Kostal UK Ltd v Dunkley & Ors UKEAT/0108/17/RN

Appeal against a decision that the Respondent had breached section 145B of TULR(C)A after it had contacted employees individually in an effort to reach agreement about their terms and conditions. Appeal dismissed.

The Respondent had been negotiating with the trade union in respect of certain terms and conditions of the employees' contract of employment. It then decided to contact the employees directly, making 2 offers on 2 separate occasions, thereby circumventing the collective bargaining process, which, in the ET's view, breached section 145B of TULR(C)A. The offers created the prohibited result which was that the workers' terms of employment, or any of those terms, "will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union". The ET made two awards of £3,800 each to those Claimants who received two unlawful offers. The Respondent appealed.

The EAT dismissed the appeal. The prohibited result occurs where offers, if accepted, result in new terms agreed directly and not through collective negotiations, whatever else is agreed through collective bargaining. There is no warrant for reading in a requirement that the terms will not in the future or will no longer in the future be determined collectively. Further, the ET made no error of law in interpreting the prohibited result and accordingly, no error in determining the Respondent's sole or main purpose in making the offers. Nor was there any error of law by the ET in making two awards of £3,800 each to those Claimants who received two unlawful offers.


Published: 21/12/2017 12:33

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