An ET ruled that there had been a breach of s. 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 in the case of approximately 1,250 RMT members when their previous employer had made a pay offer to them, and to members of two other trade unions, which the RMT had not agreed to. The ET had held, following the interpretation of s.145B by the Supreme Court in Kostal UK Ltd v Dunkley and others [2021] UKSC 47; [2022] ICR 434, that there had been an “offer”, which had it been accepted, would have had the result that RMT members’ pay would not be determined by collective agreement when there was a real possibility that, but for the offer, the terms in question would have been determined by collective agreement; and that that had been the employer’s purpose in making the offer. The Respondent appealed.

The EAT dismissed the appeal. The Respondent argued that the ET should have held that the agreed collective bargaining process had been exhausted by the time that the offer was made, and therefore that there could not have been a real possibility of the relevant terms being agreed through collective bargaining. However, the ET had made a finding of fact that there had been a realistic chance that the relevant terms would have been collectively bargained at the time that the offer had been made, which could not be overturned. The applicable collective bargaining arrangements had been unstructured and flexible, in contrast with those in Kostal, and had not been exhausted. The ET had also been entitled to hold that the employer had had the prohibited purpose required by s.145B, having taken a business decision that it did not wish to carry on using the agreed collective bargaining procedures. The ET did not err in basing its ruling upon that decision rather than upon the underlying reasons which the employer had for not wanting to continue with collective bargaining.