- Unionised workforces—when is a direct offer to workers lawful? (Kostal UK Ltd v Dunkley and others)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Majority view: focus on result not content of offer
- When is collective bargaining exhausted?
- Minority view
- Case details
Employment analysis: Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), prohibits employers from making offers to workers with the sole or main purpose of undermining collective bargaining, known as 'the prohibited result'. The Supreme Court has held that an employer's direct pay offer to workers, bypassing stalled collective bargaining constituted an unlawful inducement. The question is whether there is a real possibility that, had the offer not been made and accepted, the relevant term for the period would have been determined by a new collective agreement. If there was no such possibility then it cannot be said that making the individual offer caused the ‘prohibited result'. Accordingly an employer may make an offer directly to its workers but only where the employer has first followed, and exhausted, the agreed collective bargaining procedure. What an employer cannot do is make a direct offer before the collective bargaining process has been exhausted. Written by Jane Fielding, partner and Connie Cliff, PSL principal associate at Gowling WLG.
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