The Court of Appeal Decision
Three senior judges from the Court of Appeal have now handed down their judgment in the long running court battle between the PDA Union (PDAU) and Boots Management Services Ltd (Boots) thus clarifying the law.
The 40-page judgment describes 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 PDAU.
The conclusion reached is that any barriers to collective bargaining by the PDAU caused by the blocking agreement reached between Boots and the Boots Pharmacists’ Association (BPA) (which forbids any negotiations on the pay and conditions of Boots pharmacists) can be overcome through an application by Boots pharmacists to derecognise the BPA.
The PDAU is considering the implications of the judgment and will contact affected members in due course.
Mark Koziol, Assistant General Secretary of the PDAU said;
“Holding Boots to account over its business behaviours and its treatment of pharmacists is vital after the public outcry following the Guardian article last April which exposed unacceptable working conditions and the impact this has on patients. This undoubtedly brought shame upon our profession.
The Guardian episode should have made a difference. However, even after strong views were expressed by MPs in Parliament about the need for regulatory action, the GPhC, a body established to protect the interests of the public has refused to take appropriate action against Boots, claiming that the GPhC is only peripheral to the issue of working environments.
The court has now clarified that the only way Boots pharmacists can have their collective bargaining rights represented by the PDAU is by seeking the de-recognition of the BPA. This was not our preferred outcome, but we were surprised to hear both Boots’ and government lawyers arguing that this is the only way forward throughout the legal process.
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.”
Background
The formal process for seeking union recognition on behalf of pharmacists working for Boots began in 2012. The application by the PDAU received widespread support from Boots pharmacists who wanted the PDAU to collectively bargain with their employer over important topics including pay, hours and holidays.
Boots were opposed to granting recognition to the PDAU and reached a last-minute agreement with the Boots Pharmacists Association (BPA), its own in-house union, this was described by the legal press as a ‘sweetheart union deal’. This agreement included collective bargaining but only over inconsequential topics such office facilities for the BPA executive. Of concern was that the BPA agreement specifically excluded any negotiations over pay, hours and holidays.
The effect and purpose of the agreement between Boots and the BPA was to block the PDAU’s application and meant that Boots pharmacists were completely prevented from having their pay, hours and holidays negotiated on their behalf by any union. This deal between Boots and the BPA then led to a series of court challenges to clarify whether the rights of Boots pharmacists to collectively bargain over their pay, hours and holidays could be denied by such an unusual agreement.
On behalf of its members the PDAU argued that the agreement had the effect of breaching pharmacists’ Article 11 human rights and was not valid. The Central Arbitration Committee (CAC), who are the independent government appointed adjudicator in such matters, agreed with the PDAU and allowed the union application to proceed on the basis of the panel’s interpretation of UK and European legislation. In response, Boots sought a Judicial Review of the CAC’s decision and its lawyers argued that there was no human rights breach and the PDAU could overcome any barriers to recognition by seeking to derecognise the BPA. After series of hearings which included intervention by government lawyers who also supported Boots position, the decision of the CAC was set aside and the recognition process halted.
The PDAU decided to appeal the outcome of the Judicial Review because of the complex and contradictory nature of the legislation, which does not give the union the practical ability to seek derecognition of the BPA, as this can only be done by Boots employee pharmacists.