LIDL Ltd, R (on the application of) v Central Arbitration Committee & Anor [2016] EWHC 2040 (Admin)

Case No CO/3013/2016

[2016] EWHC 2040 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 10 August 2016

Before

THE HONOURABLE MR JUSTICE LEWIS

Between

R on the application of LIDL LIMITEDClaimant

CENTRAL ARBITRATION COMMITTEEDefendant

GMBInterested Party

Daniel Barnett (instructed by Gregsons Solicitors) for Claimant

Aileen McColgan (instructed by Leigh Day) for Interested Party

for The Defendant did not appear and was not represented

Hearing Hearing date: 15 July 2016

JUDGMENT

The Honourable Mr Justice Lewis

INTRODUCTION

[1]This is a claim for judicial review of a decision of the Central Arbitration Committee (“the CAC”) dated 15 May 2016. By that decision, the CAC decided that a bargaining unit described as “Warehouse Operatives in the following sections: Goods In, Goods out and Selection” at the Bridgend Regional Distribution Centre of the employer, Lidl Ltd, was an appropriate bargaining unit for the purposes of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”).

[2]The Claimant is Lidl Ltd, the employer. There are three grounds of challenge. First, it is alleged that the CAC misconstrued the relevant provision of Schedule A1 to the 1992 Act. Secondly, it is said that the CAC failed to give adequate reasons for its conclusion on a material issue. Thirdly, it is said that the CAC failed to have regard to two material considerations, namely a previous decision of the CAC in another case and an extract from a dictionary on the meaning of fragmentation.

THE STATUTORY FRAMEWORK

[3]Schedule A1 to the 1992 Act deals with the recognition of bargaining units within the workforce. The provisions are complex. In essence, a trade union may make a request to an employer seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers: see paragraphs 1 and 4 of Schedule A1 to the 1992 Act. References to collective bargaining are references to negotiations relating to pay, hours and holidays: see paragraph 3 of Schedule A1. If the employer does not agree to a valid request, or fails to respond, then the union may apply to the CAC, established pursuant to section 263 of the 1992 Act, for a decision on whether the proposed bargaining unit is appropriate. If matters are not resolved, paragraph 19(2) of Schedule A1 to the 1992 Act provides that:

“(2)….. the CAC must decide whether the proposed bargaining unit is appropriate.”

[4]Paragraph 19B provides that:

“(1)) This paragraph applies if the CAC has to decide whether a bargaining unit is appropriate for the purposes of paragraph 19(2) or (3) or 19A(2) or (3). “(2) The CAC must take these matters into account– (a) the need for the unit to be compatible with effective management; (b) the matters listed in sub-paragraph (3), so far as they do not conflict with that need. “(3) The matters are– (a) the views of the employer and of the union (or unions); (b) existing national and local bargaining arrangements; (c) the desirability of avoiding small fragmented bargaining units within an undertaking; (d) the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; (e) the location of workers. “(4) 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 he considers would be appropriate. “(5) The CAC must give notice of its decision to the parties.” (a) the need for the unit to be compatible with effective management; (b) the matters listed in sub-paragraph (3), so far as they do not conflict with that need. “(3) The matters are– (a) the views of the employer and of the union (or unions); (b) existing national and local bargaining arrangements; (c) the desirability of avoiding small fragmented bargaining units within an undertaking; (d) the characteristics of workers falling within the bargaining unit under consideration and of any other employees of the employer whom the CAC considers relevant; (e) the location of workers. “(4) 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 he considers would be appropriate. “(5) The CAC must give notice of its decision to the parties.”

[5]Paragraph 171 of Schedule A1 to the 1992 Act provides that:

“In 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.”

[6]The role of the CAC is to determine whether the proposed bargaining unit is appropriate, that is, is suitable for the purpose for which it is to be used, namely the conduct of collective bargaining in respect of a group of workers. The CAC should first consider the proposed bargaining unit and determine if that proposal is appropriate rather than seeking to determine whether the proposed unit would be the best or most appropriate bargaining unit: see R v Central Arbitration Committee ex p. Kwik-Fit (GB) Ltd.

