Judicial Review and Appeal – 2013 to 2017

Following the CAC's decision in January 2013, Boots called for a judicial review, which was held in December 2013.

The High Court concluded in January 2014, in an interim decision, that Boots had no obligation to recognise the PDA Union because its agreement with the BPA could block the application under UK law. He found that in seeking to interpret the statute in a way that was consistent with the Human Rights Act, the CAC had construed or “read down” the statutory scheme further than was permissible in the light of the House of Lords precedent relied upon. link The judge did, however, invite the PDA Union to make an application for a declaration of incompatibility of UK law with the European Convention on Human Rights.link link

The application for a declaration of incompatibility was lodged by the PDA Union in July 2014, which stimulated the government to object that it had not been involved in such an important matter, which could have changed employment law for all workers in the UK. It sought a full hearing, which was granted.link

Following a hearing on 23 July 2014, on 12 September 2014, after representations from government (the Secretary of State for Business, Innovation and Skills), judge Sir Brian Keith decided not to grant the application for the declaration of incompatibility. link link link He commented:

It hardly needs to be said, but Boots’ success on its claim may prove to be a pyrrhic victory. It is now open to the PDAU through one of Boots’ pharmacists to apply to the CAC for the ending of the bargaining arrangements between Boots and the BPA.

Judge Sir Brian Keith

Appeal

The PDA Union appealed the court’s decision because of the complex and contradictory nature of the legislation, which does not give it the ability to seek derecognition of the BPA. This could only be done by Boots pharmacists. On 10 February 2017, three senior Court of Appeal judges issued a 40-page judgment describing the mechanism required for Boots pharmacists to secure collective bargaining in order to have their pay, hours and holidays negotiated on their behalf by the PDA Union.link

The conclusion was that any barriers to collective bargaining by the PDA Union caused by the blocking agreement reached between Boots and the Boots Pharmacists’ Association (BPA) (which forbids any negotiations on the pay and other terms and conditions of employment) could be overcome through an application by Boots pharmacists to derecognise the BPA.

This was not our preferred outcome, and we were surprised to hear both Boots and government lawyers arguing throughout the legal process that this is the only way forward.

Having exhausted all options, Boots pharmacists have now initiated the derecognition of the BPA.

Mark Koziol, Assistant General Secretary of the PDA Union said:

Boots has invested significant resources to try and keep the PDAU away from its pharmacist employment conditions, I believe that it knows that we would be energetic in seeking to hold it to account over its handling of Boots pharmacists. In the absence of any effective intervention from the regulator, a collective bargaining agreement held by the PDAU is now the only practical way for Boots pharmacists to have their interests protected.

Mark Koziol, PDA Union Assistant General Secretary

The Pharmacists' Defence Association is a company limited by guarantee. Registered in England; Company No 4746656.

The Pharmacists' Defence Association is an appointed representative in respect of insurance mediation activities only of
The Pharmacy Insurance Agency Limited which is registered in England and Wales under company number 2591975
and is authorised and regulated by the Financial Conduct Authority (Register No 307063)

The PDA Union is recognised by the Certification Officer as an independent trade union.

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