Court Decision Weakens Union’s Collective Bargaining Rights

In businesses that have recognised an independent trade union and are therefore obligated to follow collective bargaining rules, attempts to negotiate contractual terms with employees can be slower and more complicated than some employers would like.  Such employers should therefore take notice of a recent Supreme Court decision, diluting the rights of a union is those circumstances.
 
Background
In simple terms, collective bargaining is the process by which staff, through their unions, negotiate contracts with their employers to determine their terms of employment.  This can include negotiating:
 
·         pay,
·         benefits,
·         hours,
·         leave,
·         health and safety policies, and
·         ways to balance work and family.
 
One of the key rules of collective bargaining is that it is unlawful for an employer to make an offer to a worker who is a member of a recognised independent trade union (or one that is seeking to be recognised), if the primary aim is to prevent the employee’s contractual term from being determined by collective agreement.
 
Change in Law
A recent case, however, established an exception to this rule, holding that employers may lawfully make direct offers to workers to change a contractual term, provided that the change to the worker’s contractual term could not have been determined by a new collective agreement
(Kostal UK v Dunkley [2019]) .  Thus, there is nothing to prevent an employer from making an offer directly to workers if the employer has first followed, and exhausted, the agreed collective bargaining procedure.  Essentially, attempts by employers to cut the union out of such negotiations completely are unlawful but employers can go round the union, where negotiations have stalled.
 
Comment
The effect of this judgment allows employers to circumvent collective bargaining processes and make direct offers to workers in respect of specific contractual terms, in certain limited circumstances.  In doing so, it significantly weakens the previously understood scope of the protection of union members set out in legislation.  Employers must, however, have thoroughly explored the collective bargaining process before taking such a step.  Specific advice should therefore be sought in relation to individual circumstances.
 
If you would like to advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 926 9969 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK