It is unlawful for an employer to bypass collective bargaining by making an offer of new terms directly to individual trade union members where the main purpose of the offer is to set a term of employment other than by collective bargaining. The Court of Appeal has overturned the EAT decision in Kostal UK Ltd v Dunkley (see here) and held that this does not prevent an employer making a one off direct offer to workers to change a contractual term, provided that the employer’s sole or main purpose is not to take the relevant term outside of the scope of collective bargaining on a permanent basis. Leave to appeal is being sought.
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