Stuart Brittenden has contributed to the UK Labour Law Blog, alongside Richard Arthur from Thompsons, on “The right to trade union representation: Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47”.
On 27 October 2021 the Supreme Court (“SC”) handed down judgment in Kostal UK Ltd v Dunkley & Ors [2021] UKSC 47. This is the first occasion that the SC has examined collective bargaining and the rights of trade union members. It is profoundly important, acknowledging that the right to be represented by a trade union in the context of collective bargaining is a fundamental component of freedom of association as recognised by Article 11 ECHR.
This is also the first occasion that the appeal courts have considered the reach of the inducement provisions contained within section 145B of the Trade Union & Labour Relations (Consolidation) Act 1992 (“TULRCA 1992”). Section 145B was introduced by section 29 of the Employment Relations Act 2004, principally in response to the ECtHR ruling in Wilson/Palmer v United Kingdom[2002] IRLR 568, which found that the United Kingdom had acted in breach of its positive obligations to ensure the effective enjoyment of rights to freedom of association under Article 11 ECHR. At that time, employers were able to offer sweeteners or a “douceur” to workers to surrender their rights to have their terms negotiated by their union by means of collective bargaining. Those who did not surrender their rights received less favourable terms than those who did.
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