The PDA Union today claimed a landmark victory for 19 of its Boots members after an employment tribunal upheld their claim that their employer had unlawfully deducted wages. Boots Management Services had slashed payments for Sunday working by 25% affecting many long serving pharmacists; however the tribunal ruled that the company had acted unlawfully by cutting a contractual payment.
The claim against Boots
The PDA Union members claimed that their employer, Boots Management Services Limited, deducted monies from their wages without their permission as a consequence of the action Boots took in June last year in reducing their payment for Sunday working from double time to time and a half.
The claimants argued that the company could not do this, as the Sunday payment rate was contractual, Boots defence was that Sunday premium payments were discretionary and therefore could be subject to change at any time.
The company sought to rely on the payments being part of an overall reward package that was reviewed annually. However, the Sunday premium payment was not one of the benefits listed in the reward/benefits section of the employee handbook. The claimants believed that this supported their case that if the premium payment did not feature on the benefits/rewards list, then the company never intended it to be treated as discretionary.
Even if the tribunal held that the payments were discretionary, the claimants maintained that they still had contractual entitlements to them. This was because the employer’s discretion as to whether or not to make the payments is not unfettered; discretion cannot be exercised in an irrational or unreasonable way. Boots’ reasons for making the changes it was alleged were not a satisfactory explanation for the exercising of this discretion. The judge determined that the premium payment was not discretionary and that the company had no right to vary the contract.
PDA Union Reaction
John Murphy, PDA Union General Secretary, commented: “We are delighted that the persistence of our members with support from the Union has been vindicated. This will now mean that Boots will need to reappraise not only its policy of eroding staff fundamental contractual rights, but also the way it deals with similar issues in future.”
Why the PDA Union got involved in the dispute
The PDA Union took a stand on this issue because it was approached by over 70 members who believed that they had been adversely affected by the pay cut. The union tried to address this dispute by requesting a group grievance, but Boots refused “We believe that they adopted a divide and conquer approach by requiring all of the pharmacists involved to have to attend an individual grievance meeting and a further appeal,” said Mr Murphy.
During the hearing the employment judge questioned Boots about not permitting a group grievance to take place and expressed surprise that company managers were ill prepared and lacked any authority to hear individual grievances on a matter of company policy.
Union recognition
In a newsletter to Boots pharmacists the Boots Pharmacists Association (BPA) claimed that it was given a confidential advance briefing about the cuts and issued advice that the premium pay cuts were legal and then permitted the company to proceed unchallenged with its plans. In giving evidence. Dave Vallance the Boots HR director maintained that proper communication had taken place saying that the company shared its plans with BPA to seek their views and their feedback.
Boots is still resisting the PDA Union’s overtures for formal union recognition on the grounds that it has a solid relationship with BPA, despite PDA Union having twice as many Boots pharmacists than the BPA has in its membership.
The PDA Union is aware of the erosion of benefits, such as sick pay schemes, pensions and reductions in pay, for Boots’ pharmacists over the years. It is also concerned about changes to pharmacists’ work patterns under the CDP (customer driven profile) initiative and the restructuring of non-store based pharmacists, both of which the Union believes are being enforced without proper consultation. The PDA Union believes that a formal recognition agreement between it and the company would protect pharmacists’ terms and conditions through a binding and effective consultation process. The PDA Union will be applying to the independent Central Arbitration Committee for that statutory recognition.
The next steps for the claimants
Those employees that brought a claim can now expect recompense for any losses and for their premium rates to be reinstated. Some pharmacists have also brought claims on the basis that the change to their rate of pay was discriminatory which were left to one side until the less complex issue of contractual entitlement was determined. These claims will be listed for a Hearing shortly.
John Murphy said “We will be contacting Boots to enquire as to what their position is for other affected members who are not part of this claim. ”
A more detailed analysis of the judgement will be made available to members in due course.