The Boots recognition saga — why the statutory recognition procedure is ‘unfit for purpose’




Just how much scope there is for a recalcitrant employer to resist an application for statutory recognition is illustrated by ongoing litigation involving pharmacists at high street chemist Boots. Boots has gone to extraordinary lengths to avoid recognising an independent union, the Pharmacists Defence Association Union (PDAU), who want to collectively bargain wages and other terms and conditions for Boots pharmacists. 




Once Boots discovered that PDAU intended to apply for statutory recognition, the retailer took immediate steps to stop this by exploiting loopholes in the recognition procedure. Boots secretly signed a “sweetheart deal” with an organisation known as the Boots Pharmacists Association (BPA). The BPA was refused a certificate of independence by the Certification Officer who described it as open to being “dominated or controlled” by Boots, but this did not stop it being lawfully recognised.


Under its written recognition agreement, the BPA was recognised by Boots for collective bargaining, but only over “union facilities and the bargaining machinery”. On all other issues, including the core elements of any collective bargaining agenda, pay, holidays and hours, Boots’ only obligation was to “consult” the BPA. 




In a ruling describing Boots’ behaviour as “disingenuous” and “deliberately misleading”, the CAC relied on the decision of Demir v Turkey (see page 130) to rule that the right to bargain collectively must include at least pay, hours and holidays. Mere recognition over union facilities was not good enough. The recognition procedure breached Article 11 of the European Convention on Human Rights (ECHR), said the CAC, by allowing an employer to defeat an application for statutory recognition by an independent union by relying on a pre-existing agreement that did not allow for collective bargaining on these key elements (PDAU v Boots Management Services (TURI/823/2012).



Boots challenged the CAC’s ruling through a judicial review. The Administrative Court judge hearing the judicial review was initially sympathetic to PDAU’s case, inviting the union to apply for a declaration of incompatibility with the ECHR (R (on the application of Boots Management Services Limited v CAC and the PDAU [2014] EWHC 65 (Admin)).
However, after a direct intervention by the secretary of state, the judge changed his mind and refused the declaration, ruling that he was satisfied that the statutory recognition procedure did not infringe Article 11. 




The basis for this change of heart was that under Part VI, Schedule A1, TULRCA, Paragraphs 134-137 (Derecognition where union not independent), an independent union can gain recognition where a non-independent union (such as the BPA) has been recognised by the employer if it can persuade just one worker in the bargaining unit of the sweetheart union to launch statutory derecognition procedures. Given the availability of this course of action, the judge ruled out a declaration of incompatibility with human rights law. 


The judge conceded that this step carried a genuine risk of reprisal but relied on the availability of statutory rights to protection from detriment or dismissal in connection with union recognition (TULRCA, Part V1 of Schedule 1A, paras 156-161) and concluded that given this statutory protection, the procedure did not infringe Article 11. An appeal to the Court of Appeal was dismissed in February 2017 (PDAU v Boots Management Services Limited and Secretary of State for Business, Innovation and Skills [2017] EWCA Civ 66).
 


In July 2017, a group of six Boots pharmacists, backed by PDAU, launched a formal application for derecognition of the BPA — the first ever case of its kind. Over 1,000
Boots pharmacists pledged support for the application over just 40 days. The application is for a secret ballot to determine the support for derecognition. Although the application can be launched by just one member of the bargaining unit, to be valid, the CAC must be satisfied that:


• at least 10% of the bargaining unit want to end current bargaining arrangements with the BPA; and


• a majority would be likely to vote for this. 


In November 2017, the CAC ruled that the six pharmacists had produced sufficient evidence of support, and accepted PDAU’s application for a de-recognition ballot. Next, the CAC invited the parties to negotiate to end the current bargaining arrangements. 


Unsurprisingly, Boots fought on, and in February 2018, a further contested hearing took place to decide on the correct bargaining unit under the existing BPA recognition agreement. This needed to be established because only members of the BPA bargaining unit are entitled to vote whether to end the current arrangements. Backed by Boots, the BPA argued that those entitled to vote included not only pharmacists, but also Boots senior managers who have retained their BPA membership and their pharmacist registration, although they no longer worked as pharmacists. In a victory for PDAU, the CAC disagreed, fixing the bargaining unit for the derecognition vote as: registered and pre-registration level 5,6 and 7 pharmacists employed by Boots, and nobody else. These are the pharmacists who mainly have patient-facing roles and not senior management (Parker & Others v Boots Pharmacists Association and Boots Management Services Limited Case No. TUR6/003/2017, 15 November 2017 and 16 February 2018). 


The next step will be the secret ballot on ending the current arrangements. For PDAU to succeed, the secret ballot for derecognition must be supported by a majority of those voting and at least 40% of the pharmacists in the bargaining unit. If the derecognition claim succeeds, PDAU must make a renewed application for statutory recognition, in a separate process.