Ms S Campbell and Others v Livv Housing Group and Livv Maintenance Ltd: 2401562/2025 and Others
EMPLOYMENT TRIBUNALS
Case No 2401562/2025
Between
Ms S Campbell and OthersClaimantLivv Housing Group and Livv Maintenance LtdRespondent
Before
Employment Judge BarkerMr Crozier (instructed by counsel) for respondentDate 20 March 2026
REASONS
Preliminary issues and matters for the Tribunal to decide[1]This hearing was to determine the respondents’ application for orders, namely orders striking out the claims or for deposits to be payable by the claimants. The hearing was listed by EJ Aspinall at a case management hearing on 9 September 2025.[2]Following a discussion with the parties at the case management hearing, it had been decided that this hearing would be before a panel comprised of three Tribunal members. At the outset of the hearing, only the judge and a member from the employers’ panel were in attendance. I explained that because of an administrative error, the employee panel member had been released from sitting and it had not been possible to obtain a replacement panel member at short notice. The parties were given the option of this hearing being adjourned and relisted with a full panel, this hearing proceeding with a panel of two, or this hearing proceeding with a judge sitting alone. The parties could not agree to the Tribunal sitting as a two-person panel and so the hearing proceeded with a judge sitting alone, which was the parties’ preference over adjourning the hearing and re-listing it.[3]The Tribunal had the benefit of a skeleton argument from the respondents in support of the applications, and a single set of submissions on behalf of all of the claimants, as well as a bundle of documents and a bundle of authorities. The parties were provided with a decision and reasons at the conclusion of the hearing.[4]The respondents’ application was:a. That the claimants’ claims under s145A/145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) cannot succeed because the respondents’ “Blogpost” dated 3 December 2024 was not, and cannot have been, an “offer” made to the claimants within the meaning of those provisions.b. The claimants’ claims under s146 TULRCA have no prospect of success because the claimants cannot establish that they were subject to a relevant “detriment”. The claimants (as Union members) were subject to the same offer but put on a collective basis as was made to non-union members individually, based on the claimants’ own election to be a union member and their right protected by Article 11 ECHR and s145B TULRCA that as union members they could not have an offer made directly to them. There was no substantive difference in treatment – the only difference is the form in which the offer was received; andc. For similar reasons, the claimants’ detriment claims under the Employment Relations Act 1999 (Blacklists) Regulations 2010 (“the Blacklist Regulations”) cannot succeed.[5]The respondents addressed both (b) and (c) together, focussing on the “detriment” requirement for both elements. I have done the same in this judgment.[6]The law on applications for strike out and deposit orders is clear. The claimants’ arguments on circumstances where such orders are not appropriate were, inter alia that:a. Strike out is not appropriate at this stage in the proceedings as the claims are for adverse or less favourable treatment because of trade union membership. As these are essentially claims of discrimination, the Tribunal is asked to approach the applications in the manner expressed in Anyanwu v South Bank Student Union [2001] ICR 391 HL because they are, in essence, often highly fact-sensitive and should only be decided after hearing the evidence;b. There are clear factual disputes over whether or not the claimants were subject to a detriment, who the offer was made to and whether it was capable of acceptance and whether the respondents used a prohibited list. Where there are such factual disputes, it is only in exceptional cases that a claim should be struck out or subject to a deposit order (North Glamorgan NHS Trust v Ezsias [2007] IRLR 603);c. The claimants’ case should be taken at its highest when deciding such applications at a preliminary stage in the proceedings;d. The interplay between Article 11 ECHR and the heads of claim in these cases are a developing area of law and have not before been considered by either the Employment Tribunal or higher courts and is therefore not normally appropriate to strike out (Farah v British Airways The Times, 26 January 2000 (CA)).[7]The respondents’ submissions on general principles of strike out and deposit orders were, inter alia, that:a. The claimants’ case should be taken at its highestb. The Tribunal’s strike out powers are discretionary, but ordinarily if a case has no reasonable prospect of success, it should be struck out. There is no benefit to a case with no prospect of success proceeding to a final hearing (Cox v Adecco [2021] ICR 1307 EAT).c. Whether or not arguments in these proceedings are novel would not prevent the Tribunal making a deposit order, even it the Tribunal were not minded to make an order for strike-out.