Lidl Ltd v Central Arbitration Committee [2017] EWCA Civ 328

Scott: Lidl against the CAC, the Central Arbitration Committee, and that was a trade union case. Mark, tell us about that.

Mark: Yeah. The central point here about the Lidl case was whether or not a bargaining unit for the purposes of trade union recognition consisting of 1.2% of the entire U.K. workforce was too small to be considered to be appropriate for the bargaining unit to be recognised by the CAC and by the employer, ultimately.

What happened was the equivalent legislation in Northern Ireland is the Employment Relations in Northern Ireland Order of 1999, and what the Industrial Court in Northern Ireland would take into consideration would be issues such as proliferation, issues of fragmentation, the bargaining unit being too small and not being compatible with effective management. Traditionally, the viewpoint would have been that if you have 1.2% of the workforce, it's too small. It would be, by definition, fragmented and not commensurate with effective management.

What the Court of Appeal said in this particular case was, "No, what the key issue was there was a clearly defined bargaining unit albeit it consisted of 1.2%, but there was no risk of proliferation," and the key issue then ultimately was the legislation, to quote the judge, was not designed to address a situation where you had a small island of recognition in a sea of derecognition.

Therefore, that dispelled the myth that small meant fragmented, meant incompatible with effective management and therefore wouldn't be recognised as a bargaining unit.

Scott: In that case, you could have, for instance, let's say a bargaining unit is you've got 100 stores, and only 1 store seeks recognition. That would count as far as . . . or you could take a small grouping of employees across those 100 stores and provided it was, if you like, a niche enough grouping, that would constitute a bargaining unit because it wasn't going to spread to the others, and if the employer didn't want to recognise some hard lines, they would still have the right to go through the statutory recognition procedures that apply both in Northern Ireland and in the rest of the U.K.

Mark: Absolutely. So the key issue being how uniquely pigeonholed the bargaining unit is either across the board or across space geographically where the organisations are based in the U.K. or simply within a single organisation.