For fellow s145b TULRCA nerds out there, here's another case just handed down by the Employment Tribunal. A handful of union members netted £72,864, after their bosses refused to negotiate over pay.    

In Smith and Others v London Ashford Airport, nine air traffic controllers from LYDD Airport in Kent won their claims for unlawful inducement following the principles of the well-known Supreme Court authority of Kostal UK Ltd v Dunkley and ors. This case is a first instance case only and does not set a precedent for others.  However, it is a cautionary tale for employers tempted to de-recognise their trade union.

The employer inherited a collective bargaining agreement when it in-sourced its air traffic controllers in 2020.  It is not unusual for this to happen, or for the receiving employer in a TUPE situation to feel negatively towards a union deal struck by others.

This agreement with the Prospect trade union covered a small but distinct bargaining group of the air traffic controllers only, granting them rights to negotiate on pay and holidays once a year. During Covid, there were no pay rises (so the collective bargaining agreement was effectively ignored). In late 2022, Prospect sought pay talks. They were told to wait until late Spring 2023 when financial data would be available.  

The employer then served six months' notice on Prospect's collective bargaining agreement in January 2023.  In February it wrote to all staff announcing across-the-board standard pay rises worth 5% that year with a further rise the following year. In April 2023, workers received a follow up letter, inviting them to sign to confirm, and the pay rises were processed to staff that month. Both the February and April communications were held by the Tribunal to amount to 'unlawful offers' under s145b TULRCA as they were made directly to employees covered by the collective agreement but had not been agreed with the union. Most of the successful claimants, having received both communications, won 2 x £4,554 = £9,108.  (Note that the standard penalty for this breach has now gone up from £4,554 to £5,584 per offer).

While these events were going on, the employer exercised its right to terminate the voluntary collective bargaining agreement. Of course, voluntary recognition agreements can simply be terminated by employers without immediate legal consequences.  Employers who do this must weigh the risk of strike action being taken.

Another practical risk, which happened here, is that if the union is sufficiently confident in its support/membership level, it can immediately seek to regain its position via the statutory route provided by the Central Arbitration Committee (CAC). Here the union, which enjoyed 100% membership among the air traffic controllers, acted the day after its old agreement expired, making an initial statutory recognition request on 19 July 2023, applying to the CAC on 3 August 2023 and having formal statutory recognition declared by the CAC on 21 September 2023 covering the usual formula of pay, hours and holiday.   It appears therefore as if the union gained ground here by securing a deal on pay, hours and holidays instead of just pay and holidays.

Points for employers to consider:

• In our experience unions are more willing than ever to bring claims for statutory recognition to the Central Arbitration Committee (CAC) where the thresholds for recognition are fairly low. Only 10% membership is required to get an application off the ground, leaving unions time and opportunity to agitate to attain the necessary support from the workforce.
• The CAC recognition mechanism moves quickly (in the above case Prospect was essentially reinstated within 2 months).
• To avoid being 'back where you started', take a realistic view of the membership density within the bargaining group.
• As the CAC grants rights to negotiate on pay, hours and holidays only, for certain employers this might be more attractive than their heavyweight legacy collective agreements, which often grant more sweeping negotiation rights.
• A successful group claim under s145b (as in this case) will be more costly to the employer than a conventionally negotiated pay rise.
• There may be cases where it is appropriate and lawful to impose a pay rise on staff in a true stalemate.  To avoid liability under s145b the employer needs to exhaust the collective bargaining procedure first (including any disputes procedure and possibly including ACAS, if this is what the collective bargaining agreement provides for).  Bespoke legal advice should be taken in this situation.