The Claimants won their claims relating to s145B of the Trade Union and Labour Relations (Consolidation) Act 1992, the ET holding firstly that the communication sent to employees was of the nature of an offer, rather than a ‘unilateral obligation’ as contended for by the employers, secondly that those offers had achieved the prohibited result, and thirdly that the employers sole or main purpose had been to achieve that result. The employers' appeal against this decision had been sisted since 2018 pending the decision of the Supreme Court in Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47.

The EAT dismissed the appeal. There was no error of law in the approach of the ET to the question of whether or not the communication sent to the employees was an ‘offer’. Further, that although the decision of the ET predated that in Kostal and therefore that it had not directly applied the causation test as now laid down, it had addressed its mind, presciently, to the right question and its decision was therefore entirely consistent with that in Kostal and no error of law had been demonstrated. Finally there was ample evidence before the ET to permit is to conclude that the employers’ sole or main purpose had been to achieve the prohibited result and no error of law was demonstrated in that aspect of their reasoning either.