London North Eastern Railway Limited & Anor v Nimu Jiwanji & Ors [2026] EAT 102

[2026] EAT 102Case No EA-2022-001206-AT
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 16 July 2026
Before
THE HONOURABLE MR JUSTICE COPPELMR HARMINDER SINGHMR NICK AZIZ
Between
LONDON NORTH EASTERN RAILWAY LIMITEDAppellantHITACHI RAIL LIMITEDAppellant- and –
Between
NIMU JIWANJI (AND OTHERS)RespondentCAROLINE COULSONRespondentPAUL DARBYRespondent
John Bowers KC and Jason Galbraith-Marten KC (instructed byEversheds Sutherland LLP) for AppellantsOliver Segal KC (instructed by Thompson Solicitors LLP) for First RespondentsThe Second and Third Respondents were not legally representedHearing Hearing dates: 18 and 19 March 2026
JUDGMENT
[1]The Appellants appeal against the Judgment of the Employment Tribunal (Regional Employment Judge Robertson, Mr D Wilks and Mr M Taj) (“the Tribunal”) awarding pay in the amount of £3907 to each of approximately 1250 of their employees in consequence of breach by their then employer of s. 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). We shall refer to the employees as “the Claimants” and to the Appellants as “the Respondents”, as they were titled before the Tribunal. Unless otherwise stated, references to paragraph numbers are to paragraphs of the Tribunal’s Reasons for its Judgment.[2]In broad summary, s. 145B of the 1992 Act prohibits an employer from undermining collective bargaining arrangements with trade unions which it recognises by making offers of new terms and conditions of employment directly to workers who are members of a recognised trade union instead of pursuing collective bargaining with their union. It was introduced in response to the judgment of the European Court of Human Rights in Wilson and Palmer v United Kingdom (2002) 35 EHRR 20 in which domestic law had been found insufficiently to protect the right to freedom of association conferred by Article 11 ECHR because it permitted employers to offer financial incentives to induce employees to surrender the right to have a trade union strive for the protection of their interests through collective bargaining.[3]Section 145B provides, so far as material: “Inducements relating to collective bargaining(1) A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if - (a) acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and (b) the employer’s sole or main purpose in making the offers is to achieve that result.(2) The prohibited result is that the workers' terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.” (a) acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and (b) the employer’s sole or main purpose in making the offers is to achieve that result.[4]Section 145D(4) provides for certain specific matters to be taken into account by a Tribunal when determining the purpose of an offer which would have the prohibited result within s. 145B(1):
“In determining whether an employer’s sole or main purpose in making offers was the purpose mentioned in section 145B(1), the matters taken into account must include any evidence - (a) that when the offers were made the employer had recently changed or sought to change, or did not wish to use, arrangements agreed with the union for collective bargaining, … (c) that the offers were made only to particular workers, and were made with the sole or main purpose of rewarding those particular workers for their high level of performance or of retaining them because of their special value to the employer.”
[5]These provisions were recently subject to authoritative interpretation by the majority of the Supreme Court in Kostal UK Ltd v Dunkley and others [2021] UKSC 47; [2022] ICR 434. There are three elements to liability under s. 145B –(a) offers made to workers who are members of a recognised trade union,(b) acceptance of which would have the prohibited result that a term or terms of employment will no longer be determined by collective bargaining, and(c) where the employer’s sole or main purpose is to achieve the prohibited result. Only the second of those elements, the prohibited result, was in issue in Kostal.[6]As to that element, Lord Leggatt, for the majority, stated:
“65. ... in order for offers made by the employer to workers to be capable of having the prohibited result, there must be at least a real possibility that, if the offers were not made and accepted, the workers’ relevant terms of employment would have been determined by a new collective agreement reached for the period in question. If there is no such possibility, then it cannot be said that making the individual offers has produced the result that the terms of employment have not been determined by collective agreement for that period. In other words, it is implicit in the definition of the prohibited result that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union when they otherwise might well have been determined in that way. 67. ... where there is a recognised union, there is nothing to prevent an employer from making an offer directly to its workers in relation to a matter which falls within the scope of a collective bargaining agreement provided that the employer has first followed, and exhausted, the agreed collective bargaining procedure. If that has been done, it cannot be said that, when the offers were made, there was a real possibility that the matter would have been determined by collective agreement if the offers had not been made and accepted. What the employer cannot do with impunity is what the Company did here: that is, make an offer directly to its workers, including those who are union members, before the collective bargaining process has been exhausted. 68. It was argued on behalf of the Company that it may be difficult to say with certainty whether the collective bargaining process has been exhausted in any particular case and that this interpretation therefore exposes employers to risks which they cannot afford to take and hence would unreasonably restrict their freedom of negotiation. I do not accept this. In my view, employers have two means of protection against that risk. The first is to ensure that the agreement for collective bargaining made with the union clearly defines and delimits the procedure to be followed. … A second level of protection is provided by the requirement of section 145B(1)(b) that the section will not be contravened unless the employer’s sole or main purpose in making the offers is to achieve the prohibited result. If the employer genuinely believes that the collective bargaining process has been exhausted, it cannot be said that the purpose of making direct offers was to procure the result that terms will not be determined by collective agreement when that otherwise might well have been the case. … 71. I conclude that, on the proper interpretation of section 145B of the 1992 Act, an offer would have the prohibited result if its acceptance, together with other workers’ acceptance of offers which the employer also makes to them, would have the result that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union when, had such offers not been made, there was a real possibility that the terms in question would have been determined by collective agreement. That must ordinarily be assumed to be the case where there is an agreed procedure for collective bargaining in place which has not been complied with.”
