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Collective bargainingLatest NewsEmployment lawTrade unions

Unlawful inducements decision overturned by Court of Appeal

by Jo Faragher 13 Jun 2019
by Jo Faragher 13 Jun 2019 Initial tribunals asserted that the employer had unlawfully induced employees with a direct pay offer
Initial tribunals asserted that the employer had unlawfully induced employees with a direct pay offer

The Court of Appeal has overturned a key employment tribunal and Employment Appeal Tribunal decision on whether employers can offer inducements to workers to influence their relationship with unions.

In this case of Kostal UK v Dunkely & Others, automotive parts company Kostal sent letters to employees asking them to agree a pay deal that had been rejected by their trade union. The employer stated in the letters that a result of staff not agreeing to the pay deal on the table was that it would be unable to pay them their Christmas bonus that year.

Working with trade unions

Direct pay offers ‘over the heads of the union’ were unlawful inducements  

The consequences of trade union recognition 

However, Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 prohibits an employer from making offers to members of a recognised trade union (or one seeking to be recognised), where the purpose of the offer is to cease collective bargaining.

When the case reached the EAT, it held that the employer offered unlawful inducements when it attempted to bypass collective bargaining with a trade union by making pay offers directly to the union’s members, upholding the previous decision of the Sheffield Employment Tribunal.

The tribunal decided that Kostal had breached the legislation and was liable to pay a fixed penalty (then £3,800, currently fixed at £4193.00) to each affected employee.

Kostal appealed, and the case was heard by the Court of Appeal on 22nd May. The company argued that the financial risk employers could face if such a case was brought to tribunal gave the union a de facto veto over any changes to terms and conditions proposed by the employers.

The Court of Appeal unanimously found in Kostal’s favour. Setting aside the previous decisions, it agreed that the ET’s construction of Section 145B “gives a recognised trade union an effective veto over any direct offer to any employee concerning any term of the contract, major or minor, on any occasion”.

Angela Brumpton of law firm gunnercooke, which acted for Kostal UK, said: “We have always maintained the effect of the original ET decision represented a paradigm shift in industrial relations in the UK.

“This decision will come as a relief to employers faced with a situation where collective bargaining has reached an impasse, and they wish to approach employees directly.”

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Jo Faragher
Jo Faragher

Jo Faragher has been an employment and business journalist for 20 years. She regularly contributes to Personnel Today and writes features for a number of national business and membership magazines. She won the Willis Towers Watson HR journalist of the year award in 2015 and has been highly commended twice.

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1 comment

Avatar
G Monk 14 Jun 2019 - 1:59 pm

Well thank goodness that at long last sense has reigned over stupidity, and for once an employer has come out on top. The pendulum has swung far too far.

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