Page 25 - BOSS Today Issue 45

DOWN TO BUSINESS – BARGAINING POWER BOSS Today #45

on which an Employment offering even the most minor changes in terms
Tribunal can reduce this award. a rise of 4%, and conditions. The law was designed
In the case of Kostal UK Ltd v and threatening to prevent the offering of inducements
Dunkley and others, the Court of Appeal dismissal if to opt out of collective bargaining
gave particular attention to the motive the new offer altogether. In this instance, Kostal was
of the employer and whether the offer was not accepted. not hostile to the Union, since the offers
made to the employees was intended Several employees were made to the whole workforce
to achieve the result of taking the brought claims in the Employment and each employee could continue
terms of employment out of the scope Tribunal, claiming breach of section to be represented by the Union.
of collective bargaining permanently. 145B. The Tribunal agreed with the The decision confirms that an
In 2015 Kostal, an automotive Claimants and awarded compensation employer is able to propose new terms
parts company, attempted to reach to each employee, resulting in a bill directly to employees where an impasse
agreement with the recognised Trade of £433,000 for the employer. Kostal in collective negotiations is reached,
Union, Unite, for the 2016 pay awards. appealed to the Employment Appeal provided there is no intention of
Kostal had proposed a 2% increase in Tribunal, which agreed with the bringing to an end collective bargaining
basic pay (plus an additional 2% for verdict, finding that the direct offers of those terms in the longer term. We
those on less than £20,000) along with made to the employees amounted understand that Unite has applied for
a Christmas bonus. However, Unite did to the employer going over the head permission to appeal to the Supreme
not recommend the deal to its members of the Union to achieve the result Court. so there remains a need for
and negotiations reached a stalemate. that one or more terms would not caution, and employers are advised
Kostal wrote to every employee setting be determined by the collective to ensure that they follow agreed
out the offer in identical terms and agreement with the Union. collective bargaining procedures as a
explaining that unless the deal was Kostal then appealed to the Court of matter of course wherever possible.
agreed by 18 December there would Appeal, which took a different view.
be no Christmas bonus. The following The Court held that it was ‘extremely For more information, please contact
January, Kostal wrote to the employees unlikely’ that Parliament had intended Nicola Langley, Head of Legal & Commercial
who had not yet accepted, this time to effectively give Unions a veto over Solicitor, at nicola.langley@bpif.org.uk

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