[7]The critical point in Kostal is that the prohibited result in s. 145B(2) imports a test of causation. It is not sufficient to demonstrate the prohibited result that offers made individually to workers would, if accepted, have the effect that terms were not determined by collective bargaining. There must, at the time that offers were made, have been a real possibility that those terms would have been determined by collective bargaining if the offers had not been made. Whether or not collective agreement was a real possibility entails consideration of whether the collective bargaining processes agreed between the employer and the recognised trade union had been exhausted at the time that offers were made.[8]Although there was no separate issue in Kostal as to whether the employer had the purpose of achieving the prohibited result, §68 gave important, even if not comprehensive, guidance to be applied in identifying that purpose. In particular, an employer cannot have the requisite purpose if it genuinely, even if mistakenly, believes that the collective bargaining process has been exhausted (because, in those circumstances, it cannot be said that its purpose in making direct offers was to procure the result that terms will not be determined by collective agreement when that otherwise might well have been the case).[9]The hearing before the Tribunal in the present case was delayed to await the conclusion of the Kostal proceedings, and the Tribunal sought to apply the interpretation of s. 145B given by the majority of the Supreme Court. The Tribunal held, in summary: i) The Claimants’ then employer, Virgin Trains East Coast Ltd (“VTEC”) had made a pay “offer” to them by letter dated 13 November 2017 which was capable of falling within s. 145B(1) (§103). ii) Acceptance of VTEC’s offer, together with other workers’ acceptance of the offer, would have had the s. 145B(2) prohibited result. There was a real possibility that if the offer had not been made and accepted, the relevant terms would have been determined by a new collective agreement (§147). Key to the Tribunal’s reasoning were detailed factual findings to the effect that collective bargaining had not been exhausted at the time of the offer (§146) but VTEC had decided, for various reasons, that it did not wish to pursue collective bargaining any further (§§144-145). iii) VTEC’s purpose in making the offer had been to achieve the s. 145B(2) prohibited result. VTEC’s management did not have a genuine belief that collective bargaining was already at an end but rather had decided not to continue with it and to make the offer instead in order to seek to impose its preferred pay award (§§170-171).[10]Before this Tribunal, the Respondents, to whom the Claimants’ employment had subsequently transferred, did not challenge the Tribunal’s finding on “offer” but argued that the Tribunal had erred in its findings on prohibited result and on VTEC’s purpose. In short, it was contended that(a) the Tribunal had erroneously failed to recognise that the agreed collective bargaining process had been exhausted according to its terms, hence on the analysis in Kostal there could have been no prohibited result (“the prohibited result issue”) and(b) the Tribunal should have identified VTEC’s purpose in making the offer as its reasons for its decision to make the offer – principally, to implement a pay award made with two other trade unions - which were innocuous and not prohibited by s. 145B (“the prohibited purpose issue”).[11]We have decided to dismiss the appeal. We set out our reasons for doing so below.

The relevant findings of the Tribunal

[12]The Tribunal heard detailed evidence about the conduct of pay negotiations between VTEC and three trade unions, TSSA, Unite and the RMT, beginning in March 2017. Negotiations were conducted under the terms of a collective bargaining agreement called the “Great North Eastern Railway Limited Procedure Agreement 1”, between VTEC on the one hand and four trade unions – the three aforementioned unions and ASLEF – on the other (§§17-18) (“the CBA”). Annex A to the CBA provided for business-wide negotiations through a Joint Committee comprised of representatives of VTEC and the four unions. The key paragraph of Annex A was §8:
“The Committee will endeavour to conclude negotiations by agreement and to hold negotiations in a timely manner. The procedure is exhausted once negotiations and discussions within the Committee have concluded. However, this would not preclude further discussions between an appropriate Manager or the Managing Director and a full-time paid trade union official to consider what other steps might assist resolution of questions upon which there has been failure to agree.”
