R (Cable & Wireless Services UK Ltd) v Central Arbitration Committee & Anor

The Central Arbitration Committee has a broad discretion when deciding whether a proposed collective-bargaining unit is appropriate under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. It must take the specified matters into account, giving particular weight to compatibility with effective management, but Parliament has not prescribed how the competing factors must be balanced.

Judicial review is limited to irrationality or error of law. The court must not reweigh evidence or substitute its view of the appropriate unit. A small unit is not necessarily a fragmented unit. The relevant question includes whether the proposed unit is self-contained and whether its creation is likely to lead to proliferation of other bargaining units.

The claimant sought judicial review of the Central Arbitration Committee’s decision of 7 September 2007. The Committee had confirmed that a bargaining unit comprising all United Kingdom field-service employees, except managers, was appropriate for collective bargaining under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992.

The challenge was limited to an alleged error of law concerning paragraph 19B(3)(c), particularly the meaning and application of a small fragmented bargaining unit. The central issue was whether the Committee had applied an impermissibly narrow test and failed properly to address the claimant’s evidence about fragmentation, overlapping occupational groups and possible proliferation.

Claim dismissed. The Committee was an expert body entrusted with a wide discretion. Under paragraph 19B, it had to take the specified matters into account, subject to the priority given to compatibility with effective management, but it was not required to follow a prescribed method of weighing them.

1. The court’s supervisory jurisdiction was confined to irrationality and error of law. Irrationality included failure to consider a material matter or taking an irrelevant matter into account where the result might have been affected. The court could not undertake the Committee’s evidential balancing exercise or entertain a merits challenge presented as judicial review. The approach in R (Kwik-Fit GB Ltd) v CAC [2002] ICR 1212 supported that limited intervention.
2. The Committee was concerned only with whether the union’s proposed unit was appropriate. It could not reject that unit merely because another unit appeared more appropriate, or decide whether it was the most effective or desirable unit.
3. Paragraph 19B(3)(c) did not make numerical smallness equivalent to fragmentation. A unit could be small without being undesirable unless it was also fragmented. Fragmentation involved the absence of an obvious boundary and the risk that recognition would leave scope for further units, producing proliferation detrimental to effective management.
4. Although the Committee’s description of fragmentation would have been too narrow if intended as a general definition, the reasons had to be read in context. The Committee had addressed the claimant’s concerns about other directorates, overlapping work and cooperation between teams. Its conclusion that the proposed unit had a stable occupational and organisational identity was open to it on the evidence.
5. The Committee’s reasons were not to be read as a statute. A reasons challenge would rarely succeed where it was clear what the decision-maker had accepted and rejected. No error of law or irrationality was shown, and the claim was dismissed.

First-instance judicial review in the Administrative Court. The claim challenged the Central Arbitration Committee’s decision of 7 September 2007. The claim was dismissed.