Mr R Higgins and Others v Egger (UK) Ltd: 4106717/2024 and Others

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4106717/2024, 4106703/2024

Venue Glasgow

Hearing 15 – 18 July 2025 Deliberation – 22 and 25 July 2025

Between

Mr R Higgins and OthersClaimant

Egger (UK) LimitedRespondent

Before

Employment Judge D Hoey

Mr J Wynne (instructed by Counsel) for respondent

[Instructed by for respondent

Messrs Fladgate] for respondent

UNANIMOUS JUDGMENT OF THE EMPLOYMENT TRIBUNAL for respondent

Date 30 July 2025

REASONS

[1]The claimants raised a claim for breach of section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992. The respondent disputed the claim.

[2]The claim raised by Mr McGuckin, Mr Best and Mr Reid was dismissed, these individuals not continuing with their claim (and not being members of the union at the relevant time).

[3]At a case management preliminary hearing, matters had been focussed and it was agreed a full hearing would be convened.

[4]The hearing began by a reminder of the overriding objective and the need for both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality. Case management

[5]The parties had worked together to focus the issues in this case. The parties were able to agree timing for witnesses and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality. The case was able to conclude within the allocated time with the parties using one of the days to focus the issues and facts agreed and those in dispute.

Evidence

[6]The parties produced a joint bundle of 642 pages. The Tribunal heard from the claimant (the local union representative for the Barony site), Mr McFarlane (the full time trade union official), Ms Ball, (Head of HR), Mr McArthur (plant director) and Mr Steinlechner (joint managing director). The witnesses gave oral evidence and were cross examined and asked relevant questions.

Facts

[7]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal). Where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case with regard to what was written and said at the time (when viewed in context).

Background

[8]The respondent had a Barony plant, Auchinleck (“Barony”) and a plant in Hexham. Hexham was the larger of the 2 plants.

[9]The respondent recognised Unite (“the union”) for collective bargaining over “all hourly paid maintenance and production employees up to but excluding supervisory level” at Barony and Hexham. Separate collective agreements existed in relation to these sites which were broadly similar. The Agreement stated that it was intended the Agreement provide the process for orderly determination of pay issues. Both parties would negotiate in good faith and employ best endeavours to secure agreement. If agreement was not reached a process was set out, including meeting to resolve matters, raising with the production technical director, then board of directors and if a satisfactory solution is not found the issue should be referred to ACAS.

[10]Not all employees in each of these bargaining units was a member of the union and not all employees were within these two bargaining units. The respondent was not told which of its employees were members of the union, and which are not. Pay negotiations

[11]At all material times, the amount of the annual pay increase has been negotiated between the respondent and the union on the understanding that it will apply to all employees, not just the members of the union and negotiations between the respondent and the union have progressed on the shared understanding that any pay increase would take effect from 1 May each year.

[12]Until 2024 the union presented a united position with regard to offers made to Barony and Hexham. The pay claim is ordinarily prepared by the Hexham representatives, the understanding being the same position would apply to both Hexham and Barony, despite there being separate ballots.

[13]In 2024 the members of the union at Hexham voted to accept the pay offer, but the members at Barony voted against. No thought had been given as to what would happen in the event of a different outcome in both sites. Harmonisation

[14]Barony and Hexham had begun as separate businesses which were eventually brought together. In 2015 the union requested there be harmonised terms and conditions as between the Barony and Hexham sites. Both sites did the same work but there were different pay grades.

[15]By letter dated 22 March 2016 staff were advised that with effect from 1 May 2016 Barony and Hexham would operate under one legal entity. Terms and conditions were unaffected by the merger.

[16]By letter dated 19 October 2017 staff were told that the third and final part of the Barony plant wage harmonisation project that commenced in 2015 would conclude in October 2017. The letter stated that: “Going forward pay rates would be reviewed annually for both Barony and Hexham plans for 1 May and any increase applied shortly after this time”.

