LIDL Ltd, R (on the application of) v Central Arbitration Committee & Anor

When deciding whether a proposed bargaining unit is appropriate, the CAC must assess the proposed unit rather than search for the best possible unit. It must give primary weight to compatibility with effective management and take the specified statutory matters into account so far as they do not conflict with that need.

The desirability of avoiding small fragmented bargaining units may be relevant even where recognition would create the first bargaining unit in the undertaking. The CAC must consider risks including proliferation, unclear boundaries and exclusion of workers whose work is not materially different. A decision read as a whole may adequately address a submission without answering it in the claimant’s preferred terms.

Lidl Ltd sought judicial review of a decision of the Central Arbitration Committee determining that warehouse operatives in specified sections at Lidl’s Bridgend regional distribution centre formed an appropriate bargaining unit under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992.

Lidl alleged that the CAC had misconstrued the statutory reference to avoiding small fragmented bargaining units, failed to give adequate reasons concerning job and geographical segmentation, and failed to consider a previous CAC decision and a dictionary definition. The central questions were whether the CAC had applied the statutory test correctly and whether its reasoning and consideration of relevant matters were legally adequate.

1. Outcome. Permission to apply for judicial review was granted at the rolled-up hearing, but the claim was dismissed on the merits. The CAC had made no error of law.

2. Statutory approach. Under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, the CAC must decide whether the proposed bargaining unit is appropriate. It must first consider compatibility with effective management. It must then take the listed matters into account so far as they do not conflict with that need, including the desirability of avoiding small fragmented bargaining units and the object in paragraph 171 of encouraging fair and efficient workplace arrangements.

3. Fragmentation. Paragraph 19B(3)(c) is not concerned with size alone. The reference to small fragmented units permits consideration of adverse consequences that recognition may create even where there is only one existing unit. Relevant concerns may include proliferation of further units, unclear or non-self-contained boundaries, and exclusion of workers whose work is not materially different. The CAC had not interpreted the provision as requiring more than one existing bargaining unit.

4. Reasons and double segmentation. The CAC addressed location by considering the regional management structure and addressed job description by considering the distinct group, separate contract and limited transfers of warehouse operatives. Its reasons adequately explained why the proposed unit was compatible with effective management, despite being defined by both job description and location.

5. Material considerations. A different CAC decision, turning on its own facts, was not material to the present factual assessment. The CAC had considered Lidl’s standardised policies and the ability to accommodate exceptions. It was not required to consider a dictionary definition where it had engaged with the statutory words and the evidence concerning the proposed unit’s size and fragmentation.

First-instance judicial review proceedings. Ouseley J ordered a rolled-up hearing. Permission was granted, but the substantive claim was dismissed by the High Court (Administrative Court).