[13]According to the Tribunal (§22), the CBA providedfor “single-table bargaining with four recognised trade unions”. Neither the CBA nor particularly Annex A incorporated a specified procedure or structure for collective bargaining and negotiations, providing only that meetings of the Joint Committee would be held as often as necessary and in any event within 28 days of a request. There was no provision as to whether agreement must be unanimous or by majority of the members of the Joint Committee or participating trade unions. There was no avoidance of disputes procedure in Annex A, although §6 of the main body of the CBA contained provision that “differences and disputes would be dealt with by way of the appropriate agreed procedures. No form of industrial action will be undertaken under procedures have been exhausted”. As to when the CBA procedure was “exhausted”, there was no mechanism within §8 of Annex A as to how, when and by whom it should be decided that negotiations and discussions within the Joint Committee had concluded.[14]The 2017 pay negotiations did not involve ASLEF, which had reached a separate, two-year agreement, with VTEC in 2015 (§25). There were five negotiating meetings attended by the other three unions, culminating in a long meeting on 17 October 2017. By the end of that meeting, VTEC’s negotiator, Ms Bullock, had made an offer which negotiators for RMT (Mr McGowan) and the TSSA had agreed to recommend to their unions for acceptance and the Unite representative had agreed to report to a more senior Unite negotiator (§§36-38). However, Mr McGowan encountered opposition from RMT members to VTEC’s offer and he instead recommended that it be rejected. His embarrassment in this regard led to a “trenchant and defensive reaction” when challenged by Ms Bullock about the change of mind and “the confrontational style of his later communications to her and his membership about the proposals” (§45). The “defensive reaction” included accusing Ms Bullock of lying when she reminded him that he had agreed to recommend the proposal and threatening legal action against her (§46). The RMT balloted its members with a recommendation to reject the offer. Mr McGowan contributed a personal message that they should “reject this insult of an offer” (§47).[15]Members of TSSA and Unite voted to accept VTEC’s pay offer but, on 13 November 2017, Ms Bullock was informed that RMT members had voted to reject it. On the same day, VTEC wrote to all of its workforce in terms which the Tribunal held, and the Respondents now accept, amounted to an “offer” within s. 145B(1) (§§54, 111):
“The result of Unite’s referendum is in and we’re pleased to say members have voted to accept the pay deal: a 3.2% basic pay increase (minimum £600pa), with productivity commitments in year 1 and an increase equivalent to RPI in year 2. This is great news and follows TSSA also accepting the offer for its members. The negotiations over the past eight months were challenging yet constructive, and we have a fair deal that we think gives you the award you deserve whilst balancing the needs of the business and our customers. The RMT has confirmed on its website members voted to reject the pay award, although the ballot is not verified independently. This is incredibly disappointing, and we’re surprised by this outcome as we made changes to the original pay offer based on feedback from you and representatives. We know that many of you would welcome backdated pay in time for Christmas. With all this feedback in mind we’re eager to give you what you deserve – and soon! Therefore all of you will see this award land in your bank accounts in December – often an expensive month for us all. … We hope you see this as good news. With challenging trading conditions, and economic growth predictions looking slower than expected, staff in many other industries would be envious of a 3.2% increase in year 1 pay. The public sector cap is well known, and average private pay increases are around 2.8%. However, if you’re an RMT member and do not wish to accept the two year pay award (as attached), please email {address omitted] by midday 24 November with the subject line “Pay Award Opt-out”
. Alternatively you can send a letter to opt out of the award. … Please think carefully before making a decision and bear in mind that if you opt out in the hope the deal will improve – it won’t. As a reminder, details of the award and productivity conditions are attached. It also gives example pay increases over the two years.”[16]The following day Mr McGowan asked Ms Bullock to identify dates for “further meetings in order that further discussions can be held in relation to the pay claim” (§53). Ms Bullock responded, agreeing to an urgent meeting and explaining that the 13 November 2017 offer was made because “we had exhausted collective bargaining on the issue and our people are understandably keen to receive their pay award which has now been agreed by other trade unions parties to the pay discussions, TSSA and Unite” (§61).[17]Further meetings did take place between VTEC and RMT representatives, on 22 November 2017 and 2 February 2018, and there were also several written communications between the parties (§§64, 67-70). There was a lengthy hiatus when the RMT refused to agree to withdraw support for the present s. 145B claims. VTEC’s demand that it do so was dropped in November 2018, at which point the RMT accepted the 2017 pay award, including full back pay for employees who had opted out in response to the 13 November 2017 offer (§70). There was one significant difference between the terms agreed by the RMT and those which had been accepted by TSSA and Unite. They had agreed to change the sick pay year to a “rolling” year. The RMT did not agree that, and VTEC ultimately implemented the 2017 pay award for all employees on the terms agreed by the RMT (§138).[18]On the prohibited result issue, the Tribunal directed itself, in terms which are not specifically challenged by the Respondents, as follows (§139):
“The Tribunal must decide if, when the offer was made, there remained a realistic chance that the relevant terms of employment would be collectively bargained. That involves consideration of all the relevant circumstances, including the collective bargaining arrangements between the parties, what the parties were saying and doing at the time and the subjective positions of the parties. However, an employer’s unilateral decision to end negotiations (or a union’s to seek to treat them as continuing) cannot itself be determinative; an employer cannot say that there was no chance terms would be collectively bargained because it was not prepared to negotiate any further, unless objectively it is clear the bargaining process was over (or, if it was not, that it lacked the required purpose because it genuinely believed negotiations were over).”
