Ms N Jiwanji & others (see attached schedules) v 1 East Coast Main Line Company Limited 2 London North Eastern Railway Limited 3 Hitachi Rail Europe Limited — 2022

The tribunal held that VTEC's 13 November 2017 workforce communication was made in the context of unresolved collective bargaining over the 2017 pay award. The workforce comprised employees covered by the collective bargaining agreement, and the claimants were RMT members. TSSA and Unite had accepted the final offer after bargaining, but the RMT had rejected it. The communication told RMT members they could opt out of the award, and the claimants said that this was an offer made in contravention of section 145B of the 1992 Act.

Applying Kostal and preferring the analysis in Ineos to Caldwell, the tribunal held that the communication was an offer capable of acceptance or rejection. It rejected the respondents' submission that agreement by two of the three unions had already created a collective agreement binding on all employees. On the construction of the collective bargaining agreement, the tribunal found that agreement meant agreement by all parties, and that no collective agreement had been reached in November 2017. It also held that the collective bargaining process had not been exhausted: the JNC process contained no structured rule for deciding exhaustion, the parties were objectively close to agreement on the outstanding issues, and there remained a real possibility that the terms would have been determined by a new collective agreement if the direct offer had not been made.

On purpose, the tribunal found that VTEC did not make the 13 November 2017 communication because collective bargaining was already at an end, but because management had decided it did not wish to continue bargaining on that occasion and wanted to implement the pay award unilaterally. Relevant reasons included the RMT's change of position, the tone of communications from the union, and the desire to get back pay into the December payroll. The tribunal therefore found the prohibited purpose under section 145B(1)(b) was made out, held the claims well-founded, and ordered the fixed lump sum award of £3,907 under section 145E.