[2002] IRLR 395

THE FACTS

[7]The relevant facts appear from the decision of the CAC. Lidl UK GmBH is a company registered in Germany. It operates 637 supermarket stores in England, Wales and Scotland and nine Regional Distribution Centres. It is, in turn a subsidiary of Lidl Stiftung & Co., (“Lidl International”), a company which operates in 26 countries in Europe and other countries outside Europe.

[8]The Claimant, Lidl Ltd., is a service company supplying staff to Lidl UK GmBH for the purposes of operating the supermarkets and the Regional Distribution Centres. It is the employer of the staff concerned. The interested party, the GMB (“the Union”), requested that it be recognised for collective bargaining for a group of workers described as “Warehouse Operatives working in the following sections: Goods In, Goods Out and Selection” employed at one of the nine Regional Distribution Centres, that is the centre at Bridgend. Following a failure to agree a bargaining unit, the Union applied to the CAC to determine whether its proposed bargaining unit was an appropriate bargaining unit. The CAC established a Panel of three individuals to determine that question. The Claimant and the Union made written and oral submissions to the Panel. On the day of the hearing, the Claimant sought to rely on a decision of the CAC in another case, together with an extract from the Oxford English Dictionary dealing with the meaning of “fragmentation”. Following a short adjournment, the Panel decided not to allow that material to be relied upon before it. It noted, in its decision, that previous CAC decisions did not have any precedent value for the current panel of the CAC dealing with the present application.

[9]The decision of the CAC should be read in its entirety. In its decision, the CAC recorded the material provisions of paragraph 19(2) and 19(3) of Schedule A1 to the 1992 at the outset of its decision. It recorded a detailed summary of the Union’s submissions on why its proposed bargaining unit was appropriate. The CAC also recorded a detailed summary of the Claimant’s submissions.

[10]The CAC noted that the Claimant employed 18,203 staff to operate the 637 stores and Regional Distribution Centres in England, Wales and Scotland. It noted that decisions on pay, hours and holidays were taken by Lidl International, and that employees were categorised, worldwide, according to eight principal categories. The CAC noted that the UK operation was co-ordinated from the head office at Wimbledon but day-to-day operation functions were divided into nine major geographical areas, each with its own administrative, warehouse and distribution centre. Bridgend was one of these nine Regional Distribution Centres. The CAC noted that warehouse operatives were categorised as category 6 employees and that that categorisation also included store workers and junior office staff. The total number of category 6 employees was 14,675 or 81% of the total UK workforce of 18,203. The proposed bargaining unit of warehouse operatives at the Bridgend Regional Distribution Centre comprised approximately 223 employees or 1.2% of the total workforce of 18,203. The Claimant emphasised that it operated what was described as a one Lidl culture, comprising one organisation with a single set of policies and procedures.

[11]The CAC noted the submission of the Claimant that the Union’s proposed bargaining unit was based on a description which involved what the Claimant described as double segmentation, that is it involved establishing a bargaining unit by reference both to job description and location. The proposed bargaining unit comprised only warehouse operatives (not all workers in category 6) and only those operatives who were based at one particular location, the Bridgend Regional Distribution Centre. The Claimant submitted that the degree of fragmentation involved was not compatible with efficient management. It also relied upon the desirability of avoiding small fragmented bargaining units within an undertaking. It submitted to the CAC that the Union’s proposed bargaining unit covered only 1.2% of the employer’s 18,203 employees in the UK and just 1.5% of the employer’s 14,675 category 6 employees in the UK. It contended that the proposed bargaining unit would result in local fragmentation within the Bridgend Regional Distribution Centre, leading to tension between the 223 Warehouse Operatives and the other category 6 employees employed in, or costed to, the Bridgend Regional Distribution Centre, and the remainder of 2,443 Warehouse Operatives in the other eight regions. The employer submitted that the logical consequence would be recognition of a substantial and unworkable number of bargaining units each competing with one another. The decision of the CAC records the submissions of the employer on the other factors relevant to its decision.

