Decision

Bargaining Unit Decision

Updated 20 November 2020

Case Number: TUR1/1185(2020)

20 November 2020

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION DETERMINATION OF THE BARGAINING UNIT

The Parties:

PDAU

and

McKesson UK (LloydsPharmacy)

1. Introduction

1) The PDAU (the Union) submitted an application to the CAC on 10 July 2020 that it should be recognised for collective bargaining by McKesson UK (LloydsPharmacy) (the Employer) for a bargaining unit comprising “All UK General Pharmaceutical Society or Pharmaceutical Society of Northern Ireland registered pharmacists or pre-registration pharmacists employed within LloydsPharmacy Limited (excluding those with area management status and those of equivalent or more senior status)”. The location of the bargaining unit was given as “At 1500+ locations throughout the UK and Northern Ireland”. The CAC gave both parties notice of receipt of the application on 10 July 2020. The Employer submitted a response which was received by the CAC on 17 July 2020 which was copied to the Union.

2) In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case. The Panel consisted of Professor Kenny Miller, Panel Chair, and, as Members, Mr Derek Devereux and Mrs Anna Berry. The Case Manager appointed to support the Panel was Nigel Cookson.

3) By a decision dated 11 September 2020 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. As no agreement was reached, the parties were invited to supply the Panel with, and to exchange, written submissions relating to the question of the determination of the appropriate bargaining unit. The parties were given notice that a hearing would take place by virtual means on 2 November 2020. The names of those who attended the virtual hearing on behalf of the parties are annexed to this decision.

4) The Panel is required, by paragraph 19(2) of Schedule A1 to the Act (the Schedule), to decide whether the Union’s proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate.

2. Summary of the Union’s submissions

5) The Union opened by submitting that it was clear that the Employer did not fully understand the process. The Union, having made a request to the Employer for recognition, was met with a refusal and so it applied under paragraph 11 to the CAC as to whether the proposed bargaining unit was appropriate. The application was duly accepted and the Panel then turned to the question of the appropriate bargaining unit under paragraph 18 of the Schedule wherein the CAC had to help the parties reach agreement as to the appropriate bargaining unit within a period that ended on 9 October 2020. As part of the process, as set out in paragraph 18A of the Schedule, the Employer was required to provide a list of the categories of worker in the proposed bargaining unit, a list of the workplaces at which they worked and the number of workers it reasonably believed to be in each of the categories at each of the workplaces. The Union was concerned that the Employer had failed to comply with this requirement in that the information must either be deduced from the dataset provided or was missing for more than 25% of the workers. Putting this concern to one side, the task now for the CAC was to determine the appropriate bargaining unit and, if the Union’s was found to be deficient, to determine a bargaining unit that was appropriate.

6) The Union contended that the Employer sought to argue that the Union’s proposed bargaining unit was not appropriate and it sought to advance an alternative bargaining unit which covered absolutely everyone, not just pharmacists and not just those whom the Union represented. However, as stated in Unite the Union and Wheelbase Engineering Ltd TUR 1/1006 (2017): “There is no requirement on the Panel to seek to identify a more appropriate bargaining unit if it finds that the union’s proposed bargaining unit is appropriate” (para. 25).

7) The statutory test of appropriateness referred to the Union’s proposed bargaining unit being “compatible with effective management” rather than requiring a more exacting test. It was therefore set at a comparatively modest level. “Effective management” being deemed by the CAC as relating to workable methods of resolving issues of pay, hours and holidays by means of collective bargaining.

8) The Panel must also have regard to paragraph 171 of the Schedule which provided that in exercising functions under the Schedule in any particular case, the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object being consistent with applying other provisions of the Schedule in the case concerned.

9) Although there was a wealth of previous CAC decisions, most cases turned on their facts, so individual cases were less helpful than reading the words of the Schedule. However, the Union believed that CAC’s decision on the bargaining unit in PDAU and Boots Management Services Ltd TUR 1/1062 (2018) was directly relevant. In addition, the Court of Appeal from time to time set out general guidance, for instance in R(Lidl Ltd) v CAC and another (GMB) [2017] ICR 1145, Underhill LJ said (at para. 16):

“It is in my view clear that that structure [of the Schedule], adopting a broad criterion of “appropriateness”, subject to specified considerations to be “taken into account”, rather than setting hard-edged criteria, reflects an intention on the part of Parliament to allow full range to the expert judgment of the CAC in making decisions about bargaining units.”