[8]The background to the claims necessary to understand this decision, is as follows. The respondents’ workforce is unionised, in that there is recognition of the unions GMB, Unison and Unite for collective bargaining purposes. There is a collective agreement. There is one bargaining unit for both respondents, being all workers of both respondents save for their directors. These claims are brought on behalf of the members of Unite and Unison only, not members of the GMB union.[9]The collective agreement provides for Joint Consultative Committee meetings for pay negotiations. Crucially in relation to this dispute the terms of the collective agreement do not specify a defined point at which collective bargaining is said to be exhausted and after which a pay offer can be imposed unilaterally on the members without infringing s145B TULRCA.[10]Pay negotiations for 2024 had not reached agreement by December 2024. The unions had asked for (broadly) 10% and the respondents had consistently rejected this and made a counter-offer of (broadly) 5%. These positions had not changed from when the 5% offer was rejected by members following a ballot in May 2024. The unions balloted members on strike action, which was approved by the members. Strike action had taken place from September 2024 and was ongoing in December 2024.[11]In correspondence seen by the Tribunal, Tony Caffery of Unison wrote to the respondents on 27 November 2024 on behalf of Unison and Unite, expressing their frustration at the lack of active engagement by the respondents in the pay bargaining process. The email expresses surprise at the respondents’ request that the unions agree that collective bargaining has been exhausted and expresses the view that both unions consider that it has not been exhausted. The Blogpost Offer[12]On 3 December 2024, in a “Blogpost” to all staff (including all members of the bargaining unit), Leann Hearne, the CEO of the first respondent, made an offer of a 5% pay rise, payable before Christmas, ostensibly to non-union members only.[13]The Blogpost is lengthy and describes the respondents’ financial circumstances before setting out the terms of the offer. There are two sections important to the Tribunal’s decision. These are repeated below, for context. The first section states: “Listening to you I’ve had lots of colleagues reach out to me to share their frustrations around not yet receiving their 5% pay award – some of the other 370 colleagues who aren’t taking part in the industrial action feel unheard. Some people have shared with me that they’re going to struggle with the cost of Christmas and were relying on the pay award to help, as well as sharing other stories which have made me want to move the situation forward, I need to find a way to respect the wishes and rights of those colleagues who aren’t taking part in industrial action and want to accept the pay award, alongside those colleagues who rejected the pay award and are taking part in industrial action. ………. We contacted the unions last week to ask them to confirm that we have exhausted our negotiations under our collective bargaining agreement, as the law prevents us from implementing the pay award for union members unless negotiations have been exhausted. The unions have confirmed to us that they do not agree that bargaining has been exhausted. This means that we cannot implement the pay award for union members. I’ve listened to colleagues asking me to take action and I’m not prepared to wait any longer to implement the 5% pay award to non-union members.” [emphasis added][14]The view of this Tribunal is that this would appear to be a misrepresentation of the collective bargaining process, in the sections in bold above. The respondents are prevented from implementing a pay award directly to all members of the bargaining unit unless negotiations have been exhausted, not just for union members, noting that the parties agree that the bargaining unit is comprised of all respondents’ workers except for directors. Splitting the bargaining unit in this way, in my view, is a novel approach to take.[15]The second relevant section states: “Accepting the pay award If you are a non-union member and would like to accept the pay award offer of 5%, please can you send confirmation of your acceptance and confirming that you are a non-union member to [email address provided] by 3pm on Friday 6 December. A one-line email to confirm you wish to receive the pay award and that you are not a union member will be enough. We will then look to implement the 5% increase for your December pay. …………. I anticipate that our colleagues who are union members and who wish to continue their dispute about the pay award will continue with their industrial action and that’s within their rights to do so. I also appreciate that not all union members wish to continue the dispute and that some may want to receive the pay award. We are not able to make any exceptions and pay the pay award to union members because the unions have confirmed in their view that negotiations have not been exhausted.”