The Pharmacists' Defence Association Union v Secretary of State for Business Innovation and Skills

The right to bargain collectively is an essential element of the freedom of association protected by article 11 of the Convention. Domestic restrictions upon access to compulsory collective bargaining must therefore rest on relevant and sufficient reasons and strike a fair balance between the competing interests. States nevertheless enjoy a wide margin of appreciation in designing recognition procedures.

A statutory bar arising from an employer's recognition of a non-independent union was compatible with article 11 because workers had a reasonably practicable route to derecognise that union. For this purpose, recognition under Part VI of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 extends to every recognition arrangement capable of triggering the statutory bar, even where bargaining concerns only limited matters.

The appellant was an independent trade union with substantial membership among pharmacists employed by Boots. It sought statutory recognition for collective bargaining under Part I of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992. Boots had meanwhile recognised a non-independent staff union for negotiations concerning union facilities and consultation machinery.

Paragraph 35 of Schedule A1 made the appellant's application inadmissible because a collective agreement already recognised another union for workers in the proposed bargaining unit. The Central Arbitration Committee read paragraph 35 down and admitted the application. On judicial review, Keith J quashed that decision because the proposed construction was unavailable, although he initially considered the statutory position incompatible with article 11.

After a further hearing, Sir Brian Keith dismissed the appellant's claim for a declaration of incompatibility. He held that workers could use Part VI of Schedule A1 to derecognise the non-independent union and thereby remove the paragraph 35 obstacle. The appeal concerned the scope of article 11 and whether that derecognition procedure provided an adequate and practicable route to recognition.

1. Appeal dismissed. The recognition of a right to bargain collectively as an essential element of article 11 meant that a complaint about the absence or inadequacy of compulsory-recognition machinery fell within the article's scope. It did not create a universal right for every union to obtain recognition in all circumstances. Restrictions imposed by a domestic recognition scheme required relevant and sufficient reasons and a fair balance between competing interests, while the state enjoyed a wide margin of appreciation: [2017] EWCA Civ 66, paras 54–55.

2. A claimed right merely to enter the statutory procedure could not be separated from the outcome sought through that procedure. The appellant's purpose was to obtain a decision obliging the employer to negotiate. A union could not possess a right to negotiate unless the employer was correspondingly obliged to negotiate: para 53.

3. Part VI of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 applied to the limited recognition agreement. Although paragraph 136 excluded the definition in section 178(1), paragraph 134(1)(a) had to be read in its statutory context. Part VI was intended to enable workers to escape the consequences of representation by a non-independent union. Those consequences included the paragraph 35 bar preventing a supported independent union from pursuing recognition: paras 59–61.

4. Accordingly, whatever amounted to recognition for paragraph 35 also amounted to recognition for Part VI. The expression covered negotiations on any matters which the parties had agreed should be the subject of collective bargaining. That construction followed ordinary domestic principles. If necessary, section 3 of the Human Rights Act 1998 would support the same construction because the absence of an available derecognition procedure would breach article 11: paras 61–62.

5. Article 11 did not require the union itself to control every stage of the recognition scheme. It was legitimate for an application to derecognise a non-independent union to be entrusted to workers, for whose benefit recognition was ultimately sought. The relevant question was whether a reasonably practicable route existed by which recognition could be achieved if a majority of workers wanted it: para 66.

6. The requirement that an individual worker initiate derecognition was not a substantial practical obstacle. If the appellant could not find one willing pharmacist, that would overwhelmingly indicate insufficient support for its ultimate recognition application. Statutory protection against detrimental treatment further supported the adequacy of the route: paras 64–67. Article 11 could not be used to challenge every arguably sub-optimal feature of a detailed statutory scheme where the scheme struck a fair balance: para 68.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld Sir Brian Keith's refusal to make a declaration that the statutory recognition scheme was incompatible with article 11: [2017] EWCA Civ 66.

2. High Court, Administrative Court: On 12 September 2014 Sir Brian Keith dismissed the union's application for a declaration of incompatibility. He held that Part VI of Schedule A1 provided a route by which workers could derecognise the non-independent union.

3. High Court, Administrative Court: On 22 January 2014 Keith J allowed Boots' judicial review claim and quashed the Central Arbitration Committee's decision. Although he then considered that article 11 had been breached, section 3 of the Human Rights Act 1998 could not support the Committee's reading of paragraph 35.

4. Central Arbitration Committee: On 29 January 2013 the Committee held the appellant's recognition application admissible by reading paragraph 35 so that prior recognition barred an application only where it covered pay, hours and holidays.