[12]The material parts of the decision of the Panel are contained in the following paragraphs of its decision:

“32. The panel considers that the Union’s proposed bargaining unit is compatible with effective management. The Employer’s operation is divided into nine major geographical areas, each of which has its own Regional Distribution Centre, of which Bridgend is one. Each region has its own management team which is expected to deal with local problems. A Regional Director has responsibility for the stores and warehouse within a given region, supported y (amongst others) a Head of Logistics, Head of Sales and a Head of Administration. Disciplinary and recruitment matters are dealt with by the Team Manager of the warehouse. There is a management structure in place, therefore, which reflects the geographical scope of the Union’s proposed bargaining unit. “33 The Employer emphasised to us the importance of the ‘One Lidl’ culture and the principle of standardization to its operation, exemplified in the fact that there is a single pay scale applicable to all its category 6 workers. However the Employer informed us of two exceptions to this principle: an enhanced rate for employees who work within the M25, in line with the Employer’s commitment to being a living wage employer, and a night shift premium in five of its nine warehouses, including Bridgend, due to market forces in those areas. It is evident, therefore, that the Employer is able to accommodate additional allowances within its structures and payroll systems. ….. “35. In relation to the roles within the Union’s proposed bargaining unit, the Panel notes that Warehouse Operatives are treated as a distinct group with a separate contract. Although the Employer’s written evidence emphasised the importance of its ability to transfer Warehouse Operatives to stores, we were told in oral evidence that this had occurred only at the request of the individual concerned. We consider therefore that a bargaining unit composed only of Warehouse Operatives is consistent with effective management. “36. The Panel has considered the matters listed in paragraph 19B(3) of the Schedule, so far as they do not conflict with the need to be compatible with effective management. The views of the Employer and the Union, as described earlier in this decision, have been fully considered. The Panel does not consider that there are any existing national or local bargaining arrangements in this case. In relation to the desirability of avoiding small fragmented bargaining units, the Union’s proposed bargaining unit would be the sole existing bargaining unit within the Employer’s undertaking and there is no evidence of any current demand elsewhere. As far as the characteristics of workers are concerned, the Panel notes that Warehouse Operatives are treated as a distinct group with a separate contract and are easily identifiable. All the workers are based at a single location. The Panel is satisfied that its decision is consistent with the object set out in paragraph 171 of the Schedule. Decision “37 The Panel’s decision is that the appropriate bargaining unit is that proposed by the Union, namely Warehouse Operatives working in the following sections: Goods In, Goods Out & Selection. The location of the bargaining unit is the Employer’s Regional Distribution Centre, Waterton Industrial Estate, Bridgend.”

Decision

[13]The employer sought permission to apply for judicial review of that decision on three grounds. Ouseley J. ordered that there be a rolled-up hearing, that is oral consideration of the application for permission with the substantive hearing following immediately afterwards if permission were granted. At the hearing, the parties made submissions both on permission and on the substantive issues.

THE ISSUES

[14]Three issues arise in this case:(1) Did the Panel misconstrue paragraph 19B(3)(c) of Schedule A1 to the 1992 Act by considering that there could not be small fragmented units within the undertaking unless there were more than one such unit?

(2) Did the Panel fail to consider, or to give adequate reasons for rejecting, the Claimant’s submission that there the proposed bargaining unit involved double segmentation, that is a bargaining unit described by reference to a combination both of job description and location which was inconsistent with the desirability of avoiding small fragmented bargaining units?

