British Broadcasting Corporation, R (on the application of) v Central Arbitration Committee

Judicial review of a Central Arbitration Committee decision under the statutory recognition scheme is confined to irrationality or error of law. Whether a group exercises a profession is principally a factual and evaluative question for the specialist Committee.

For the purposes of section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992, professional activity cannot be made dependent on the existence of a regulatory body. Regulation may be a powerful, or in an appropriate case significant, feature, but it is not an essential requirement. The Committee must assess all relevant characteristics and may consider the group collectively when deciding whether it comprises workers.

The BBC sought judicial review of a panel decision of the Central Arbitration Committee concerning an application by the Broadcasting Entertainment Cinematograph and Theatre Union for recognition in respect of wildlife cameramen and women working for the BBC Natural History Unit.

The panel concluded that the individuals were workers under section 296(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992, and that individuals on the BBC’s Contacts List could be regarded as seeking work for the purposes of the statutory recognition procedure. The BBC argued that the panel had erred in law by treating regulation by a professional body as essential, had adopted an impermissible group approach, and had insufficient evidence concerning individual workers.

The central issue was whether the panel had unlawfully construed the professional exception or otherwise acted outside the permissible scope of its specialist judgment.

1. The application was allowed. The CAC’s decision was quashed and the matter was remitted to a different panel.
2. The statutory recognition procedure under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 is intended to be informal, speedy and conducive to good industrial relations. The CAC is a specialist body. The court should intervene only for irrationality or error of law.
3. Section 296 requires a distinction between personal performance of work or services and such performance in the exercise of a profession. The Act supplies no comprehensive definition or fixed criteria. The CAC must consider the circumstances and characteristics of the activity and decide what weight to give them.
4. The panel erred by treating regulation by a supervisory or professional body as an essential requirement of professional activity. The existence of such a body may be powerful evidence, and its absence may be significant where other features point in both directions, but it is not a necessary condition. The error materially affected the decision.
5. The court rejected dependence on a particular contracting party as a useful test in the context of collective bargaining. Dependence may be relevant to legislation conferring individual rights, but the collective bargaining scheme requires the statutory distinction between workers and professionals to be applied.
6. The panel was entitled to decide the “seeking to work” issue on the evidence that those on the Contacts List wished to be offered work. It was also entitled to examine the proposed bargaining unit as a group. It was not required to investigate every individual’s circumstances or require individual cross-examination. The question whether particular persons should be excluded could arise later when determining the appropriate bargaining unit.
7. There was no order as to costs against the CAC. The BBC was awarded half its costs against the interested party, subject to the detailed assessment described by the court.

The judgment was a first-instance judicial review decision. The court quashed the Central Arbitration Committee panel’s decision and directed reconsideration by a different panel.