Expect quicker claims for inducement
The Trade Union and Labour Relations (Consolidation) Act 1992 prohibits employers from inducing their workers to bypass collective bargaining by offering employees new terms and conditions that will not be determined through negotiation with the union. In Scottish Borders Housing Association Limited v Caldwell and Others employees had brought claims in respect of the employer’s breach of this prohibition but the issue was whether the claims had been brought within the three month time limit.
After two years of negotiation the employer and union had still failed to reach agreement regarding proposed amendments to pay terms. On 18 September 2019, the employer wrote to employees directly asking them to agree to the new terms. Most accepted and the remainder were told on 13 December 2019 that the new terms would come into effect in any event on 16 January 2020. These employees submitted claims alleging unlawful inducement related to collective bargaining on 28 January 2020.
The employees had relied upon the communication on 13 December as being the trigger for the three month time limit. It was held however that the time limit had been triggered by the letter of 18 September 2019. That letter had contained the offer of new terms and conditions. The subsequent communication on 13 December was not an offer but, instead by stating an intention to impose new terms, constituted an anticipatory breach of contract. They claims were therefore out of time.
Key takeaway points
This is the first reported case to have considered what is meant by an ‘offer’ in relation to inducement and collective bargaining. It is likely to lead to unions advising members to issue claims as soon as any offer is made rather than waiting to see if the employer will enforce the proposed changes on them. This may result in more claims and employers needing to be more careful when communicating directly with employees relating to contract changes where a union is recognised or is seeking to be recognised.
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