Counting the Kost(al)…

So the Court of Appeal (CA) has overturned both ET and EAT in the “inducements” case known as Kostal UK Ltd v Dunkley and ors.

See my employment law update for more details about the decision.

I always did think that EAT was brave, upholding the ET decision.  Two letters from management and dozens of workers get £7K individual payouts?

At first blush that’s a surprising windfall, and I suspect the Court of Appeal have been more than a little put off by the six-figure shock to the system that knocked Kostal off its lofty perch.

The CA says that s.145B has to concern a permanent attempt to subvert the collective bargaining process.

But that’s not what s.145B says.

And what of the employer who reads this and says… “so as long as we only go over the Union’s head every now and then, we’ll get away with it”?  Because that’s where we end up.  An army of Respondent lawyers (the same ones who tell us that everything is inside the band of reasonable responses!) arguing that nothing is permanent.  The Union was only kicked into the long grass for a week or 2, because negotiations had broken down.  Of course the company will be back to the negotiating table next time.  At least until the Union shows signs of not bending the knee… since then it’ll be back to direct approaches to the workforce.  But not on a permanent basis.  Obviously.

With respect I’m going to disagree with the CA.  If they had wanted to tone down the decision as little, it would have been easy enough to halve the awards by saying that really the two inducements were part and parcel of the same thing.

But as it stands, instead, we have yet another right to support collective action diluted till it has no teeth at all.

The most successful EU countries seem to have the best collective bargaining arrangements.  It’s no coincidence that pay and workers’ rights generally have all suffered under a neo-liberal vision of individualism that has consistently resisted the collective.  It’s dogma, and it’s not working.

Employees don’t have a level playing field with their employers. S.145B and its ilk – and frankly there ain’t many of them – exist to support Unions trying to redress that balance.  I’d like to see the Supreme Court help them do that.

Paul Scholey - Senior Partner


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