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Judge rules in Boots favour following Government intervention

A judge has rejected the application of the PDAU which would have enabled it to seek changes to the law in Parliament.

Mon 15th September 2014 PDA Union

The Judge who invited the PDA Union to make an application for a declaration of incompatibility which could have changed the law so as to lead to the formal recognition of the PDAU by Boots, has had a change of heart following the government’s direct representations at the hearing which was to decide the issue. He has rejected the application of the PDAU which would have enabled it to seek changes to the law in Parliament.

The hearing to seek the declaration of incompatibility was the most recent in a long line of legal proceedings to decide the issue as to whether Boots pharmacists could have their terms and conditions of employment negotiated on their behalf by a union of their choice. Something that Boots has consistently resisted.

In the initial stages the PDAU made an application to the Central Arbitration Committee (CAC) for formal recognition because Boots had refused its voluntary application claiming it did not need to grant recognition because it already had an agreement with Boots Pharmacists Association (BPA). During one CAC hearing, a Boots Director conceded that one intended consequence of the agreement with the BPA was that it blocked the PDAU’s efforts to negotiate on terms and conditions. The CAC ruled that it would allow PDAU’s application because the Boots; BPA agreement in specifically excluding any negotiations on salary and holiday had in effect breached the human rights of all pharmacists who were now barred from holding such negotiations with their employer. Boots challenged the decision of the CAC and took it to a Judicial Review.

Prior to the Judicial Review hearing, the CAC, using a statutory process which allowed them to compare the membership lists of the PDAU with the full employee pharmacist list provided to them by Boots and also using other measures, decided that the PDAU was likely to receive the support of more than 50% of all Boots pharmacists if a ballot was to be held.

In his interim Judicial Review decision earlier this year the Judge had said that he was of the opinion that the agreement between Boots and the BPA had potentially breached the human rights of pharmacists but that the UK law as it stood allowed them to do so because it was not yet compatible with the European Human Rights Convention. The judge therefore invited the PDAU to make an application for a ‘declaration of incompatibility’ of the British and European law. Between the time of this invitation and the hearing to decide upon the declaration of incompatibility, the Ministry of Business Industry and Skills (BIS) got involved in the matter and lawyers from the Treasury attended the most recent hearing. This intervention appears to have been crucial in the outcome of the case.

All the way through these proceedings, Boots had argued that the law did not need to be changed, PDAU could merely use a formal process to seek a de-recognition of the Boots Pharmacists Association.

This argument was initially used by Boots, when they were at the CAC in 2012, it was also used at the initial Judicial Review in 2013.

Boots referred again to the de-recognition of BPA argument at the most recent hearing on the ‘declaration of incompatibility’. At this hearing, the government relying on several legal arguments also indicated that the PDAU could seek to de-recognise the BPA and that it was strongly opposed to any change in the law. Although he had previously not been supportive of the view that the PDAU could seek to de-recognise the BPA the Judge reversed his view and in his determination he said;

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 to apply to the CAC for the ending of the bargaining agreements between Boots and the BPA”

John Murphy the General Secretary of PDA Union said on hearing the news;

“Throughout the various stages of the proceedings, both at the Central Arbitration Committee stage and in the initial Judicial Review, Boots had argued that the PDAU could merely seek to derecognise the Boots Pharmacists Association to gain recognition. The irony is that Boots on the one hand had claimed that it did not wish to recognise the PDAU because it had such an excellent relationship with the BPA, whilst on the other hand it argued that the PDAU could seek to de-recognise the BPA. It has gone to great lengths to avoid having to negotiate with anyone on the terms and conditions of its pharmacists. We have always taken the dignified position not to follow this path. Our quarrel was not with the BPA, we simply believe that Boots pharmacists should not have the right to have their terms and conditions negotiated by a union taken away from them by their employer. We believe that this is a breach of their human rights”.

He continued,

“Even though the judge confirmed in his interim Judicial Review determination that the legislation as it stands currently does breach their rights under EU Human Rights legislation the government intervention in support of Boots seems to have tipped the scale.

Mr Murphy confirmed that the PDA Union intends to appeal the decision and that it is likely that this matter may have to be heard at the European Court of Human Rights.

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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