When an employer makes an 'offer' to employees covered by collective bargaining to change terms and conditions, does time run for making a tribunal claim for an inducement to forego collective bargaining run from the date of that offer, or from when the employer imposes the change?
From the offer, held the EAT in Scottish Borders Housing Association v Caldwell & others.
The employer's negotiations with the recognised union over a new pay scheme collapsed. In September 2019, the employer wrote to 104 staff offering a new pay structure, 8 employees did not accept it. In December 2019, the employer wrote to those 'holding out' telling them that the new terms would come into effect in January 2020. The Claimants put in tribunal claims in February 2020 for a breach of s145B Trade Union and Labour Relations (Consolidation) Act 1992 - the right for trade union members not to be made an offer outside the scope of collective bargaining. The time limit was 3 months from that offer. If the offer was made only in the September letter, the claims were out of time; if the December letter was also an 'offer', the claims were in time.
The tribunal held that the December letter was an offer, but the EAT disagreed. It was not a fresh offer, so time did not start to run again for the Claimants. It intimated a unilateral intention to impose new terms, this cannot be said to have been an offer, construing the letter objectively on its terms. It had not been argued that it was not reasonably practicable to have put the claims in sooner, so the claims were dismissed as out of time.
Thanks to Ed McFarlane of Law at Work for preparing this case summary.