Does a 'sweetheart' union recognition deal result in a breach of Article 11 of the European Court of Human Rights (ECHR) in respect of the right to trade union membership?
No, held the Court of Appeal, in Pharmacists' Defence Association Union v Boots, holding that the dismissal of the PDAU's application for recognition did not breach the ECHR.
The PDAU sought compulsory recognition with Boots for its pharmacist members under TULRCA 1992, Sch. A1. Before the PDAU applied to the Central Arbitration Committee ('CAC') for recognition, Boots entered a limited recognition agreement for the pharmacists' bargaining unit with the Boots Pharmacists Association ('BPA'), a non-independent union (the 'sweetheart deal'). Under paragraph 35 of the recognition provisions, the sweetheart deal rendered the PDAU's application inadmissible, under a rule designed to stop one recognised trade union from displacing another. Boots won a judicial review of the CAC's refusal to dismiss the application, the PDAU argued that this breached Article 11 of the ECHR, as it rendered the exercise of Trade Union rights ineffective.
The was no breach of Article 11 as the statutory recognition procedure provided under paragraph 137 for a worker affected to apply for de-recognition of a non-independent union. Noting that the statutory recognition scheme sought to balance and calibrate the interests of multiple stakeholders, and having reviewed the case law, the judgment noted "article 11 cannot be used as a tool to challenge this or that arguably sub-optimal element in a scheme provided that a fair balance has been struck".
Thanks to Ed McFarlane of Deminos HR for preparing this case summary .