[19]The Tribunal first asked itself why management decided to send the 13 November 2017 offer. It found that there had been “a unilateral business decision by VTEC’s management to treat collective bargaining as at an end and implement the pay award. It was not, in the Tribunal’s view, a business decision that collective bargaining was already at an end or, put another way, exhausted; rather, it was a business decision to conclude collective bargaining unilaterally because it no longer wished to participate in it” (§144).[20]The Tribunal described the “reasons for this business decision” as follows:
“145.1 Ms Bullock was upset by what she saw as Mr McGowan’s and, therefore, the RMT’s change of heart. She felt he had gone back on his promise and had not recommended the offer. She said so, not only in evidence to the Tribunal but in contemporaneous correspondence. 145.2 Ms Bullock was also upset by the aggressive and hostile tone of communications Mr McGowan sent to her and to the RMT members he represented. 145.3 Ms Bullock wanted the workforce to receive back pay in time for Christmas. She said so at the meeting on 17 October 2017, in her letter of 27 October 2017 and in the communication of 13 November 2017 itself. That required that payment be made in the December pay run. The only way to achieve this in time was to impose the terms, unilaterally. 145.4 VTEC did not want to return to the negotiating table once the TSSA and Unite had accepted the deal. Ms Bullock felt that negotiations had gone on long enough, and the RMT had wrecked the negotiations by what she saw as its unreasonable conduct. The Tribunal does not accept that management concluded that further bargaining within the JNC could not take place once two unions had accepted the offer but the RMT had not. Rather, the Tribunal believes that management did not want to proceed in that way. 145.5 Ultimately, the Tribunal finds that the reason why management sent the communication on 13 November 2017 was that they believed negotiations had gone on long enough, they did not wish to re-enter negotiations in the situation (which Ms Bullock accepted in evidence) that two of the three unions had accepted the offer, and in their view, agreement had been sabotaged by the RMT’s and Mr McGowan’s actions. Therefore, they decided that they did not wish to continue with collective bargaining.”
[21]The Tribunal then made the important finding that “when the offer was made to the workforce, there remained a realistic chance that the relevant terms would have been collectively bargained” (§146). It gave these reasons for that finding:
“146.1 The CBA did not contain any structured bargaining process or specify how it should be decided that collective bargaining was exhausted, saying only that would occur once negotiations and discussions were concluded. That, the Tribunal finds, was a matter for the JNC. It was not open to VTEC to make that decision unilaterally for itself without any reference to the JNC. The negotiations and discussions had been within the JNC process, and it was for the JNC to decide they were concluded; 146.2 Objectively viewed, the parties were close to agreement. Mr McGowan thought so at the meeting on 17 October 2017, as he agreed to recommend the deal. … Objectively, whilst there were matters still to be resolved after the RMT rejected the deal, these were not, individually or collectively, fundamental matters that suggest a deal could not have been agreed through further negotiations; 146.3 Objectively viewed, the negotiations had not reached an impasse. There was an ongoing negotiation process. Ms Bullock knew that the unions were required to seek members’ approval to the proposals, with the possibility of rejection. It cannot be said that negotiations were deadlocked when there had been no further discussions in the context of the RMT’s decision; 146.4 Objectively viewed, there was no reason why the JNC could not have been re-convened. Single-table bargaining requires agreement by all parties. Therefore, agreement had not been reached. If the TSSA and Unite declined to participate, negotiations could have taken place with the RMT alone; this was contemplated by the second part of paragraph 8 [of Annex A to the CBA]. This would have been, as Mr Galbraith-Martin conceded, collective bargaining; and any agreement could then have been ratified within the JNC in order to be incorporated in employees’ terms of employment; 146.5 The Tribunal has carefully considered the language used by the RMT, particularly Mr McGowan, before the ballot. On the face of it, it does not suggest agreement was near. But it was the language of rhetoric. As an experienced negotiator, Ms Bullock will have been used to the language sometimes used in such situations. She correctly deduced why Mr McGowan was acting as he was. It can objectively be expected that if negotiations had resumed, these experienced negotiators would have focussed on what was outstanding between them; 146.6 As it transpired, further discussions did ensue between VTEC and the RMT, resulting ultimately in a collectively-bargained agreement. Whilst there were other matters to be resolved, management were keen to resolve the outstanding pay and conditions issues and did not refuse to participate because the other unions had already reached agreement. As mentioned at paragraph 72 above, the language used by the parties during the discussions was of resolving the issue of the 2017 pay award; 146.7 The Tribunal attributes no significance to the description of the offer as “full and final”
. The same words had already been used for the August 2017 offer. In any event, the employer cannot circumvent section 145B by unilaterally describing an offer as final or shut out further collective bargaining which would otherwise take place.”[22]The Tribunal then expressed its conclusion on the prohibited result issue as follows (§147):
“The Tribunal finds that objectively, there was a real possibility that if the offer had not been made and accepted, the relevant terms would have been determined by a new collective agreement reached for the period in question. Therefore, the prohibited result exists in this case.”
