Neos Infrastructure Grangemouth Ltd v Jones and Others: EAT 6 Jun 2022

Trade Union Rights – This is an appeal by two companies against a Judgment of the Employment Tribunal sitting in Glasgow which held that claims by two employees in terms of section 145B of the Trade Union and Labour Relations Consolidation Act 1992 were well founded. These cases had been sisted since 2018 pending the decision of the Supreme Court in Kostal UK Ltd v Dunkley and Ors [2021] UKSC 47. Kostal addressed for the first time the proper approach to claims under s 145B and enunciated the proper legal test, being one based on principles of causation. Parties were agreed that the decision in Kostal was directly applicable to these cases, but each argued that the decision supported their respective positions. There was no challenge to any of the findings in fact made by the Tribunal.
The issues in each case were (i) whether an ‘offer’ had been made to employees which engaged s 145B at all, (ii) if so, whether such offer had the ‘prohibited result’ and (iii) what was the employers purpose in making the offers.
The Tribunal held firstly that the communication sent to employees was of the nature of an offer, rather than a ‘unilateral obligation’ as contended for by the employers, secondly that those offers had achieved the prohibited result, and thirdly that the employers sole or main purpose had been to achieve that result.
Held, refusing the appeals, that there was no error of law in the approach of the Tribunal to the question of whether or not the communication sent to the employees was an ‘offer’. Further, that although the decision of the Tribunal predated that in Kostal and therefore that it had not directly applied the causation test as now laid down, it had addressed its mind, presciently, to the right question and its decision was therefore entirely consistent with that in Kostal and no error of law had been demonstrated. Finally there was ample evidence before the Tribunal to permit is to conclude that the employers’ sole or main purpose had been to achieve the prohibited result and no error of law was demonstrated in that aspect of their reasoning either.


[2022] EAT 82




England and Wales


Updated: 07 July 2022; Ref: scu.678574