INEOS Infrastructure Grangemouth Limited v Jones & Ors

For Trade Union and Labour Relations (Consolidation) Act 1992 section 145B, the prohibited result is determined by causation. An individual offer is unlawful where, but for its acceptance, there was a real possibility that the relevant term would have been settled by collective bargaining.

Whether bargaining has ended is assessed objectively. An employer cannot establish that it has ended merely by calling its proposal final. A unilateral implementation of a pay increase may be an offer capable of acceptance by employees continuing to work. Evidence that the employer did not wish to use agreed bargaining arrangements may support the inference that its sole or main purpose was the prohibited result.

Two INEOS group companies appealed against a Glasgow Employment Tribunal decision of 6 March 2018. The Tribunal upheld employees’ complaints under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 after the employers terminated collective bargaining agreements with Unite and implemented a pay increase directly.

The appeals were sisted pending the Supreme Court’s decision in Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47. The factual findings were not challenged. The issues were whether the employer’s communication was an offer, whether it had the prohibited result, and whether the employers’ sole or main purpose was to achieve that result.

1. Appeals refused. The Tribunal made no error of law in upholding the employees’ section 145B complaints.

2. The 5 April 2017 communication was an offer. It stated an intention to implement the pay increase described in the employers’ latest offer. It was properly characterised as an intended contractual variation, accepted by employees continuing to work. The suggested Scots-law unilateral promise was artificial where the proposed variation concerned pay, a fundamental term of the bilateral employment contract.

3. Applying the causation approach in Kostal [2021] UKSC 47, the Tribunal’s findings were consistent with the correct test even though its decision pre-dated that authority. The relevant question was whether there was a real possibility that, without the direct offers, pay would have been determined by further collective bargaining. The Tribunal found objectively that the parties were close to agreement and that agreement was more likely than not through further bargaining.

4. The references to a final meeting and a final offer did not establish that bargaining had ended. They recorded events and the employers’ subjective view. The Tribunal was entitled to rely on the wider evidence, including the expectation of escalation. In the absence of a structured procedure, whether negotiations had ended was a factual and objective question. An employer cannot avoid section 145B simply by describing an offer as final.

5. There was ample evidence that the employers’ sole or main purpose was to achieve the prohibited result. The Tribunal was entitled to rely on the employers’ unwillingness to use the agreed arrangements with Unite, their termination of the collective bargaining agreements, and the email proposing a means of removing Unite. Those matters engaged section 145D(4)(a) and (b).

• Employment Appeal Tribunal: Appeals dismissed; the Glasgow Employment Tribunal’s decision that the section 145B complaints were well founded was upheld.
• Employment Tribunal (Glasgow): By judgment dated 6 March 2018, upheld the employees’ complaints under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 and awarded each employee £3,830.