[23]On the prohibited purpose issue, the Tribunal noted that this had not been an issue in Kostal but that it was apparent from the Supreme Court’s ruling that a fundamental consideration is whether the employer genuinely believed that collective bargaining was exhausted, and that was why it made the offer direct to the workforce (§165). The Tribunal directed itself that it should consider whether VTEC had decided that it did not wish to use the agreed arrangements in the CBA (see s. 145D(4)(a)) (§169). It referred back to its conclusions in §§144-145 where it had found that VTEC did not wish to continue negotiations through the agreed process or at all. It continued (§171):
“This was not, the Tribunal finds, the result of a genuine belief on management’s part that collective bargaining was already at an end; it was a decision by VTEC’s management for those reasons that it did not wish to continue collective bargaining and, therefore, in order to implement the pay award, it would impose it unilaterally. That was its purpose in making the offers.”
[24]VTEC’s “subjective purpose” was then identified (at slightly greater length) as being “to achieve the result that the terms of employment of the relevant employees would not be collectively bargained for the period of the 2017 Pay Award, in that, as a result of its decision to pull out of collective bargaining, implementation of the 2017 Pay Award would be accomplished by imposition on the affected employees rather than by collective bargaining” (§172). That purpose was the purpose prohibited by s. 145B(1)(b) of the Act (§173).

The prohibited result issue

[25]On the footing that offers falling within s. 145B(1) had been made by VTEC to members of the RMT, it was not in dispute that acceptance of the offers would have the result that certain terms of employment of those employees would have been determined by individual agreement rather than by collective agreement negotiated by or on behalf of the RMT. The issue for the Tribunal was whether the causation test identified by the majority in Kostal – that had such offers not been made, there was a real possibility that the terms in question would have been determined by collective agreement – was satisfied.[26]Whether or not there was that “real possibility” in this case was a question of fact for the Tribunal. The short answer to this aspect of the appeal is that the Tribunal decided that question of fact in §146 (for the reasons given, there had been a “realistic chance” when the offer was made that the relevant terms would have been collectively bargained) and the Respondents did not argue that that finding was perverse. It was not perverse and nor was it at all surprising in circumstances where(a) (as the Tribunal also held on the facts) VTEC had taken a business decision to conclude collective bargaining because it no longer wished to participate in it, but(b) had re-engaged in negotiations with the RMT a short time after the offer was made and(c) collective agreement was ultimately reached on the 2017 pay award.[27]The Respondents’ argument was, rather, that the Tribunal had misunderstood the nature of the exercise demanded by the causation test in Kostal, which was to be determined with reference to the question whether the agreed collective bargaining procedure had been followed by VTEC and exhausted. That question was answered by the Tribunal in a single sub-paragraph (§146.1), and its answer had been based on a misreading of the CBA, which was an error of law. The true position, they submitted, was that negotiations within the Joint Committee had concluded by the time of the offer and further negotiations between VTEC and the RMT took place outside the confines of the Joint Committee and so of the CBA.[28]Collective agreements differ widely in the formality and rigidity of the bargaining processes for which they provide. In Kostal, the procedure provided for was relatively prescriptive; there was provision for negotiations over proposed changes to terms and conditions of employment and a four-stage dispute resolution process in the event of failure to agree. The first three stages involved meetings between trade unions and management. If no agreement was reached by the end of the third stage, the fourth stage comprised referral, by joint agreement, to ACAS. The collective agreement stipulated that if no agreement was made to refer to matter to ACAS then “the procedure is exhausted” (§5). Offers made by the employer both before an agreed referral to ACAS and after referral but before the ACAS process had concluded were held to have been made before the agreed procedure had been exhausted and consequently at a time when there was a real possibility that the terms in question would have been determined by collective agreement.[29]In Ineos Infrastructure Grangemouth v Jones [2022] IRLR 768, the procedures were more flexible. The collective agreement merely provided for collective bargaining through meetings between the employer and Unite, with no minimum or maximum number of meetings stipulated and no specific provision for dispute resolution in the event of failure to agree (§5). The EAT held that “where there is no structured agreement as in Kostal, the proper approach is to ascertain, objectively, whether or not negotiations were as a matter of fact at an end” (§64); and that where, because collective bargaining arrangements are unstructured, it may be difficult to say with certainty whether the collective bargaining process has been exhausted, the question of the employers’ purpose in making the offer assumes a heightened relevance (§66, referring to §68 of Kostal). We would add only that the less structured and more flexible is the agreed bargaining process in a particular case, the less that it may assist in answering the central causation question – was there a real possibility that the terms in question would be determined by collective bargaining? – to seek to answer a separate question as to whether the agreed bargaining process has been exhausted.[30]In the present case, the procedure for collective negotiation envisaged by the CBA was unstructured and flexible. As the Tribunal held, “the CBA did not contain any structured bargaining process or specify how it should be decided that collective bargaining was exhausted, saying only that would occur once negotiations and discussions were concluded” (§146.1, referring to Annex A, §8, which is set out in §12 above). Even after negotiations had concluded within the Joint Committee, the CBA expressly provided for discussions to continue between management and a full-time paid trade union official in order to seek to resolve points of difference (see the second sentence of Annex A, §8). That provision was particularly appropriate for use where there had been a failure to agree with one trade union, as it envisaged discussions proceeding, initially, between management and an official of a single trade union. If agreement is then reached, the CBA envisaged that the Joint Committee would be reconvened to ratify the agreement and refer it to the Company Council for implementation (Annex A, §6; see §146.4 of the Tribunal’s judgment). Under §12 of Annex B to the CBA, one of the functions of the Company Council was to implement agreements on pay and general terms and conditions remitted to it by the Joint Committee.[31]The flexibility which appears from the language of the CBA was borne out by its implementation in practice by the parties to it. For example, although the CBA provided in terms for “single table bargaining” between management and four recognised trade unions, all parties proceeded on the basis that the Joint Committee could be quorate and effective without all four trade unions participating in a particular negotiation. That explains why the Joint Committee was regarded as the forum in which the 2017 pay negotiations took place, notwithstanding that ASLEF was not party to those negotiations, having agreed its own pay deal previously. Moreover, as the Respondents accepted, ASLEF’s members were protected by s. 145B during the course of VTEC’s negotiations with ASLEF, notwithstanding that that was outside the confines of the Joint Committee process. In the circumstances, we agree with the submission made by Oliver Segal KC for the Claimants that under the provisions of the CBA, and as a matter of longstanding practice in their implementation, the Joint Committee was not the only forum in which collective bargaining could take place. There could be bargaining with a single union outside the Joint Committee, as with ASLEF, or with two or three out of four unions within the Joint Committee, or negotiations which commenced in the Joint Committee, continued outside the Committee when agreement was not reached, and then returned to the Committee for ratification of any agreement and its referral to the Company Council for implementation.[32]Unlike Kostal, the present case is one where it could not be ascertained on a straightforward application of the terms of the CBA whether or not the agreed procedures had been exhausted. There was no rigid structure created by the CBA on the basis of which it could have been decided, without further examination of the surrounding facts, that agreed collective bargaining had been exhausted. Therefore, we consider that the Tribunal was correct to engage, in §146, in the broader factual analysis of that question which is recommended by Ineos, as part of its consideration whether there had been, at the time of the offer, a real possibility of collective agreement.[33]The Tribunal held in §146.1 that only the Joint Committee, rather than any one or more parties to the Committee, could decide that negotiations and discussions within the Committee had concluded and so that the Committee procedure was exhausted. We agree; absent such a decision of the Committee, there would be no obstacle to any party requesting a meeting of the Committee to continue negotiations, pursuant to §9 of Annex A. However, the fact that (as in the present case) the Committee had not taken any such decision could not be determinative of the question whether or not the agreed procedure had been exhausted. Such a decision could only be taken unanimously. Although the CBA is silent on this issue, absent clear words, we could not interpret it as committing any trade union to be bound on any issue within the purview of the Joint Committee by the majority views of other trade unions or other unions along with VTEC. If a decision of the Committee were required before it could be considered for the purposes of s. 145B that the agreed bargaining procedure had been exhausted, that would give each trade union party to the agreement an effective veto on a potentially important factor determining the continuing protective effect of s. 145B, including in circumstances where all objective evidence suggested that negotiations were deadlocked and would not progress.[34]It is clear from §146 that the Tribunal correctly regarded the absence of any decision by the Joint Committee that negotiations and discussions on the 2017 pay award had concluded as only one factor among several which contributed to its decision that there had been a realistic chance of collective agreement at the time of VTEC’s offer. There are other factors set out in §146 which make manifest the Tribunal’s view that “objectively”, as a matter of fact, the agreed procedures had not been exhausted, notwithstanding that this question was not separately posed, but was considered as part of the overall question whether there remained a realistic chance of collective agreement (in accordance with the Tribunal’s methodology explained in §139). In particular, it held that, at the time of the offer made by VTEC direct to workers, the parties were close to agreement and negotiations had not reached an impasse but were ongoing (§§146.2-146.3), and that there was no reason why the Joint Committee could not have been convened as a forum for negotiation between VTEC and the RMT and/or to ratify any agreement reached between them after negotiations contemplated by the second sentence of §8 of Annex A (§146.4). The Tribunal’s approach in §146 was entirely consistent with that recommended in Ineos as appropriate to a situation where the prescribed bargaining process is flexible and not structured as in Kostal, namely, to ascertain, objectively, whether or not negotiations were as a matter of fact at an end. As for the employer’s purpose, which according to Ineos has a heightened relevance in these circumstances, §146 was immediately preceded by findings of fact damaging to VTEC that it had taken a unilateral business decision to conclude collective bargaining because it no longer wished to participate in it, and to seek to impose individual contract changes instead (§§144-145).