L Brown & P Findlay Ms F Abbott v - Solicitor Browns Manufacturing Ltd — 2024

The tribunal heard a claim under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 arising from Browns Manufacturing Ltd's posting of new Group Pay Rates from 1 April 2023 while collective pay negotiations were still ongoing. The lead claimant, Ms F Abbott, was employed at the Kirkconnel site, was paid hourly, and was a member of the relevant trade union during the relevant period. The respondent recognised the union for collective bargaining on pay for hourly paid workers at that site.

The parties agreed that the notice and the pay increase constituted an 'offer' that achieved the prohibited result under section 145B(2). The dispute was whether the respondent's sole or main purpose in making the offer was to achieve that result. The tribunal recorded that the respondent said it imposed the rate to comply with national minimum wage requirements, to give employees a pay increase during the cost of living crisis, and to maintain agreed differentials while collective bargaining continued.

The tribunal found that the respondent was lacking in candour at the time it imposed the rate because it did not explain those reasons to the union or staff when the notice was posted, and the notice itself appeared as if the new rates had simply been imposed. It also accepted that the union reasonably understood the posting to be a final position. However, after hearing the evidence, especially from Ms Noble, the tribunal found that the respondent was still engaging with the collective bargaining machinery, continued to meet the union, and was seeking agreement rather than abandoning collective bargaining.

Applying section 145B and the approach in Kostal, the tribunal concluded on balance that the respondent's main purpose was not to achieve the prohibited result. It held that compliance with minimum wage requirements, maintaining previously agreed differentials, and giving employees a pay increase were the main reasons for the offer. The claim was therefore dismissed as ill founded, and no award was made.