable them to discuss thepoints raised. This should not normallypresent a problem as literature tends to bewidely available either on websites, noticeboards or elsewhere. Indeed, parties mayoften find it mutually advantageous toexchange these materials.

69 Campaigning meetings should betreated as far as possible as private affairs,and there are legislative requirementscovering the privacy of access meetings atwork (see paragraphs 43 – 47 in SectionD). Meetings or other campaigningactivities which occur off-site are generallynot covered by the access provisions, butthe privacy of those gatherings should berespected. A party should not infiltratemeetings or use other covert methods tomonitor another party’s campaign. It isalso likely to constitute an intimidatorypractice for parties to photograph, recordor otherwise place workers undersurveillance without permission whilst theyare undertaking campaigning or attendingcampaigning events off-site, unless suchactivity takes place at a location (forexample, the entrance to a workplace)where surveillance equipment normallyoperates for other legitimate reasons.Parties should also not penalise workers,or threaten to penalise them, if they attendor take part in those off-site activities.

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adds nothing beneficial to the discussion ofthe issues and should be avoided.Personalised attacks and the denigration ofindividuals may also harm the long-termhealth of employment relations.

67 Parties, especially the employer, shouldtake particular care if they discuss joblosses or the relocation of businessactivity. Such statements can be seen asdirectly threatening the livelihoods of theworkers involved, and can give rise toundue influence by implicitly threatening toharm the workers concerned. It is a fineline, therefore, to distinguish between faircomment about job prospects andintimidatory behaviour designed primarilyto scare the workers to vote againstrecognition. In general, references to jobprospects are more likely to constitute faircomment if they can be clearly linked tothe future economic performance of theemployer with or without unionrecognition, and are expressed inmeasured terms. Unsubstantiatedassertions on this particularly sensitiveissue should therefore be avoided. So, itmight be fair comment to argue that theemployer’s business may run lesssuccessfully if recognition is awarded, andemployment may be less secure as aresult, because pay levels would rise orwork would be organised less flexibly. Onthe other hand, statements that theemployer will make redundancies orrelocate simply because a union isrecognised should be avoided.

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meeting between the union and theworkers constituting the bargaining unitand (ii) is not reasonable in thecircumstances; and

e) to refrain from taking or threateningto take any action against a workersolely or mainly on the grounds that he(i) attended or took part in any relevantmeeting between the union and theworkers constituting the bargainingunit, or (ii) indicated his intention toattend or take part in such a meeting.

and the ballot has not been held, the CACmay order the employer to take such stepsto remedy the failure as the CAC considersreasonable, and within a time that the CACconsiders reasonable. Where the CAC isasked to make an order very shortly beforethe end of the access period, it may beimpracticable for the CAC to consider therequest and for the employer and theunion to remedy any failure in the shorttime before the ballot is held. In suchcircumstances, the CAC may extend theaccess period by ordering the ballot to berescheduled for a later date to ensure thataccess is achieved.

72 If the employer fails to comply with theCAC’s order within the time specified, andthe ballot has still not been held, the CACmay issue a declaration that the union isrecognised, or that the union is notderecognised.

73 It is the employer’s duty to providereasonable access, and complaints about afailure to provide such access can be made

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SECTION F

RESOLVING DISPUTES

Intervention by the CAC

Access

70 Disputes may arise between theparties during the access period about thefailure to allow reasonable access or toimplement access agreements. If thesedisputes cannot be resolved, the unionmay ask the CAC to decide whether theemployer has failed to perform hisstatutory duties in relation to the ballot.

71 If the CAC is satisfied that theemployer has failed to perform one ormore of his five duties:

a) to co-operate generally with theunion and the independent person onthe ballot;

b) to give the union such access to theworkers constituting the bargaining unitas is reasonable to inform them of theobject of the ballot and to seek theirsupport and opinions;

c) to provide the CAC with the namesand home addresses of those workers;

d) to refrain from making any offer toany or all of the workers constitutingthe bargaining unit which (i) has or islikely to have the effect of inducing anyor all of them not to attend any relevant

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• issue a remedial order to the partyconcerned to take such action as itspecifies and within a timetable itspecifies to mitigate the effect of theunfair practice, and /or

• give notice to the parties that it intendsto hold a fresh secret ballot (and therebyreplace any which may have beencontaminated by the unfair practice).

77 Where a party either (i) fails to complywith a remedial order or (ii) has committed asecond unfair practice in relation to the ballot(or a re-run ballot) or (iii) has committed anunfair practice involving the use of violenceor the dismissal of a union official, the CACmay take other sanctions against that party.Where that party is the union, the CAC maydeclare that the union is not entitled to berecognised. Where that party is theemployer, the CAC may declare that theunion is entitled to be recognised 2.

Minor disputes

78 Some disputes about access may beminor by nature. For example, theemployer may be aggrieved that an accessmeeting has over-run somewhat. Or aunion might have cause to complain if itregards the meeting room provided by theemployer as being too small toaccommodate everyone in comfort. In suchcases, both parties should avoid takinghasty action which might prejudice theimplementation of other accessarrangements. The union should generallyavoid taking minor complaints about accessto the CAC as a first course of action.

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by unions only. However, in decidingwhether the employer has complied withhis duty to give the union access, the CACmay take into account all relevantcircumstances. This may include thebehaviour of the union. The CAC maytherefore decide that the employer hascomplied with the duty in circumstanceswhere, because the union has actedunreasonably, he denies the union accessor refuses to implement agreed accessarrangements.

Unfair Practices

74 Complaints may also surface that aparty has committed an unfair practiceduring the balloting period. Suchcomplaints may be referred by theemployer or the union to the CAC toadjudicate though any complaints must bemade either before the ballot closes or onthe first working day after that. Wheretime permits, it is a good practice for theparties to try to resolve them locally in thefirst instance.