[16]Taking the second paragraph of this section first, this would again appear to misunderstand or misrepresent how collective bargaining works. If the unions have obtained recognition in this workforce and entered into a collective bargaining agreement, the negotiations apply to all members of the bargaining unit, even those who are not union members, and if the negotiations are not exhausted, direct offers cannot be made to any members of the bargaining unit.[17]Addressing the first paragraph of this section, the respondents’ submission is that the claimants have little reasonable prospect, or no reasonable prospect, of being able to establish at the final hearing that this constituted an “offer” made to the claimants, as the Blogpost expressly states that the offer is to non-union members only and cannot be accepted by union members while the unions continue to assert that collective bargaining is not exhausted.[18]The claimants’ submission is that the terms of the offer are such that it can be accepted by any worker who confirms that they are not, or are no longer, a member of a trade union. It therefore falls to be analysed as a conditional offer to union members upon renouncing union membership and confirming this to the respondents. The respondents disagree and characterise this as the making of a counter-offer by the union member, which the respondents then may or may not agree to accept.[19]I was directed by the respondents to the definition of an “offer” from Chitty on Contracts as being an appropriate definition to rely on, it having received the approval of the Supreme Court in Crest Nicholson v Akaria Investments [2010] EWCA Civ 1331 at paragraphs 24 and 25. An offer is said to be: [From Chitty on Contracts and set out in paragraph 24 of Crest Nicholson] “an expression of willingness to contract on specified terms made with the intention (actual or apparent) that it is to become binding as soon as it is accepted by the person to whom it is addressed.” and “…..- was there a proposal made by one party(a) (A) which was capable of being accepted by the other(b) (B) - the correct approach is to ask whether a person in the position of B (having the knowledge of the relevant circumstances which B had), acting reasonably, would understand that A was making a proposal to which he had intended to be bound in the event of an unequivocal acceptance.” [paragraph 25 of Crest Nicholson, per Sir John Chadwick][20]The question for the Tribunal on the respondents’ application is, do the claimants have little or no reasonable prospect of establishing that the Blogpost of 3 December constituted an “offer” to them contrary to s145A and/or s145B TULRCA?[21]I find that they have more than little reasonable prospect of establishing this and have declined to make orders for strike out or deposit on this basis.[22]My reasoning is that there is more than little reasonable prospect of the claimants establishing that the offer was an unconditional offer to the non-union members and a conditional offer to the union members.[23]As per Crest Nicholson, paragraph 25, was there a proposal made by one party which was capable of being accepted by the other? Would a person in the claimants’ position, having the knowledge of the relevant circumstances which they had, acting reasonably, understand that Ms Hearne’s offer was something she intended to be bound by in the event of them unequivocally accepting it?[24]I find that there are more than little reasonable prospects of the claimants showing there was such an offer. It appears that all the claimants had to do to accept it was to email the designated email address by the deadline and notify the respondent that they were not a union member. For the claimants, this would have meant resigning their membership before they sent the email, but there are more than little reasonable prospects of the claimants showing that, acting reasonably, they understood that was the only precondition. There was no indication in the Blogpost that former union members would not be accepted once they had resigned from their membership or that the respondent retained some discretion over who the pay rise was then given to.[25]The respondents raised the issue of when a veto was in place for a direct offer to be made to non-union members. I find that there is merit in the claimants’ argument that there is such a veto for a direct offer to union and non-union members in place until after collective bargaining was exhausted (as per Kostal UK Ltd v Dunkley and ors 2022 ICR 434, SC, paragraph 67). The question of whether collective bargaining could reasonably be said to have been exhausted is one for findings of fact at the final hearing and was not an issue that formed part of the respondents’ application for orders today. Detriment[26]The respondents’ argument on the issue of detriment is that the claimants have no, or in the alternative, little reasonable prospects of showing that they were subjected to a detriment by the Blogpost. The respondents say that the Blogpost made the same offer, 5%, to all workers, but in a different format. The formats were that nonunion members could accept it directly by emailing by the deadline. Union members had the exact same 5% offer, but this had to be accepted via collective bargaining. Both offers would be backdated to April 2024 for all workers. Therefore, the respondents say that the claimants have no or little reasonable prospects of showing that this was a detriment to them, as only the method of acceptance was different.