London North Eastern Railway Limited & Anor v Nimu Jiwanji & Ors

Liability under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 requires an offer to a union member, a prohibited result and the employer’s sole or main purpose of achieving that result. The prohibited result requires a real possibility that, without the offer, the relevant terms would have been determined by collective agreement. Whether bargaining remained live depends on the agreed arrangements and the objective circumstances; with a flexible process, exhaustion cannot be decided by a formal step alone. For prohibited purpose, a tribunal may treat an employer’s decision not to use agreed bargaining arrangements as evidence of an intention to bypass collective bargaining. The business reasons motivating that decision do not replace the statutory inquiry.

London North Eastern Railway Limited & Anor v Nimu Jiwanji & Ors concerned an appeal by the employees’ later employers after their employment transferred from Virgin Trains East Coast Ltd (VTEC). VTEC had made a direct pay offer to approximately 1,250 RMT members after they rejected a proposed award. The Employment Tribunal found that the offer breached section 145B and awarded £3,907 to each claimant.

The appellants accepted that an offer had been made. They argued that collective bargaining had already ended, so there was no real possibility of a collective agreement, and that VTEC’s purpose was its legitimate business reasons for ending negotiations. The appeal challenged the Tribunal’s findings on prohibited result and prohibited purpose.

1. Appeal dismissed. The EAT applied the three elements of section 145B(1) of the Trade Union and Labour Relations (Consolidation) Act 1992: an offer to members of a recognised union, acceptance producing the prohibited result, and the employer’s sole or main purpose of achieving that result. The offer element was not challenged.

2. For the prohibited result under section 145B(2), Kostal UK Ltd v Dunkley and others [2021] UKSC 47; [2022] ICR 434 requires a real possibility that, absent the offer, the relevant terms would have been determined by collective agreement. Whether bargaining was exhausted must be assessed in light of the agreed process and the circumstances. Here the collective bargaining agreement was flexible and unstructured, unlike the prescribed process in Kostal. The Tribunal was entitled to assess objectively whether negotiations were in fact at an end, including possible discussions with the RMT outside the Joint Committee. The Committee’s failure to declare negotiations concluded was one factor, not determinative; the agreement did not give one union a veto. The Tribunal’s finding of a real possibility of agreement was not challenged as perverse.

3. Ineos Infrastructure Grangemouth v Jones [2022] IRLR 768 supported that fact-sensitive approach where bargaining arrangements are unstructured. The Tribunal was entitled to find that VTEC had decided not to continue with collective bargaining, rather than genuinely believing that bargaining had ended.

4. For prohibited purpose, the Tribunal correctly considered the subjective purpose of VTEC’s management and the evidence identified in section 145D(4)(a), including VTEC’s decision not to use the agreed arrangements. It did not have to treat the business reasons motivating that decision as the statutory purpose. Doing so would undermine the provision, since employers will usually have business reasons for bypassing collective bargaining. The discrimination cases, including Ahmed v Amnesty International [2009] ICR 1450, were not a helpful analogy because they arose under different statutory wording and purposes. The EAT also observed that benign reasons do not answer a breach of a policy-based prohibition.

5. A further argument raised for the first time at the hearing was not properly before the EAT: it was absent from the notice of appeal, permission to raise it had not been sought, and the claimants had no notice. The EAT also rejected it on its merits. The appeal was dismissed.

1. Employment Appeal Tribunal: appeal dismissed: [2026] EAT 102 .
2. Employment Tribunal: found that VTEC had breached section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 and awarded £3,907 to each of approximately 1,250 claimants. The Tribunal citation is not stated in the judgment.