(3) Did the Panel fail to consider two relevant factors, namely the decision of a different panel of the CAC in a different case and the Oxford English Dictionary Definition of the word “fragmentation”? THE FIRST ISSUE – THE PANEL’S INTERPRETATION OF PARAGRAPH 19B(3)(c) OF SCHEDULE A1 TO THE 1992 ACT 15 The Claimant submits that paragraph 19B(3)(c) of Schedule A1 requires the CAC to have regard to the desirability of avoiding small fragmented bargaining units within the undertaking. The Claimant submits that that factor may be applicable even if there is only one such unit within the undertaking, relying on section 6 of the Interpretation Act 1978 and the decision of Collins J. in R (Cable & Wireless Services UK Ltd.) v Central Arbitration Committee

[2008] ICR 693

. The Claimant further submits that the CAC in the present case considered that there had to be more than one bargaining unit in existence within the undertaking before the sub-paragraph applied. The Claimant contends that that follows from the third sentence of paragraph 36 of the decision where the Panel indicated that the Union’s proposed bargaining “would be the sole existing bargaining unit within the Employer’s undertaking”. As the Claimant put it in its skeleton argument, this could only be interpreted as meaning that the CAC considered that the desirability of avoiding small fragmented units was not a factor because there would not be units but only one unit within the undertaking. Consequently, it is submitted, the CAC erred in its interpretation of paragraph 19B(3)(c) of Schedule A1. Discussion 16 The task of the CAC in the present case was to determine whether the bargaining unit proposed by the Union was appropriate. Paragraph 19B of Schedule A1 to the 1992 Act sets out a number of factors that the CAC must take into account when determining whether the proposed bargaining unit is appropriate. These include, first and foremost, “the need for the unit to be compatible with effective management”: see paragraph 19B(3)(2)(a) of Schedule A1. Thereafter, the CAC is required to have regard to five further matters, including “the desirability of avoiding small fragmented bargaining units within an undertaking”, in determining whether the proposed bargaining unit is appropriate so long as those matters do not conflict with the need for the unit to be compatible with effective management: see paragraph 19B(2) and (3) of Schedule A1. 17. In relation to the matter referred to in paragraph 19B(3)(c) of Schedule A1, the sub-paragraph is not looking at size alone. It is not dealing with small bargaining units but “small fragmented” units. More importantly, the factor that the CAC must take into account is “the desirability of avoiding small fragmented bargaining units within the undertaking”. The task for the CAC is to consider what difficulties might be created by accepting the proposed bargaining unit as appropriate. One such difficulty may be the risk of proliferation in the number of small fragmented bargaining units if one (or more) bargaining units is recognised. The recognition of one bargaining unit may lead to demands for other units. Other difficulties could arise if the proposed bargaining unit was not clearly defined, or was not self-contained and did not include many employees whose work was not in reality different from those who were included within the proposed bargaining unit. That may lead other workers, not included within the proposed bargaining unit, to propose further bargaining units. Other difficulties might arise in other cases. The adverse consequences that it is desirable to avoid may arise if there is one (or more than one) bargaining unit within an undertaking. That approach is consistent with the dicta of Collins J. in his decision in the Cable & Wireless case at paragraphs 16 and 17 of the judgment. 18. In the present case, however, the ground of challenge is that the Panel, in its decision, misdirected itself and considered that there had to be more than one unit within the undertaking before the desirability of avoiding small fragmented units became a relevant factor. On a reading of the decision as a whole, however, it is clear that the panel was responding to the arguments put forward on behalf of the Claimant and it was not misdirecting itself. The Claimant itself was arguing that recognising the proposed bargaining unit would result in tension between the workers included within the proposed bargaining unit and others (for example, the other category 6 employees at, or costed to, the Bridgend Regional Distribution Centre who were not included within the proposed bargaining unit) or between warehouse operatives at Bridgend and those who might seek recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers at other warehouses in the other eight regions. The Claimant contended, as recorded in the decision itself, that the consequence would be that the employer could end up having to recognise a substantial and unworkable number of bargaining units each competing with one another. It was in that context that the Panel noted that the proposed bargaining unit would be the sole existing bargaining unit within the undertaking and that there was no evidence of any current demand elsewhere. In other words, the CAC was not misdirecting itself as to the meaning of paragraph 19B(3)(c) of Schedule A1 to the 1992 Act. It was not setting out a view that there had to be more than one bargaining unit within the undertaking for that factor to be relevant. Rather, it was concluding that the concerns that the Claimant had were not well founded on the material before it and that the risk, which it was desirable to avoid, of creating small fragmented bargaining units within the undertaking did not, on the facts, arise. The CAC did not misinterpret paragraph 19B(3)(c) of Schedule A1. 19 For completeness, I note that, in reply, Mr Barnett for the Claimant sought to emphasise that the submissions made at the hearing before the Panel focussed on the risk of tension with other employees and submitted that the Panel did not deal with that submission. That is not one of the pleaded grounds of claim. In any event, the criticism is unfounded. The Claimant made its submission to the panel on the potential consequences that would flow from recognising the proposed bargaining unit as appropriate. It said that would create tension with other employees and the Claimant could end up recognising a substantial and unworkable number of bargaining units. It was that contention that the Panel was addressing in paragraph 36 of its decision when it found that there was no evidence of any current demand for other bargaining units. It did not, therefore, fail to consider or give reasons for its conclusions on this aspect of the case. 20 I also note that, in the skeleton argument, but not in the grounds of claim, the Claimant contends that the Panel failed to find as a fact whether it agreed with the Claimant’s contention that only 1.2% of employees fell within the proposed bargaining unit. It is clear that the parties to the application both considered that the number of employees within the proposed bargaining unit was small: approximately 221 employees (the figure in the Union’s written submissions) or 223 employees (the Claimant’s figure as at 26 April 2016). It is clear that the Claimant’s figures were that it employed 18,203 employees as at 26 April 2016. The Union recognised that the Claimant’s reasons for resisting recognition was that the proposed unit was “artificial and negligible in size compared with the Employer’s business as a whole” (see paragraph 9 of the decision recording the Union’s submissions). There is no suggestion that the parties, or the Panel, considered that those figures were inaccurate. It is clear that the CAC considered the case on the uncontested factual basis of whether the proposed bargaining unit, involving only a small proportion of the employer’s workforce, was appropriate in the circumstances of this case. There is no basis, therefore, for this criticism of the decision. THE SECOND ISSUE – THE QUESTION OF FRAGMENTATION BY JOB DESCRIPTION AND LOCATION 21 The Claimant submits that the CAC failed to consider or to give reasons for rejecting its submission that the proposed bargaining unit would involve double segmentation of the workforce. By double segmentation, the Claimant meant that the proposed bargaining unit involved fragmentation of the work force in two ways. The proposed bargaining unit was defined by job description to include some of the staff within a relevant category – here warehouse operatives but excluding administrative staff, cleaners and support staff in the same grade as the warehouse operatives at Bridgend and many other employees at other stores, the head office and regional distribution centres– and by location to include only warehouse employees at a particular location, here the Bridgend Regional Distribution Centre, and not employees at other locations. The Claimant contended that that element of double segmentation would not be compatible with effective management and so made the proposed bargaining unit inappropriate. It contended that that method of identifying the proposed bargaining unit rendered it very different from other bargaining units which had been judged in the past to be appropriate as such units were either defined by reference to job description or location but not both. 22 In general terms, it is helpful to bear in mind the following observations of Collins J. in paragraph 14 of his decision in Cable & Wireless