[35]Mr Bowers KC for the Respondents submitted to us that it was clear that negotiations within the Joint Committee had ended, and the agreed procedure was exhausted, either when all three union’s representatives agreed, at the end of the meeting on 17 October 2017 to recommend VTEC’s proposals for acceptance by their unions, or when two out of the three unions, TSSA and Unite, subsequently accepted VTEC’s proposals. He acknowledged that this did not follow from any particular term of the CBA but argued that it was a conclusion which was dictated by “the shape of the agreement”. We can find no fault with the Tribunal’s rejection of an equivalent submission in §146.4. In single table bargaining, there could be no agreement such as to bring the Joint Committee’s involvement to an end until all three unions reached agreement with VTEC which had been ratified through their relevant internal processes. Therefore, as at the date of the offer, negotiations remained live with all unions. If Unite and TSSA did not wish to participate in further negotiations then these could have proceeded with the RMT alone, which was contemplated by the second sentence of §8 of Annex A to the CBA, and would have been collective bargaining expressly provided for by the CBA. The Joint Committee could then have been reconvened if agreement had been reached between VTEC and the RMT. (In the event, of course, negotiations did continue with the RMT alone, almost immediately after VTEC’s offer, and TSSA and Unite ultimately did re-visit their earlier acceptances of VTEC’s offer, as their members benefitted from the different deal negotiated by the RMT). All of that is consistent with Ms Bullock’s evidence to the Tribunal that she considered the RMT to have breached §6 of the CBA by balloting for strike action on 1 December 2017, almost three weeks after VTEC’s offer, at a time when agreed procedures had not been exhausted (§69 of her witness statement, set out in §141 of the Tribunal’s judgment).[36]In our judgment, the Tribunal was fully entitled to rely upon the matters set out in §146 to reach the factual conclusion that there had been, at the time of VTEC’s offer, a real possibility of collective agreement on the 2017 pay award. It did not err in failing to decide that the agreed bargaining procedures had been exhausted by the time of the offer. This ground of appeal is dismissed.

The prohibited purpose issue

[37]In this case, the purpose prohibited by s. 145B(1)(b) is the purpose of achieving the result that workers' terms of employment, insofar as affected by the 2017 pay award, would not be determined by collective agreement negotiated by or on behalf of their union. Before the Tribunal, the Respondents’ position was that the key question to be answered in determining whether, in making its offer, VTEC had the prohibited purpose was whether VTEC genuinely believed at that time that negotiations had been concluded (§152). They submitted that VTEC believed that an impasse existed and that §§70 and 104 of Ms Bullock’s witness statement accurately summarised VTEC’s purpose as being that of allowing RMT members to opt out of the pay award agreed with TSSA and Unite if they wished to do so (§156).[38]As we have noted (see §23 above), the Tribunal directed itself, in terms which have not been criticised by the Respondents, that it should consider, following Kostal, whether VTEC genuinely believed that collective bargaining was exhausted, and that was why it had made its offer direct to the workforce (§165) and also whether VTEC had decided that it did not wish to use the agreed arrangements in the CBA (applying the relevant factor stated in s. 145D(4)(a)) (§169). The Tribunal made an important finding of fact that VTEC decided to conclude collective bargaining because it no longer wished to participate in it, rather than because it believed that collective bargaining was already at an end or exhausted (§144, reiterated in §170). That finding is not challenged, and could not be challenged, on grounds of perversity.[39]The pleaded ground of challenge in the Respondents’ Amended Notice of Appeal, filed in order to reflect the basis on which permission to appeal had been granted, was that, in deciding upon prohibited purpose, the Tribunal had erroneously elided the objective question of whether there remained, at the time of VTEC’s offer, a real possibility of collective agreement, with the critical question of what Ms Bullock (subjectively) believed at the time of the offer, upon which it is said that the Tribunal failed to make findings.[40]We do not accept that criticism. The Tribunal conducted a careful analysis of the evidence of Ms Bullock on this issue, in §§141-144, finding that evidence to be “troubling” and to be viewed “with some scepticism”, for a number of reasons (§§142-143). However, the decision to make the offer was not taken by Ms Bullock but by VTEC’s Executive Directors, upon her recommendations as the “subject expert”, and the offer letter was not signed by her but by two of the directors (§55). The relevant question for the Tribunal, which it answered in §§144 was what was VTEC’s subjective belief at the time that VTEC made its offer. The Tribunal made it clear in §144 that it did not accept the Respondents’ submission that VTEC’s management had genuinely believed collective bargaining to be at an end. Rather, VTEC had taken a business decision that it no longer wished to participate in collective bargaining. It was not that management believed that further bargaining could not take place within the Joint Committee once TSSA and Unite had agreed to accept VTEC’s pay proposals but that “management did not want to proceed in that way” (§145.4). In our view, the Tribunal’s focus on the beliefs of VTEC’s management rather than on Ms Bullock’s personal beliefs was correct.