[27]I prefer the argument of the claimants, which is that this overlooks the key issue of timing. The union members’ receipt of the pay offer was inevitably subject to a delay – they were not capable of accepting the offer by email (without losing their right to be a member of the union), by the deadline. The deadline was short (3 days) and if not accepted by that time, the pay rise and backpay would not be in their December salary payment. The claimants have, I find, more than little reasonable prospects of showing that withholding pay, or a pay rise, or a lump sum back payment, is capable of being a detriment. As mentioned in the Blogpost, non-union members would be subject to a detriment if they did not receive the pay rise before Christmas and I find that there is more than little reasonable prospects of the claimants establishing that this detriment applied to them also if they did not receive the pay rise before Christmas.[28]Furthermore, the claimants say that the withholding of the pay increase and backpay was a detriment because it deterred or penalised the claimants from being a member of a trade union or taking part in the activities of an independent trade union (contrary to s146(1) TULRCA). The claimants’ argument is that this is done to encourage people to renounce their union membership and has reasonable prospects of being found to be a violation of Article 11 ECHR, or at least amounting to a “disincentive” to Article 11 rights (as per Wilson and Palmer v UK [2002] IRLR 568 ECtHR, paragraph 48). Given the timing of the pay offer in the Blogpost immediately before Christmas and the fact that it constituted a lump sum payment of back pay to April 2024, the claimants say that this was not a de minimis amount. As the payment was conditional on resigning from the union for union members, it was capable of being a deterrent for being a union member. I do not accept that the claimants have no or little reasonable prospects of establishing this to be the case at the final hearing.[29]Finally, the claimants assert that they were subject to a detriment because of their failure to accept the offer made in contravention of s145A or 145B, contrary to s146(2C)-(2D). The claimants’ submission is that, taking their case at its highest, they will establish that they were subjected to detriment because of their failure to accept an offer which was made in contravention of s145A and/or s145B TULRCA. The claimants assert that s146(2C) says that a worker who was offered an unlawful inducement can in principle bring a claim arising out of the offer itself, turn the offer down and then bring a claim of detriment when not awarded the benefit contained in that offer. This type of detriment does not, in the submission of the claimants, require the claimants to establish less favourable treatment and so in any event is outside the respondents’ application to strike out the claim. That argument, I find, also has merit although as the strike out application has not succeeded, does not fall for determination on this occasion.[30]The parties have both made arguments as to the novelty or otherwise of their submissions and those of the other side. I accept that the arguments raised by the parties are novel, in that the claimants’ alternative case on the interpretation of the Blogpost “offer” is that even if the Tribunal at the final hearing find that it was not an “offer” to the claimants, where the availability of a pay increase is contingent on membership or non-membership of a trade union, this is capable of establishing less favourable treatment on the grounds of trade union membership. Therefore, s3 Human Rights Act 1998 reads s145A(1) as conferring a right not to be excluded from an offer if the purpose of the exclusion was because the worker remained a member of a trade union.[31]The claimants suggest that the respondents’ arguments in response to the claims are also novel, in that it is suggested (as I understand it at this hearing) by the respondents that it may be contrary to the non-union members’ Article 11 rights to abide by the veto in place during collective bargaining, and that giving effect to the non-members’ HRA rights would be done by allowing individual negotiations with nonunion members of a bargaining unit during collective bargaining. I agree with the comments of the claimants’ counsel that these arguments are potentially novel and an assessment of the interplay between Article 11 ECHR rights and existing domestic legislation is a matter for the final hearing. Approved by: