Section 145B of the 1992 Act, so far as material, provides: “(1) A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if — (a) acceptance of the offer, together with other workers’ acceptance of offers which the employer also makes to them, would have the prohibited result, and (b) the employer’s sole or main purpose in making the offers is to achieve that result. (2) The prohibited result is that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.”
The claimants were members of a trade union which had sole recognition and bargaining rights with the employer. Following the rejection by trade union member employee of a pay offer which included a Christmas bonus to be paid in December and which also proposed changes to their terms and conditions of employment, the employer sent letters to all employees explaining that, if the offer was not accepted by a specified date in December, employees would not receive the Christmas element of the offer and it could not be paid at a later date. In the following January the employer wrote letters to employees who had not yet accepted the offer stating that the proposed changes would not be implemented without their agreement and warning that, in the event that no agreement could be reached, that might lead to the employer giving them notice. The claimants, having received both letters, brought claims alleging that the letters infringed their right under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 not to have an offer made by their employer which, if accepted, would have the “prohibited result” that their terms of employment would no longer be determined by the collective agreement. An employment tribunal, upheld the claims and made two separate awards of compensation under section 145E(2). On the employer’s appeal, the Employment Appeal Tribunal upheld the tribunal’s determination, on the ground that acceptance of direct offers by workers meant that at least one term of employment would as a consequence of acceptance be determined by direct agreement whenever that occurred, and not collectively. The EAT held that the present situation fell within section 145B and it made no difference that the result was temporary rather than permanent.
On the employer’s further appeal—
Held, appeal allowed. The “prohibited result” provisions of section 145B(1)(2) of the 1992 Act were apt to apply in two types of case. The first was where an independent trade union sought to be recognised and the employer made an offer the sole or main purpose of which was to achieve the result that the workers’ terms of employment would not be determined by a collective agreement. The second type of case was one where, in circumstances where an independent trade union was already recognised and the workers’ terms of employment were determined by collective agreement negotiated by or on behalf of the union, the employer made an offer the sole or main purpose of which was to achieve the result that the workers’ terms of employment (as a whole), or one or more of those terms, would no longer be determined by collective agreement. “No longer” clearly indicated a change taking the term or terms concerned outside the scope of collective bargaining on a permanent basis. However, section 145B(1)(2) did not extend to the circumstances of the present case, where an independent trade union was recognised, the workers’ terms of employment were determined by a collective agreement negotiated by or on behalf of the union, and the employer made an offer the sole or main purpose of which was to achieve the result that one or more of the workers’ terms of employment would not, on that one occasion, be determined by the collective agreement. In such a case the members of the union were not being asked to relinquish, even temporarily, their right to be represented by their union in the collective bargaining process. All that had happened was that the employer had gone directly to the workforce and asked them whether they would agree a particular term on that occasion. Due to the penal nature of section 145B to include that third category of case within the definition of “prohibited result” would give a recognised trade union an effective veto over any direct offer to any employee concerning any term of the contract, major or minor, on any occasion. Accordingly, the decisions of the employment tribunal and the majority in the EAT would be set aside and the claims dismissed (paras 49–53, 55, 56, 57).
Andrew Burns QC and Georgina Hirsch (instructed by Gunnercooke llp, Manchester) for the employer.
Stuart Brittenden and Bruno Gil (instructed by Thompsons Solicitors, Newcastle upon Tyne) for the claimants.