[2008] ICR 693

: “…it is important to bear in mind that the decision is not to be treated as a statute whose language can be subjected to detailed analysis. The panel was well aware of and had summarised in some detail the issues raised and the evidence produced by the parties. It was telling those who were aware of those issues why it reached the decision and it is in my view wrong to assume that it had not had regard to a matter to which it had referred in its exposition of the background and the contentions of the parties in the reasons given for reaching the relevant conclusion. It would only be if a reason or a conclusion was obviously inconsistent with a matter to which regard should have been had that an error could properly be assumed. It is also important to bear in mind that the reasons will be set out in the context that they are responding to the submissions made by both parties but by the loser in particular.” 23. In the present case, the CAC did address both the alleged fragmentation of the workforce by job description and location. So far as location is concerned, paragraph 32 deals specifically with this issue. It noted that the employer’s operation is divided into nine major geographical areas, each with its own Regional Distribution Centre. It found that each region had its own management team which was expected to deal with local problems, and a separate management structure which reflected the geographical scope of the proposed bargaining unit. For that reason, a proposed unit based at one location, the Bridgend Regional Distribution Centre, was consistent with the need for effective management. 24. So far as job description is concerned, the CAC was well aware that the proposed bargaining unit did not involve all employees in a particular category but only the warehouse operatives, at the Bridgend Regional Distribution Centre. That is clear from paragraph 35 of the decision where the CAC deals with the job description, or roles, within “the Union’s proposed bargaining unit”, that is, the approximately 223 employees at the Bridgend Regional Centre who fell within the description of warehouse operatives. It gave its reasons for regarding this bargaining unit as compatible with the need for effective management. It noted that the warehouse operatives were treated as a distinct group with a separate contract, and that transfers from that group to work in the stores only occurred at the request of the individuals. It therefore found that a bargaining unit composed only of warehouse operatives was compatible with effective management. It made that comment in the context of dealing with a group of approximately 223 warehouse operatives at the Bridgend Regional Distribution Centre. There is, therefore, no basis for concluding that the CAC failed to consider the effect of what the Claimant described as double segmentation. It did. It gave its reasons for finding why, nevertheless, the proposed bargaining unit was compatible with efficient management.

[25]For completeness, I note that Ms McColgan, on behalf of the interested party, the Union, drew attention to the decision of the Court of Session, Outer House, in Fullarton Computer Industries Ltd. v Central Arbitration Committee

[2001] IRLR 752

. There, the Court of Session drew attention to the fact that there is no statutory obligation on the CAC to give reasons for its decision and indicated that, in such circumstances, if reasons are given, a decision will be quashed if the reasons demonstrate some flaw on the part of the decision-maker and not merely because the reasoning is inadequate. In the present case, the decision-maker did give reasons and it is not necessary to consider whether or not this is one of the situations where the common law, nevertheless, requires reasons to be given. Nor did I hear argument on that issue. Similarly, in the present case, the reasons given are adequate and intelligible. It is not necessary, therefore, to consider the situation that arises where a decision-maker is not obliged to give reasons but chooses to do so. It is unnecessary to consider whether the approach adopted in Fullarton represents the current approach to administrative law in England and Wales and whether or not it should be followed. Again, I did not hear argument on this issue.

THE THIRD ISSUE - FAILURE TO HAVE REGARD TO MATERIAL CONSIDERATIONS

[26]The Claimant submits that the CAC failed to have regard to two material considerations. The first is a decision of the CAC in a different case, Unite the Union v Kettle Foods. There the CAC accepted that, on the facts, the undertaking in question operated a one company philosophy which involved virtually uniform compensation and reward structures across the undertaking and involved treating workers in the same way in virtually all respects from restaurant facilities to pay and bonus structures, holidays and hours and benefits in kind. The CAC in that case accepted that recognition of a bargaining unit comprised of some of the workers would be incompatible with effective management as it would cut across the well-developed and longstanding one company approach adopted by the employer in that case. The Claimant wished to rely upon that decision, not as factual evidence and not as a binding precedent, but as what the claim form described as an interpretative aid to the law. The second alleged material consideration is an extract from the Oxford English Dictionary dealing with the definition of fragmented as(1) a part broken off or otherwise detached from the whole, a broken piece, or a comparatively small detached portion of anything or

(2) a comparatively small portion of anything. Again, the Claimant indicated that it had wished to rely upon the extract as an interpretative aid to paragraph 19B(3)(c) of Schedule A1 to the 1992 Act as emphasising the word “small” in that sub-paragraph.