10) Addressing the criteria set out at paragraph 19B of the Schedule, the Union submitted that the proposed bargaining unit was compatible with effective management because it would provide a workable method of resolving issues of pay, hours and holidays by means of collective bargaining. That was because such terms and conditions were common to registered pharmacists and pre-registration pharmacists and it was plainly more effective and efficient to conduct bargaining in respect of a unit that covered all those employed under those terms and conditions.

11) As to existing bargaining groups, as previously noted, a similar bargaining unit was established and has been operating successfully with Boots Management Services. There were currently about 6,600 pharmacists in that bargaining unit, out of a workforce of about 52,000. Those pharmacists provided the same services as those within the proposed bargaining unit in this case. This existing national bargaining arrangement with another employer that had similar structures therefore provided a relevant and workable precedent. It was also of note that both sides in that case agreed that the store based pharmacists should be in the bargaining unit and the debate was around the inclusion of other pharmacists.

12) Regarding the characteristics of workers falling within the bargaining unit, they performed a unique and clearly defined statutory role within the undertaking and the bargaining unit represented a body of highly regulated professionals who were responsible in law for the safe and effective running of the pharmacy. They held a position of authority in the eyes of both the other staff and also the public. Their role involved statutory and ethical responsibilities that were unique to that role and a pharmacy could not lawfully operate without the pharmacist being present and assuming responsibility for its operation. They formed a cohesive and easily identifiable group. Nor would the proposed bargaining unit give rise to fragmentation between bargaining units or fragmented collective bargaining.

13) Finally, as for the location of the workers, they were dispersed across the United Kingdom, but this was no impediment to the proposed bargaining unit. The Employer had a management structure in place which reflected the geographical scope of the proposed unit.

14) The Employer claimed that its business was a very different business from Boots, although it was not clear in what way the differences were said to be material and why those differences supported a conclusion that the proposed bargaining unit was incompatible with effective management and therefore inappropriate. Clearly, Boots had a wider retail business and some of its outlets provided a range of services beyond those of pharmacies. However, the fact that there was a bargaining unit of all store-based registered and pre-registration pharmacists suggested that the existence of other functions and services within a particular outlet did not make that bargaining unit inappropriate. Given that the Employer had outlets with fewer other functions and services than Boots, it was difficult to see how this argument gave it assistance.

15) The Employer had also argued that its 1,547 pharmacies had a very wide geographical spread and were usually staffed by a handful of people including the pharmacist and that the individually different natures of the workers would mean that, in reality, there would be lots of small, fragmented bargaining units on the basis that many issues related to the staff in a shop or a group of shops rather than all the staff in one particular function. Presumably, the Employer was suggesting that, as a result, the proposed bargaining unit was incompatible with effective management. However, this argument was misconceived. Firstly, the logical consequence of the Employer’s argument was that there could never be a bargaining unit where staff were employed in different functions in a particular workplace, which was self-evidently wrong. Secondly, the wide geographical spread was irrelevant given the common interests of the pharmacists with regards to their terms and conditions of employment and the management structure. Thirdly, the other staff in a shop who were not pharmacists would obviously not form part of the bargaining unit, because they were not “the group of workers concerned” as stated in paragraph 2(2)) of the Schedule. However, they could form a separate bargaining unit or units, if there was recognition of other trade unions relevant to their particular work. That said, the Employer had not adduced any evidence to suggest there was any demand for bargaining units elsewhere in the undertaking.

16) Fourthly, the Employer had not explained why the proposed bargaining unit would be incompatible with effective management, which was a term it was plainly construing in the broadest sense. It was correct that many issues related to the staff in a shop and this could be seen very clearly at the moment, where issues arising from the Covid-19 epidemic would affect all staff. This was a management issue rather than an issue of collective bargaining. The proposed bargaining unit did not obstruct or prevent the effective management of staff as a whole.

