The managers – referred to as Mrs K Wayt and Mrs M McPherson in the judgement – convinced Judge Robert Clark that they had been left with no other choice but to resign, after a Boots branch management reorganisation saw them take over an “excessive and unmanageable” new area manager role.

On July 22, Judge Clark accepted both managers’ claims of unfair dismissal and ruled in favour of their claims for statutory redundancy payments. “Remedy will be determined at a future hearing, if not agreed,” he said in his decision, published last week (August 15).

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A Boots spokesperson told C+D that the multiple respects Judge Clark’s decision.

A spokesperson for the Pharmacists’ Defence Association (PDA) – which assisted both managers with their cases – told C+D that “the full amount of compensation is yet to be determined and it is a high value claim”.

 

“Project daffodil” reorganisation

 

In 2019, Boots started a “secret” project that it called “project daffodil” to reorganise store management, Judge Clark heard.

As part of this, Boots planned to reduce its number of area managers from 170 to 100.

“It was therefore known that there would be a significant reduction of around 40% of the requirement for area managers and around 70 of the current workforce doing that work would no longer be employed,” the judge noted.

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The project had two objectives: to get “senior leaders” closer to their customers and “to save money”, Judge Clark found.

But Judge Clark did not find any differences between the new area manager roles and the old ones, other than there being “simply 40% fewer of them, meaning they are each spread thinner across a larger area dealing with operational, staffing and other issues that arise from nearly twice as many stores in each area”.

Furthermore, he found that while the area manager job was “not altered in any respect”, “the volume or scale was dramatically increased”. Judge Clark also found that under the new plans, “organisational support for area managers did change and that it was effectively reduced”.

 

Impact on area managers

 

Ms Wayt and Ms McPherson had been working at Boots for 30 and 37 years respectively, and as area managers Ms Wayt had responsibility for 13 branches, while Ms McPherson oversaw 14.

In early 2020, Boots’ heads of stores carried out a “desktop assessment” as part of project daffodil, which was a “paper exercise done in secret with only the managers, HR and a director involved” to select which 100 area managers would be offered the new area manager posts, Judge Clark found.

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Both Ms Wayt and Ms McPherson “scored very well” during this assessment and were assigned additional branches. It was only after the outcome of this assessment that they were invited to confidential meetings to be informed of what was happening to their roles, the judge added.

After they were asked to sign non-disclosure agreements and ordered not to speak of the changes with anyone, Ms Wayt and Ms McPherson were told the number of branches they managed would increase to 25 and 26 respectively.

 

Unmanageable workload

 

Both women highlighted during the meetings that they did not believe they could successfully deliver on the new requirements.

But despite “their initial protest”, both “attempted to deal with the role” and “were quickly overwhelmed by the size of the task”, Judge Clark found.

Finally, in March 2020, both were signed off work by their GPs and never returned to their roles.

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During this time, both managers had asked the PDA to submit grievances. Two different grievance hearings took place at the beginning of April 2020, and both managers appealed their unsuccessful outcomes – which dismissed the scale of increase in the role.

Their appeals were also unsuccessful, and the managers remained “absent on sick leave after receipt of their grievance appeal outcomes” before both ultimately deciding to resign in the summer.

Their cases were later presented to Judge Clark at a remote hearing in May and in chambers in private on July 7.

 

Breach of trust and confidence

 

Judge Clark acknowledged that “an employer is entitled to vary and reorganise the work” and it would not be in breach for asking an employee “to do more”. This is “the foundation of crude productivity increase”, he said.

However, “there comes a point when the scale and degree of the new demands is so much greater that it may then amount to conduct seriously undermining trust and confidence”, he said.

“I am satisfied the scale of the change in this case was of a sufficient order to amount to a repudiatory breach,” the judge decided.

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Judge Clark also found that the managers were given an “ultimatum of accepting or resigning”, that the changes were imposed on them without consultation, and that they were asked not to discuss them with anyone.

“I am satisfied that was conduct likely to seriously undermine trust and confidence,” he added.

Judge Clark also determined that Boots’ cuts to its number of area managers was in effect a “redundancy” process. “So far as the respondent seeks to establish the factual reason as being something else, it has not done so,” he added.

 

The legal view

 

Mark Pitt, director of defence services at the PDA and a witness for the two claimants, told C+D that the union hopes “a joint training programme might address some of the issues the judge identified in his decision”. 

“The PDA will continue to robustly defend and support individual union members who find themselves in conflict with the company, and we see this case as an opportunity to promote a greater awareness and understanding of the important role a trade union plays in the workplace for the benefit of all concerned,” he added.

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Meanwhile, David Reissner – chair of the Pharmacy Law and Ethics Association – told C+D that this case shows that “while employers have the right to reorganise their businesses, they have to take care to observe legal requirements in how they deal with their employees”.

“If some are made redundant and others keep their jobs while having to take on a substantially larger workload, this may be a redundancy situation even for those who keep their jobs,” he noted.

Employers must also be careful about handling redundancy, he warned. If this is not done properly, “it can give rise to unfair dismissal claims if, as here, the handling of employees who kept their jobs undermined the relationship of trust and confidence that should exist between an employer and an employee”.