Kostal UK Ltd v Dunkley and others

Kostal UK Ltd v Dunkley and others

An employer contravenes section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 if it makes direct offers to union members, bypassing agreed collective bargaining procedures, and acceptance of those offers would result in terms not being determined by collective agreement, when there was a real possibility that collective agreement would otherwise have been reached. The employer's main purpose in making the offers was found to be to circumvent collective bargaining, not a genuine business purpose.

Parties
Respondent: Kostal UK Ltd; Appellants: Dunkley and others
Jurisdiction
England and Wales
Judgment Date
27 October 2021
Procedural Posture
Labour/employment Appeal / Supreme Court Judgment on Appeal From Court of Appeal
Outcome
Appeal allowed
Legal Topics
Collective Bargaining, Trade Union Rights, Employer Inducements, Interpretation of Section 145 B Trade Union and Labour Relations (consolidation) Act 1992, Article 11 ECHR Compliance
Labour Law Employment Law Human Rights Law Collective Bargaining Trade Union Rights Employer Inducements Interpretation of Section 145 B Trade Union and Labour Relations (consolidation) Act 1992 Article 11 ECHR Compliance

Case Brief

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Parties

Kostal UK Ltd

Respondent

Dunkley and others

Appellants

Procedural Posture

Labour/employment Appeal / Supreme Court Judgment on Appeal From Court of Appeal

Legal Issues

  1. 1 Whether direct offers by an employer to union members, bypassing collective bargaining, contravene section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992
  2. 2 Proper interpretation of 'prohibited result' under section 145B(2)
  3. 3 Whether the employer's main purpose was to achieve the prohibited result

Ratio Decidendi

An employer contravenes section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 if it makes direct offers to union members, bypassing agreed collective bargaining procedures, and acceptance of those offers would result in terms not being determined by collective agreement, when there was a real possibility that collective agreement would otherwise have been reached. The employer's main purpose in making the offers was found to be to circumvent collective bargaining, not a genuine business purpose.

Court Disposition

Appeal allowed

Orders

  • The appeal is allowed; the finding of the Employment Tribunal is restored, holding that the employer contravened section 145B.
  • Statutory awards to claimants are reinstated.