17) Staying with Covid-19, the Union questioned how the existence of the proposed bargaining unit would render ineffective the Employer’s management need, for example, to keep all of its staff informed about health and safety measures. The Employer was confusing or conflating broad management issues with the need for a workable method for resolving discrete issues of pay, hours and holidays by means of collective bargaining. It was not the purpose of collective bargaining to prevent management from failing to comply with its responsibilities. On pay, the Employer made the point that it only had a single budget for pay awards but the Union would argue that it was not surprising that pay was in a single budget and it was difficult to see how this would prevent the Union from bargaining on pharmacists’ pay. As for the Employer’s claim that the Union would have the whip hand in any pay negotiations given the specialist nature of the pharmacists’ role and the regulatory requirement to have a pharmacist on site in order for the stores to be opened, the Union would say that this was what it did; it represented pharmacists and it was tasked with trying to get the best deal possible for them. No argument had been put forward by the Employer to show that pay could not be effectively managed through collective bargaining.

18) On the matter of bargaining in respect of hours, the Employer claimed that any change to the hours of work for the pharmacists would impact on their colleagues in the stores that were outside the bargaining unit. However, this was the very essence of collective bargaining and the Union being recognised would not stand in the way of the Employer’s ability to effectively manage its workforce as far as hours were concerned, and the same would apply in respect of holidays.

19) The first prime test for the Panel was the question of effective management and the Employer had not put anything forward to show that the Union’s proposed bargaining unit would not satisfy this requirement. On the question of existing local and national bargaining arrangements, a similar bargaining unit was operating successfully at Boots. It was a larger workforce but a similar framework. This was relevant as it demonstrated that the proposed bargaining unit was a workable unit. Although the Employer argued that its circumstances differed from Boots, the Union was not sure why the differences were material and why the proposed bargaining unit would not be compatible. It accepted that Boots had a wider range of services however the existence of the bargaining unit, with pharmacists working along with colleagues that were not subject to the bargaining arrangements, did not automatically render the proposed bargaining unit incompatible with effective management. Indeed, Boots was a good example of why the Union’s argument was cogent.

20) The Union submitted that its proposed bargaining unit would plainly not give rise to small fragment bargaining units within the undertaking and, as for the characteristics of the workers, they had a unique, clearly defined role as a body of highly regulated professionals.

21) On the matter of location, the Union submitted that the workers were based in stores around the country but the Employer’s submissions showed that it had a structure in place and so the geographical spread of the workers did not stand in the way of the proposed bargaining unit.

22) In the circumstances, the proposed bargaining unit was appropriate. The Employer’s alternative bargaining unit of everyone was unrealistic, unworkable and based on a complete misunderstanding of the statute. If the Employer was right in its submissions, it was difficult to see how there could be any bargaining units in businesses where workers carried out different functions.

23) In closing the Union stated that diversity within a group of workers was not an impediment to workers forming a bargaining unit and that bargaining unit being appropriate. That workers were on a pay range was irrelevant and precisely the subject for collective bargaining. This argument did not support the Employer’s submission of a whole workforce bargaining unit. The Employer had submitted that no other union had sought recognition in respect of the other workers but the CAC should draw no inference from this. The Union accepted that it focussed on the pharmacists but it was wrong to claim that it did not care about the other workers. In this respect the Union was no different from other unions that represented professionals such as the BMA. The Union was concerned with the bargaining unit it had put forward and the Employer had not shown why it was not appropriate whereas the alternative put forward by the Employer was in no way an appropriate unit. If there was diversity amongst the proposed bargaining unit then there was a bigger diversity amongst the workforce as a whole. The Panel should not be convinced by the Employer’s arguments about the proposed bargaining unit being an impediment in the way it runs its business.

3. Summary of the Employer’s submissions

24) The Employer was a community pharmacy business regulated by the General Pharmaceutical Council and employed 14102 workers in more than 1500 sites across the UK, Channel Islands and the Isle of Man. Pharmacists, including pharmacist managers, pharmacists and relief pharmacist managers made up 2602 of the total number of workers therefore representing 18% of the workforce.

