S145B of the Trade Union and Labour Relations Consolidation Act 1992 (“the 1992 Act”) is an under explored provision which has only just received the attention of the Court of Appeal, and has only once been considered by the EAT. It is important because some 26.3% of UK workers remain subject to collective bargaining but many employers seek every year to decouple from collective agreements in one form or another wholly or in part to buttress the managerial prerogative.
It can be very expensive for an employer to offer an inducement to employees above the head of the union and this may be the case even though many or indeed most terms of the contract continue to be negotiated by the employer with the union and where there is no anti-union animus on the part of the employer (so that for example the employer was reacting to a breakdown in negotiations with the union).
There is a difference between what might be called blatant and marginal cases of anti union hostility and Kostal UK Ltd v Dunkley was a good test case as there was a payment made to employees where there was no union hostility on the part of the employer yet the employment tribunal found that s145B was engaged although this was corrected by the Court of Appeal.
The section was passed to deal with a specific practice which was condemned by the ECHR in Wilson, Palmer and Doolan v UK (henceforth Wilson) and the section has no precise analogues. In Wilson the employers made payments to employees to encourage them to decouple from collective bargaining.
  ICR 768
It is a commonly found provision in an individual contract that “terms and conditions are to be set according to the collective agreements reached from time to time with the relevant trade union”. It is the removal of a term such as this on which the section normally bites.
 (2002) 35 EHRR 20
 The facts were somewhat different in the various conjoined cases, the Associated Newspapers offered a 4.5% increase in basic pay to decouple from collective bargaining, in the ABP case which concerned the ports of Southampton and Cardiff it was a 10% pay rise and free medical insurance which were offered if employees signed up to personal contracts;
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