[41]There is no hint of confusion in the relevant paragraphs of the judgment between the different approaches required to prohibited result on the one hand and prohibited purpose on the other. §§144-145 make findings as to what VTEC’s management in fact believed at the relevant time regarding the collective bargaining process. §146, which answers the prohibited result question, contains a number of references to matters “objectively” viewed, the correct approach which had been urged on the Tribunal by all parties. There is no similar language in §§144-145 and when the Tribunal came to answer the prohibited purpose question, in §§170-171, it correctly directed itself to consider the subjective belief of VTEC (§§165 and 172) and it references §§144-145 and not §146.[42]A particular criticism made of the Tribunal under this head was that it had failed to give due consideration to the behaviour of Mr McGowan, and VTEC’s reaction to it, when identifying the subjective belief of VTEC’s management at the time that the offer was made, but considered it only as part of its objective analysis of prohibited result, in §146. In fact, the Tribunal considered the effect of Mr McGowan’s behaviour in §145.2 and in §145.5, where it was identified as one of the reasons why VTEC decided that it did not wish to continue with collective bargaining. The Tribunal simply did not agree with the Respondents that Mr McGowan’s behaviour gave rise to a belief on VTEC’s part that collective bargaining had been exhausted. In its view, Ms Bullock, an experienced negotiator, had correctly deduced that Mr McGowan was engaging in rhetoric and why that was so. That finding is in §146.5, and for good reason, as it was relevant to what might objectively have been expected in future negotiations, but it is a finding as to what was in Ms Bullock’s mind, which will have contributed to her recommendations to VTEC’s executive directors, and so was also relevant to VTEC’s subjective belief. There was no error on the Tribunal’s part.[43]At the hearing before us, there was little or no mention of the pleaded ground of appeal on prohibited purpose and, instead, Mr Galbraith-Marten KC focused on a quite different point. This was that the reasons for VTEC’s decision not to continue with collective bargaining, identified by the Tribunal in §145, should have been regarded as VTEC’s “purpose” within s. 145B(1)(b). Those reasons, which are set out in §20 above, were legitimate business reasons which did not correspond to the prohibited purpose. Reliance was placed on discrimination cases such as Ahmed v Amnesty International [2009] ICR 1450 as drawing a distinction between the reasons for doing an act and the grounds on which the act was done, only the latter of which was material.[44]We reject that further criticism, for three reasons which can be shortly stated. First, it was raised in a procedurally improper manner. The Respondents did not put this argument to the Tribunal and the Employment Appeal Tribunal would have to have given careful consideration to whether they should be permitted to run the point on appeal. In fact, the Respondents did not apply for or obtain permission to appeal on the basis of this ground of appeal and their Amended Notice of Appeal does not contain it. There was no application to re-amend the Notice of Appeal or indeed any acknowledgment by the Respondents that they were raising an entirely new point. The Claimants had no notice of this ground until they received the Respondent’s Skeleton Argument and their Skeleton Argument, filed more or less simultaneously, understandably did not address it. In our judgment, it was not open to the Respondents simply to proceed on the basis that they were entitled to raise an entirely new ground of appeal at the oral hearing stage.[45]Second, as Mr Segal KC submitted, an employer will always have a business reason or reasons for seeking to bypass collective bargaining by making individual offers to employees. If, as a matter of general principle, a Tribunal were required to focus on those reasons as determinative of whether an employer had the prohibited purpose of achieving the result that terms of employment will not be determined by collective agreement, an employer could never be held to have contravened s. 145B (unless, perhaps, the employer had been unwise enough to have characterised its business reason as that of limiting or ending collective bargaining). That would be “anti-purposive” (to repeat the phrase used, in a different context, in §64 of Ineos). We do not find the discrimination case-law, arising out of different statutes with different wording and different statutory purposes, to be a helpful analogy. We note, however, that even in that context an employer having benign reasons for its actions is no defence where it has contravened a policy-based prohibition of acting on grounds of a protected characteristic.[46]Third, the Tribunal correctly directed itself that the only factor prescribed by s. 145D(4) as relevant to VTEC’s purpose for acting in this case was that in s. 145D(4)(a), any evidence that VTEC had decided that it did not wish to use the agreed collective bargaining arrangements. The Tribunal was not criticised for identifying this factor as “the key consideration in this case” when it came to prohibited purpose (§169) and it proceeded to apply its earlier finding that VTEC had indeed decided that it did not wish to use the agreed arrangements.[47]Manifestly, where there is such evidence, this aspect of s. 145D(4)(a) tends to show that the employer had the prohibited purpose (as was also pointed out in §112 of the minority judgment in Kostal). In our judgment, it would be contrary to the intended effect of s. 145D(4)(a) if an employer deciding that it did not wish to use the agreed collective bargaining arrangements was only the starting point for a tribunal’s analysis, and tribunals were required to base their application of s. 145(1)(b) instead on the reasons for that decision of the employer. As we have noted, there will usually be business reasons for such a decision which can be characterised as different from the prohibited purpose.[48]Therefore, we dismiss the appeal on the prohibited purpose issue.

Conclusions

[49]For the reasons given above, we dismiss the appeal.