25) The Employer’s estate was divided into 5 divisions, which together had 69 regions with an average of 22 branches per region as well as having branches located in hospitals to deliver outpatient dispensing services. On average, each location would normally have one pharmacist and up to 8 other workers, depending on the split of full and part time. All of the Employer’s locations were relatively small, with the vast majority of the business being prescription dispensing as compared, for example, to Boots. The Employer’s pharmacies were also often situated in the local community, near GP surgeries etc.

26) On the matter of what happened in the Boots case, the Employer submitted that the fact that another panel had granted recognition in respect of Boots was irrelevant to whether recognition was granted in this case. Boots had a pre-existing bargaining unit in respect of which another union was recognised and so, when it was derecognised through the statutory process, there was already a structure in place which saw pharmacists treated differently from their colleagues. Whilst both employed pharmacists, it was not the case that the Employer’s undertaking was the same as Boots. The Employer’s business was wholly that of pharmacy whereas Boots operational model was based on a far wider range of goods and services and in many of its locations, could be considered a health and beauty retailer with a pharmacy business. The Employer submitted that its business was 95% prescriptions and 5% related retail and, in its view, Boots would not be able to maintain its stores if it was reliant on prescriptions alone. Simply put, the Employer was wholly reliant on prescriptions and Boots was not. Thus the role of pharmacists in Boots was not vital whereas they were as far as the Employer’s business model was concerned, the Employer could not operate without pharmacists whereas Boots could.

27) Operationally regulations meant that to effectively open a pharmacy a responsible pharmacist had to be on-site. This would usually be the employed pharmacy manager or store-based pharmacist, though this could also be a relief pharmacist manager or an external locum pharmacist. In addition, the team may include a registered pharmacy technician, a small number of dispensers and possibly healthcare assistants. Pharmacists and pharmacy technicians were registered professional roles, whilst the other roles required specific national pharmacy qualifications in order for the business to comply with the regulations.

28) Minimum pharmacy opening hours were dictated by the specific NHS contract at each site. The hours required to run each branch were calculated through a labour model which took into account a variety of factors including prescription volumes including types of prescriptions, retail sales, pharmacy services, opening hours etc. The pharmacist role made up part of this labour model along with the other pharmacy support roles mentioned above. Generally, the relatively small team sizes within the Employer’s branches meant that the pharmacists were usually treated as part of the pharmacy team working together in a flexible and cohesive way, sometimes directly reporting to a manager in the branch who was not a pharmacist.

29) The Employer believed that the starting point should be how the Union’s proposed bargaining unit, restricted solely to pharmacists, could be compatible with the effective management of the Employer’s 1500 stores bearing in mind that the stores employed 14102 people but only 2602 of these were pharmacists. Clearly, the Union had not given any consideration to effective management in putting together the proposed bargaining unit. The Union, unlike most other unions, was only interested in the pharmacists and not the workforce as a whole because the Union was essentially a boutique union catering for a niche group of people.

30) The Employer had to manage the stores in the best interests not just of the business but also all of the workers, the majority of whom were not pharmacists. Any recognition granted in respect of the proposed bargaining unit would only cover the negotiation of pay, hours and holidays for the pharmacists. It was the Employer’s central point that it could not manage the pharmacists in isolation and that was shown by looking at the three areas that would be negotiated if the Union was granted recognition.

31) In its written submissions, the Union stated that terms and conditions were common to registered pharmacists and pre-registration pharmacists but the fact was that salaries for the pharmacists were not the same nor were the hours of work. They were not a uniform group of workers. For example, there were pharmacists based in Sainsbury’s stores as well as in medical centres, which resulted in pharmacists working vastly different hours across the undertaking and, contrary to the submissions put forward by the Union, just to have recognition in respect of the pharmacists would be unworkable.

32) From the Employers’ point of view the question of pay was a problem as it only had a single budget for pay awards and whatever the Union may achieve for the pharmacists simply meant that their colleagues, who were the majority, had to make do with a share of what was left. As the Union was well aware, it would have the whip hand in any pay negotiations given the specialist nature of the pharmacists’ role and the regulatory requirement to have a pharmacist present for the stores to be opened. Such a situation did not suggest that the Employer could effectively manage all the workers fairly and equitably in terms of pay.

33) As the Employer’s stores could only open and trade if a pharmacist was present, any change to the hours of work for the pharmacists must impact on their colleagues working in the same store. In order to facilitate any change in the pharmacists’ hours, the opening hours of the stores may have to change or, in the worst case, the store may have to close temporarily or permanently depending on the extent of the change. From the Employer’s point of view, providing locum pharmacists for part of a day in a store was not realistic, and if the alternative was trading for the basic minimum reduced hours, this may make some stores uneconomical.

34) The other workers had to be in the stores when the pharmacist was there and there was no point in their colleagues being in the store if there was no pharmacist there. This was a major issue as hourly paid workers could be faced with reduced hours because of a change to the pharmacists’ hours. This was a difficult issue and not compatible with the Employer effectively managing its stores. The hours of work in the stores need to be considered as well as the interests of all those working in the stores if the arrangements were to work.

35) The same issue that had been identified in relation to hours applied to holidays although in a different way. Any increase in holidays that may be agreed for the pharmacists in the stores would mean cover would be needed on the additional days when the pharmacists were on holiday. Whilst possible for the Employer to engage locum pharmacists to cover days off for holiday, they were expensive and the economic viability of individual stores which needed to employ locums would have to be considered if they were operating at a low profit margin. If the stores closed temporarily or permanently because of additional holidays this would impact on the other workers in the stores.

36) As the Union knew from discussions with the Employer before it lodged its application to the CAC, the business was looking to develop a coordinated approach to dealing with all its store staff. The reality was that the stores the Employer managed were relatively small and so decisions in relation to a pharmacist had a disproportionate impact on the handful of other workers in the store where the pharmacist was employed.

37) Having the Union recognised might benefit the pharmacists but it was not likely to benefit their colleagues in the stores and could adversely affect them. As it had made clear, the Union was only interested in the pharmacists and that was quite right from its point of view as it was set up for that purpose. The Employer, however, had to try to manage the business having in mind the interests of all the workers and would hope to continue to promote close cooperation and, where appropriate, flexibility between all those working in a store including the pharmacists.

38) The test was effective management of the Employer’s business which was the business of running the whole undertaking, not just the effective management of those workers in the proposed bargaining unit. Recognising the Union would make the management of the stores considerably more difficult because every proposal that the Employer had to consider, which would presumably be designed to improve the position of the pharmacists, was likely to adversely impact directly or indirectly on their colleagues who worked alongside the pharmacists. It was not a question of effective management of a large number of pharmacies but of a large number of pharmacists and the Employer submitted that such a bargaining unit would not work given the intrinsic differences between the pharmacists and how they operated. As it was not a workable bargaining unit, it was clearly not consistent with effective management. If recognised, the Union’s bargaining unit would render management of the pharmacies ineffective and distorted and the business could not be expected to run itself based solely on the pharmacists. It was clear that the Union had no idea how the Employer operated its business otherwise it would not compare it to Boots. It would not be able to deal with pay, hours or holidays on a consistent basis. Every decision the Employer made would have a potentially adverse impact on the workers outside the Union’s bargaining unit and this had to be a real concern on how the pharmacies would operate.

39) The test to be applied in determining the appropriate bargaining unit also looked at the need to avoid small fragmented bargaining units as well as having regard to the location of workers. Although the bargaining unit was large in terms of the number of pharmacists, the pharmacists were spread far and wide and in very small numbers in each location. It was not a coherent bargaining unit. For the avoidance of doubt, the Employer believed that to be effective, a workable bargaining unit would be one that covered all the store-based workers including the pharmacists.

4. Considerations

40) The Panel is required, by paragraph 19(2) of the Schedule to the Act, to decide whether the proposed bargaining unit is appropriate and, if found not to be appropriate, to decide in accordance with paragraph 19(3) a bargaining unit which is appropriate. Paragraph 19B(1) and (2) state that, in making those decisions, the Panel must take into account the need for the unit to be compatible with effective management and the matters listed in paragraph 19B(3) of the Schedule so far as they do not conflict with that need. The matters listed in paragraph 19B(3) are: the views of the employer and the union; existing national and local bargaining arrangements; the desirability of avoiding small fragmented bargaining units within an undertaking; the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; and the location of workers. Paragraph 19B(4) states that in taking an employer’s views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that it considers would be appropriate. The Panel must also have regard to paragraph 171 of the Schedule which provides that “[i]n exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.” The Panel’s decision has been taken after a full and detailed consideration of the views of both parties as expressed in their written and oral submissions.