75 The CAC must decide that a complaintis well-founded if the party complainedagainst used an unfair practice and theCAC is satisfied that the practice changedor was likely to change, in the case of aworker entitled to vote in a ballot either (i)his intention to vote or to abstain fromvoting or (ii) his intention to vote in aparticular way or (iii) how he voted.

76 Where it considers a complaint is well-founded, the CAC must issue a declarationto that effect, and it may

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2 There are other sanctions which apply in the special casewhere a worker has applied to the CAC to derecognise a union.

can prevent repetitions of such behaviourand thereby ensure that unnecessarydisputes are avoided.

82 It should be noted that a complaint tothe CAC about an unfair practice is unlikelyto succeed if it relates to minor aberrationsin conduct because such matters are veryunlikely to have influenced votingbehaviours or intentions. So, for example,a campaigner’s use of strong language orswearing (which, perhaps regrettably, iscommonplace inside many workplaces andoutside them as well) may not in itselfconstitute the basis for a well-foundedcomplaint.

The independent person

83 The prime duties of the independentperson are to ensure that:

• the names and addresses of theworkers comprising the ballotingconstituency are accurate;

• the ballot is conducted properly and insecret; and

• the CAC is promptly informed of theballot result.

It is not the function of the independentperson to adjudicate disputes about accessor unfair practices. That is the CAC’s role.However, the independent person may havewide experience and knowledge of ballotingarrangements in different settings. Theparties might consider informing theindependent person about their problemsand draw on his experience to identifypossible options to resolve their difficulties.

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79 Instead, the parties should make everyeffort to resolve the dispute betweenthemselves. They should make full use ofany mechanism to resolve such disputeswhich they may have established in theaccess agreement, and consider the use ofAcas’s conciliation services. It wouldgenerally be a good practice if both theemployer and the union nominated a personto act as their lead contact if disagreementsor questions arose about theimplementation of access arrangements.

80 The period of access will be limited induration, given that the balloting period willnormally be a maximum of 20 workingdays, and the parties should thereforeensure that disputes are swiftly resolved.The parties should endeavour to informeach other immediately if a dispute arises,and should seek to resolve any disputes asa matter of priority, preferably within oneworking day of their occurrence.

81 It is also a good practice to followsimilar procedures in cases where thereare complaints about a person’s conductwhilst campaigning. For example, somecomplaints will be based on amisunderstanding which can be resolvedquickly between the parties. And in caseswhere minor offence has been caused as aresult of a careless or unintended remark,then the matter may be simply remediedby the issuing of an apology. Regular andearly communication between the partiesabout the poor behaviour by individualcampaigners may also ensure that seniorfigures on the union and employer sides

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Head OfficeBrandon House180 Borough HighStreetLondonSE1 1LW

020 7210 3613

LondonEuston Towe286 Euston RoadLondonNW1 3JJ

020 7396 0022

East of EnglandRoss HouseKempson WaySuffolk Business ParkBury St EdmondsSuffolkIP32 7AR

01284 774 500

East MidlandsLancaster House10 Sherwood RiseNottinghamNG7 6JE

0115 985 8253

West MidlandsWarwick House6 Highfield RoadEdgbastonBirminghamB15 3ED

0121 456 5434

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OTHER USEFUL GUIDANCEBOOKLETS AND ADDRESSES

The following booklet on employment andtrade union legislation can be obtained freeof charge from the Department of Tradeand Industry website:www.dti.gov.uk/er/regs.htm:

Union membership: Rights of membersand non-membership rights (PL 871)

The following publications can be obtainedfrom Acas Publications, PO Box 235,Hayes, Middlesex, UB3 1DQ (Orderline tel08702 429090, fax 020 8867 3225, e-mailacas@eclogistics.co.uk):-

Acas Code of Practice 1 - Disciplinaryand Grievance Procedures

Acas Code of Practice 2 - Disclosure ofInformation to Trade Unions forCollective Bargaining Purposes

Acas Code of Practice 3 - Time Off forTrade Union Duties and Activities

The addresses and telephones numbers ofAcas Offices are listed below. Thesedetails are correct at time of printing, butare liable to change in the future. A list ofcurrent Acas offices can be found at theAcas website at www.acas.org.uk.

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Northwest RegionCommercial Union House2-10 Albert SquareManchesterM60 8AD

0161 833 8500

Pavilion 1The MatchworksSpeke RoadSpekeLiverpoolL19 2PH

0151 728 5600

North EastCross HouseWestgate RoadNewcastle upon TyneNE1 1TL

0191 269 6000

Scotland151 West George StreetGlasgowG2 7JJ

0141 248 1400

South WestThe WaterfrontWelshbackBristolBS1 4SB

0117 906 5200

South EastSuites 3-5Business centre1 - 7 Commercial RoadPaddock WoodKentTN12 6EN

01892 837 273

Westminster HouseFleet RoadFleetHantsGU13 8PD

01252 816 650

Wales3 Purbeck HouseLambourne CrescentLlanishenCardiffCF4 5GL

029 2076 2636

Yorkshire & HumberThe Cube123 Albion StreetLeedsLS2 8ER

0113 205 3800

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The Central ArbitrationCommittee (CAC) canbe contacted at:

PO Box 51547LondonSE1 1ZG

020 7904 2300

Website:www.cac.gov.uk

2Printed in the UK on recycled paper with a minimum HMSO score of 75. First published September 2005. Department of Trade and Industry. www.dti.gov.uk/

© Crown Copyright. DTI/Pub 7955/20k/09/05/NP. URN 05/1463