The Supreme Court clarifies collective bargaining rights while siding with workers

01 November 2021

In a ruling on 27 October 2021 (Kostal UK v Dunkley) the Supreme Court determined that Kostal UK unlawfully approached workers while undergoing collective bargaining with the union. 

Kostal UK made an offer of pay increases and Christmas bonuses on the condition of changes to overtime, sick pay and breaks within the contracts. After this was voted against by the employees through collective bargaining with Unite (the union), Kostal UK approached the employees directly with another offer with a deadline. A further offer was extended after the deadline to those who had not accepted the first. While these offers took place the union was still undergoing the collective bargaining process.

While the workers were awarded compensation by the Supreme Court, the judgement recognised the need for agreements to be in place regarding collective bargaining. An employer may make an offer to an employee if they reasonably believe the collective bargaining process has been exhausted. After the process has ended, the employer may make the adjustments required without negotiation with the union.

It is advisable that, should an employer have such an agreement in place, it clearly defines steps the process will take. Removing ambiguity will mean that it will be clear when the process has ended.

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