41) The Panel’s first responsibility is to decide, in accordance with paragraph 19(2) of the Schedule, whether the Union’s proposed bargaining unit is appropriate. The Panel cannot simply reject the Union’s proposed bargaining unit because it is of the view that a different unit would be more appropriate nor is it the Panel’s task to determine the most effective or desirable unit in these particular circumstances.

42) Before moving on, a point about the constant reference to the Boots case as if it were authority on the question as to what is an appropriate bargaining unit where pharmacists are concerned. It is, of course, no such thing. CAC decisions by one panel are not binding on other CAC panels with each application brought to the CAC judged on its own merits. What a particular panel did in a particular case based on a particular set of circumstances is not binding on other panels even where circumstances are identical and so what happened in the Boots case has not formed any part of our decision making process in the matter to be decided here.

43) Having made clear our thoughts on Boots and having considered the parties’ submissions in this case, the Panel has arrived at the conclusion that the Union’s proposed bargaining unit is compatible with effective management. The Panel is of the view that the Union’s proposed bargaining unit consists of a clearly identifiable group of workers, all of whom share common characteristics by way of their professional role within the Employer’s undertaking and they are responsible for delivering a specific service for the Employer which marks them as distinct from the other workers that they work alongside. The Panel does not agree with the submission put forward by the Employer that it is not compatible with effective management to separate out the pharmacists or pre-registration pharmacists from other pharmacy based colleagues. We take particular cognisance of the fact that having diversity within a group of workers is not a barrier to some of the workers who have shared characteristics forming a bargaining unit and that bargaining unit being appropriate. The Union held up the example of the BMA as a union representing a clearly defined set of professionals, in this case doctors and medical students, working alongside colleagues such as nurses and ancillary workers who would not be eligible to become members of the BMA but without whom it may be said, the doctors could not function, as an example of how the distinction between the pharmacists and their non-pharmacist colleagues working together in the pharmacy was no bar to the former group being an appropriate bargaining unit for the purposes of this legislation. Our view is that the Union’s proposed bargaining unit is compatible with effective management under the Employer’s organisational structure given the clear and tangible characteristics that the workers in the proposed bargaining share.

44) The Employer submitted that its preference was an all-inclusive bargaining unit and that a discordant bargaining unit of the kind as put forward by the Union would be contrary to effective management on that grounds that the pharmacists were usually treated as being part of the pharmacy team working together with non-pharmacist colleagues in a flexible and cohesive way, sometimes, so the Employer submitted, reporting to a manager in the branch who was not a pharmacist. The Employer argued that salaries for the pharmacists were not the same nor were the hours of work and, on this basis, it could not be claimed that they were a uniform group of workers. It gave by way of illustration the explanation that there were pharmacists based in supermarket stores as well as in medical centres and this, so it asserted, resulted in pharmacists working different hours across the Employer’s business given the different requirements of customers. On this basis the Employer argued that a bargaining unit limited to the pharmacists would not be compatible with effective management. In addition, the Employer stated that it only had a single budget for pay awards and whatever the Union gained for the pharmacists through collective bargaining simply meant that there would be a much smaller pot to be shared amongst their colleagues outside of the bargaining unit.

45) The Panel does not accept that the Union’s proposed bargaining unit would make effective management more difficult because it may have to engage in different conversations over pay in respect of the one pay budget. There are many industries where this is the norm and the separate negotiations over pay are effectively managed. Nor, in our mind, would the proposed bargaining unit present any obstacle to the Employer continuing to organise its workforce on the current basis. There already is disparity in pay between those in the proposed bargaining unit and those outside and so the Union’s proposed bargaining unit would not in itself create division where none previously existed.

46) The Employer submitted that its stores could only open and trade if a pharmacist was present and so any change to the hours of work for the pharmacists must impact on their colleagues working in the same store. It also submitted that any change in holidays would have a similar effect in that any increase would mean that the Employer had to seek cover for the additional days when the pharmacists were absent the workplace. The Employer voiced its concern that in the extreme, this could result in stores closing temporarily or permanently. However, in the Panel’s experience it is not unusual for workers within a bargaining unit to be subject to different terms and conditions from those workers outside and who are not subject to collective bargaining and we do not consider this to be a barrier to effective management. It will be for the parties to achieve a workable balance through the medium of collective bargaining or agreement.

47) The Employer also submitted that when determining the appropriate bargaining unit, the Panel had to take into account the need to avoid small fragmented bargaining units as well as having regard to the location of workers. It argued that although the bargaining unit was large in terms of the number of pharmacists, they were spread far and wide and in very small numbers in each location. However, this seems to the Panel to be more of an issue for the Union in how it organises its support for members than an impediment to effective management.

48) The Panel notes the Employer’s reference to the spatial distribution of the workers in the Union’s proposed bargaining unit inferring the likelihood that this would give rise to fragmented bargaining units within the undertaking. However, the Panel would state that first, at the time of this decision, there is no evidence of any demand for recognition amongst the workers outside of the Union’s proposed bargaining unit and even if there was a unit covering all the retail staff and support staff, it would seem to us to be a sustainable and viable unit. Second, on the matter of fragmentation, the Panel finds succour in the words of Collins J in R (Cable & Wireless Services UK Ltd v CAC [2008] IRLR 425 at [17] when he said:

“it is important to see whether such a unit is self-contained. Fragmentation carries with it the notion that there is no obvious identifiable boundary to the unit in question so that it will leave the opportunity for other such units to exist and that will be detrimental to effective management.”

49) The Panel is of the view that the Union’s proposed bargaining unit is such a self-contained unit, has a clear boundary and distinctive features which separates it from other workers outside of the bargaining unit. That the relevant workers are spread throughout the UK, in our view, does not render the bargaining unit small nor fragmented in the way envisaged by the legislation. Following the Employer’s argument on the spread of the workers to its natural conclusion would mean that a bargaining unit as proposed here would never be appropriate whether or not there were other workers based at the same location or not. In our view, this cannot be the right approach to take and would undermine the statutory scheme.

50) The Panel has also considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need for the bargaining unit to be compatible with effective management. The views of the Employer and the Union, as summarised above, have been fully considered. In relation to existing national and local bargaining arrangements, there are no bargaining arrangements of either description in place. In relation to the desirability of avoiding small fragmented bargaining units within an undertaking, the Union’s proposed bargaining unit would be the only bargaining unit within the Employer. At the time of this decision we have seen no evidence to suggest any demand for recognition for collective bargaining purposes on the part of other workers within the Employer’s workforce. As far as the characteristics of workers are concerned, all those within the Union’s proposed bargaining unit are registered pharmacists or pre-registration pharmacists. They share a professional bond that marks them as distinct from other workers within the Employer’s undertaking. In relation to location, the workers in the proposed bargaining unit are based throughout the UK and the Panel has taken the geographical spread of the bargaining unit into account. The Panel has also had regard to the object set out in paragraph 171 of the Schedule in reaching its decision.

5. Decision

51) The appropriate bargaining unit is that as proposed by the Union, namely “All UK General Pharmaceutical Society or Pharmaceutical Society of Northern Ireland registered pharmacists or pre-registration pharmacists employed within LloydsPharmacy Limited (excluding those with area management status and those of equivalent or more senior status)”.

Panel

Professor Kenny Miller, Panel Chair

Mr Derek Devereux

Mrs Anna Berry

20 November 2020

6. Appendix

Names of those who attended the hearing:

For the Union

Simon Cheetham QC - Counsel for the PDAU

Emily Skinner - pupil barrister

Mark Pitt - Assistant General Secretary of the PDAU

Mark Koziol - Assistant General Secretary of the PDAU

Paul Day - Director, PDAU

For the Employer

Ben Turner - Head of HR – Retail

Johnny Dowd - Head of HR – ER & IR

Peter Norbury - External Solicitor