The latest on Kostal v Dunkley: UK Supreme Court removes veto threat but requires full collective bargaining before any direct offers

November 4, 2021
Angela Brumpton


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gunnercooke Partner Angela Brumpton has advised Kostal UK ltd on the high-profile case of Dunkley & Others v Kostal UK Ltd, which has now reached a decision in the Supreme Court.

The case focused on the proper interpretation of section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992. Despite Kostal being ultimately unsuccessful on the facts, the decision ruled that 145B should not be interpreted so as to give trade unions an effective veto in collective bargaining (as had been the case following the EAT’s judgment). 

The judgment provided that employers can make direct offers to workers to change their terms and conditions but only after collective bargaining has been attempted and the employer is satisfied that the process has been exhausted.

This gives much needed clarity for both employers and unions as to their options and obligations when agreement cannot be reached during collective bargaining.

Angela Brumpton commented: “Whilst this was a disappointing result for our client on this case, employers in general will no doubt be content with the Supreme Court decision, which removes a considerable degree of risk where collective bargaining has been exhausted.”

The appeal against gunnercooke’s client Kostal was made by the union, Unite. More than 50 claimants have been awarded two fixed penalties in respect of two alleged inducements.

The case began in 2015 and has since been fought through the Sheffield ET, EAT and Court of Appeal.

View the full judgment here.

Thompsons advised the current Appellants. Leading counsel includes Andrew Burns QC and Georgina Hirsch of Devereux Chambers for Kostal UK Ltd. Oliver Segal QC and Stuart Brittenden of Old Square Chambers are for the Appellants.

Angela Brumpton is an Employment Partner at gunnercooke covering the full spectrum of employment law advice across a range of sectors including complex cases and tribunals.