Employment Cases Update

Kostal UK Ltd v Dunkley and others [2019] EWCA Civ 1009

Date published: 21/06/2019

Appeal against the EAT’s judgment affirming the Claimants’ claims that offers made to them by the Respondent breached their rights under s 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (“1992 Act”). Appeal allowed.

The Respondent had been negotiating with the trade union, of which all of the Claimants were members, 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 s 145B of the 1992 Act. The EAT upheld the ET's decision. The Respondent appealed, arguing principally that the majority of the EAT and the ET erred in their interpretation of "prohibited result", and they should have held that "prohibited result" means that the terms after acceptance by the worker will not (or will no longer) (i.e. in the future) be determined by collective agreement negotiated by or on behalf of the union.

The Court of Appeal held that the "prohibited result" provisions of s 145B(1)–(2) of the 1992 Act should be construed so as to cover 2 situations: (1) where an independent trade union is seeking to be recognised and the employer makes an offer whose sole or main purpose is to achieve the result that the workers' terms of employment will not be determined by a collective agreement; and (2) where an independent trade union is already recognised, the workers' terms of employment are determined by collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that the workers' terms of employment (as a whole), or one or more of those terms, will no longer be determined by collective agreement; but not, as in this case, where an independent trade union is recognised, the workers' terms of employment are determined by a collective agreement negotiated by or on behalf of the union, and the employer makes an offer whose sole or main purpose is to achieve the result that one or more of the workers' terms of employment will not, on this one occasion, be determined by the collective agreement. Accordingly, the decisions of the ET and the majority in the EAT would be set aside, the claims dismissed, and the appeal allowed.

Employment Claims without a Lawyer 2nd edition published March 2018

Read the full text of the judgment on BAILII or download the file by clicking the link below.