[27]There was no failure to have regard to a material consideration on the facts of this case. The CAC considered the extent to which the Claimant did, in fact, operate a “one Lidl” policy with standard terms and conditions for all employees and whether recognition of the proposed bargaining unit comprising a small number of workers at one location would be compatible with efficient management. As appears from paragraph 33 of its decision, the CAC determined that the Claimant had made two exceptions to this approach and that the Claimant was able to accommodate changes to terms and conditions within its structures and payroll systems. In other words, the claimant failed in this aspect of its case because, on the facts, the CAC considered that exceptions could be made to the standard terms and conditions without compromising the need for effective management and not because it declined to accept that such considerations could be relevant to that exercise. The decision of the CAC in another case, which turned on its own facts, would not be material to how the CAC resolved the issue on the particular facts in this case. Furthermore, if the CAC had erred in its interpretation of the law (whether because it failed to have regard to other decisions which might have alerted it to the proper interpretation of the law, or for some other reason), then its decision would be subject to challenge. The CAC did not err in its interpretation of paragraph 19B(2) of Schedule A1 and the need for the unit to be compatible with effective management. It did not fail to have regard to a material consideration by declining to consider a decision of the CAC in a different case, on different facts, deciding what amounted to effective management in that other case.

[28]The CAC also did not fail to have regard to a material consideration in relation to the meaning of small fragmented bargaining units in paragraph 193(B)(c) of Schedule A1 to the 1992 Act. The sub-paragraph itself includes the terms “small” and “fragmented”. The CAC specifically referred to the wording of paragraph 193(B)(3)(c) of Schedule A1 on more than one occasion in its decision. The CAC referred, at paragraph 25 of its decision, to the arguments put forward on behalf of the Claimant in relation to the fact that the proposed bargaining unit comprised only 1.2% of the employer’s total workforce in the UK. There was no failure to have regard to that factor and no misinterpretation of the law. The fact that the CAC did not have regard to a dictionary definition of the meaning of fragment did not involve any failure to have regard to a material consideration in the present case.

[29]For completeness, I note that the Claimant sought to provide a copy of the earlier decision of the CAC and, it seems, the dictionary definition at the oral hearing by the CAC of the application and the Union objected to the late introduction of the material. Following a short adjournment, the Panel decided not to allow that material to be introduced at the hearing. That course of action would normally have involved consideration of the fairness of the procedures adopted by the CAC rather than an allegation of a failure to have regard to material considerations. In the present case, no claim is made of any unfairness on the part of the CAC in the way in which it dealt with the application to introduce this material. Nor, on the facts, was there any unfairness given that the CAC did consider the question of the one company policy said to be followed by the claimant and the question of the desirability of avoiding small fragmented bargaining units within the undertaking.

CONCLUSION

[30]The grounds of claim are arguable and, for that reason, permission to apply for judicial review is granted. On consideration of the grounds, however, they do not disclose any error on the part of the CAC. The CAC did not misdirect itself as to the proper interpretation of the phrase “the desirability of avoiding small bargaining units within the undertaking” in paragraph 19B(3)(c) of Schedule A1 to the 1992 Act. The CAC gave adequate reasons for its conclusions and, in particular, considered both the effect of describing the proposed bargaining unit in terms which involved only part of the workforce at only one of the locations. The CAC did have regard to the question of whether the claimant operated a standardised set of policies such that the proposed bargaining unit would, or would not, be compatible with effective management. The CAC also considered the question of the desirability of avoiding small fragmented bargaining units within the undertaking. It did not fail to have regard to material considerations in these regards. For those reasons, the claim for judicial review is dismissed.