[17]Following a lengthy process it was agreed that those in grade A at Hexham would be matched with those at a particular grade at Barony. Those at grade B at Hexham would be matched with those at another grade at Barony and those on grade C at Hexham would be matched with those on another grade at Barony. It was understood that wage rates would continue to be the same at both plants, subject to separate collective bargaining machinery. The 2024 pay negotiations

[18]On 17 February 2024 the union presented a pay claim to the respondent, seeking amongst other matters a 9.9% pay increase. The pay claim had included information about the company’s profitability and some surrounding general information, including cost of living. The respondent knew that the pay claim was prepared by the Hexham representatives (and was intended to cover both Hexham and Barony).

[19]There are separate collective agreements in place that govern the collective negotiation process in Hexham and Barony. Neither the respondent nor the union paid much attention to that document nor the processes therein with regard to the 2024 pay negotiations.

[20]The first meeting took place on 7 March 2024 at which representatives from the respondent and Barony and Hexham were present. The respondent offered (amongst other matters) 4.2%. Discussion had taken place about annual leave issues. The end point of negotiations at that meeting was that the respondent offered 5% from 1 May 2024 which the respondent said was reasonable, responsible and fair given the higher increase in 2023 and given the current market conditions and economic outlook. Other benefits, including health insurance, were offered.

[21]On 7 March 2024 the respondent emailed the union with its offer including amongst several other items including commitments to review policies a “5% pay increase 1 May 2024”, requesting that all the items form the basis of the ballot. The email stated: ”We look forward to achieving a successful outcome for all parties as soon as we can, our goal as always is to achieve 1 May implementation”.

[22]On 8 March 2024 Ms Ball, Head of HR, who was leading the negotiations from the respondent’s side, contacted the union representatives from Barony and Hexham and provided more information. She offered to help with communication to help explain the position and asked the ballot paper be shared with her.

[23]A further meeting took place on 18 March 2024 and a final meeting took place on 22 March 2024 with the respondent setting out its position in respect of the details being offered. Ms Ball discovered that the Barony representatives had already balloted their members (which occurred around 19 March 2024) which she found surprising as the details around each of the issues on offer had not been finalised. The key issue for the Barony union representative was the pay increase (and the other matters were not key for him).

[24]On 22 March 2024 Ms Ball sent an email to the union representatives thanking them for the discussions which she said had been “very progressive” and said she hoped the ballot went well. She asked again for the ballot paper. She also included a note of the offer and suggested the Hexham and Barony ballots were aligned to avoid different messages. She had been told the Barony ballot had already been issued.

[25]Ms Ball believed the Hexham representatives were adopting a collaborative approach and had been working with the respondent to seek agreement. In contrast, she considered the position adopted by the Barony union representative to be challenging. She found their approach to be difficult and lacking in collaboration. She did not believe that the Barony representatives were entering the process genuinely with a view to seeking agreement and she considered their approach to be unreasonable and found no genuine desire to work with the respondent and achieve a reasonable outcome. Instead she believed the Barony representatives simply wished to secure a higher pay offer but were not prepared to provide any basis for that. She considered that the approach taken by the Barony representatives could have a negative impact upon those voting given the offer, in the respondent’s view, was both fair and reasonable and was about more than simply a pay rise.

[26]The Barony union representative chose to ballot on the 5% only, making no reference to any of the other topics which the respondent had offered. The representative was of the view it was only the pay rise which was, in his view, material to the union members. The Hexham union representative had included all the items offered by the respondent, including the 5% pay rise and undertakings offered with regard to holidays and benefits.

[27]On 27 March 2024 Ms Ball asked the Barony representative again for a copy of the ballot paper. In the absence of a response, she sent a further email on 2 April 2024 asking for a copy of the ballot paper. Ms Ball was concerned there was a lack of collaboration by the Barony representative.

[28]On 9 April 2024 the Barony representative advised the respondent that the ballot ended that day and with a 75% turnout, 92% of those voting rejected the offer. It was noted that the respondent would want to await the Hexham ballot outcome which was due around a week later.

[29]On 10 April 2024 Ms Ball said in an email she was disappointed and sought a short summary of the type of feedback coming from members. She said it was difficult to understand the reasoning given the very fair offer, surrounding circumstances and benefits position which was favourable and competitive. She also noted the company had responded favourably following feedback with regard to health benefits and made significant inward investment. She wanted to know if there was more that could be done in terms of communication.

[30]The Unite official replied on 12 April 2024 advising Ms Ball feedback should be via local representative who would be in contact with the local members.

[31]That day Ms Ball emailed her senior managers noting the negative result from Barony. She stated that she believed the communication was not handled well by the union and the ballot paper was incomplete. The ballot referred only to the pay offer and had not included the other benefits which formed part of the pay offer (which had been included in the Hexham ballot). She had wanted to ensure staff knew the full picture and once they fully understood the context might well vote differently. She wished matters resolved collectively and wanted to achieve a collectively negotiated resolution.

[32]On 17 April 2024 the Hexham union official advised the respondent that following a ballot of Hexham employees, 52% had voted to accept the offer.

[33]Following that communication, Ms Ball emailed senior management members with options in light of the fact the plants had voted differently. The first option was to process the 5% pay increase for all except those who worked in production/technical and were hourly paid in Barony (recognising that would potentially lead to strike ballot and negatively affect those not in the union and delay their pay which could take a long time). The second option was to implement a 5% increase across the board (which could damage union relations but would ensure everyone would be treated fairly and would be done in good faith while continuing to listen and seek feedback). The final option was to engage with the union at Barony formally and seek feedback. Ms Ball recommended the latter 2 options.

[34]The senior managers agreed to proceed to contact the union at Barony to seek further information and engage with them while at the same time implement the 5% across the board so no employee was treated unfairly.

[35]On 18 April 2024 a letter, with heading “Rejected 5% pay offer”, was sent by the respondent to the local Barony shop steward in the following terms: “We are writing to express our concern regarding the recent collective bargaining negotiations and subsequent pay ballot process. We are fully committed to reviewing an implementing fair improvements to pay benefits and working conditions which we take seriously and are deeply disheartened with the current scenario at Barony and the associated impact on our workforce.”

[36]Under “Background” the letter said: “We provided extensive information during the pay talks this year in terms of the company position, up to date commercial market trends and economic data and relevant pay offer benchmarks. In recent months we acted in direct response to employee feedback in terms of benefits which costs were fully met by the company. In addition there is significant expansion investment in Barony ensuring ongoing stability for our employees. Pay talks took place on 7, 18 and 22 March with Hexham and Barony Unite representatives and management. The pay offer was finalised and agreed points sent to lead representatives on 22 March in writing. Although the pay offer percentage was known before 22 March, further meetings were required to resolve outstanding topics.“

[37]Under “ballot process” the letter said: “It is our understanding that the postal ballot process commenced in Barony on 19 March before details of the pay offer which included associated promises surrounding annual leave and job grading had been confirmed in full. We are concerned your members could not have had the full particulars. Although we cannot influence the outcome, the decision taken not to include the fuller information on the ballot paper was also we feel detrimental to the process and not in the full spirit of full transparency and progressive relations – with the overall aim to reach agreement. We now do not know the extent to which this could have impacted the outcome. Is it possible for you to share the percentage turnout of returned ballot papers for information?”

[38]Under “current status and feedback” the letter said: “The inability to reach a mutually acceptable pay agreement at Barony has understandably caused unrest and dissatisfaction amongst our employees. It is in the best interest of both the company and its employees to find a resolution that addresses the concerns raised during the collective bargaining process. We kindly request you provide the main feedback points in summary coming from your members so we can gain a better understanding of the reasoning beyond the rejection of the 5% pay offer. As you will appreciate time is critical as we appreciate a rapid response so we can provide a focussed update. If you are unable to do so please let me know by 23 April 2024. It is important for us to establish common ground and identify any points we may not have considered from our employees. We are also considering further way to reach out to employees directly.”

[39]Under “next steps” the letter concluded: “As you know the agreement with Unite covers hourly paid maintenance and production employees. Following the successful Hexham ballot and in order to protect the interest of our employees please note we will implement the 5% increase for all employees, all sites effective 1 May 2024. We do this in good faith to prevent any detrimental impact on employee pay (whilst additional topics are resolved)... We are hopeful that we can collaborate to reach a positive resolution.”

[40]Ms Ball sent the letter to the Barony union representative and said she looked forward to hearing from the representative once had had considered the points arising. She noted in an email to the senior managers saying the letter outlined the company’s reasoning at this stage saying: “as [the union] will not like us implementing the pay increase as it undermines their position a little”.

[41]On 19 April 2024 the union official thanked Ms Ball for updating him saying that the ballot was in relation to the 5% offer as “there was nothing else to ballot on”. He believed the pay offer was the only relevant matter for Barony members. With regard to feedback he said the vast majority of his members did not think the offer was acceptable. He then said: “Finally I have to reiterate that we are not in a position at this time to agree with the current 5% offer. As such if the company decide to go ahead with the implementation of the 5% on May 1st we would have no other option than to register a failure to agree, and consult our members on how they wish to proceed. As always we are open to discussions in order to reach some form of agreement but in the spirit of transparency I feel I have to make clear our intentions should this not happen”.

[42]On 23 April 2024 all employees in Barony received a communication from the respondent headed “”Pay offer 2024” (“the Offer”) saying: “We write to summarise and confirm the pay offer which will be implemented across all our UK sites. Effective 1 May 2024 the annual increase will be 5%. We hope this offer which we feel is strong and reasonable will be well received. We now want to share the rationale as well as related initiatives.”

[43]The letter then listed a number of points including: “Every year we carry out detailed pay and benefit reviews to ensure we remain competitive for our employees as well as attractive in the employment market. As a result we have a strong history of responsible and highly competitive conditions against market trends. In 2023 we increased pay by 7% which was significant and higher than many other employers. The offer of 5% for 2024 is higher than we see in the manufacturing sector on average with predicated figures of 4% on average and some pay deals around 2%. We commit to paying benchmarked rates of pay, Research reveals we pay on average above other companies for similar roles and shift patterns. Rates of pay need to be reasonable and reflect job roles and responsibilities. Uk inflation was 3.2%. We have significant sustainable growth and investment at Barony”.

[44]The letter continued: “Since the last pay review we listened carefully to feedback directly from our employees surrounding healthcare, cycle to work, professional fees and improved sick pay.” The letter referred to bonus schemes, learning and development and enhanced fringe benefits and job grading and flexible holiday entitlement. The letter ended saying employee information forums will take place in early May and “feedback was welcome”.

[45]The respondent believed that an impasse had been reached with the union. The respondent considered an impasse arose from 19 April 2024 as there was no obvious way to achieve agreement, the respondent believing 5% was the best that could be offered and the Barony representatives wanting more. The respondent had sought information from the local union representatives as why the offer had not been accepted which was at odds with the position in Hexham, where the roles were similar. The respondent believed it had done all it could to negotiate with the respondent and had sought to find a solution that allowed consensus to be reached. The respondent believed the union was not prepared to change their position. The respondent believed it had made a very fair offer and was not prepared to change its position. The respondent sought to identify if there were any reasons to change its position but none was forthcoming.

[46]The respondent had two inconsistent ballot results, which it did not consider capable of being reconciled. Both sites had been through a harmonisation project with staff expecting the same pay increases but the ballot created an issue. The cost-of-living crisis and the prospect of a lengthy period being required to resolve the dispute led the respondent to decide to act consistently with the Hexham result, to be fair to all employees, against the Barony result.

[47]The respondent had been open with the Barony representatives about its thinking, letting them know in advance on 18 April 2024 their position and seeking feedback. None was forthcoming. The respondent genuinely believed there was nothing new to discuss and there was no basis to change course.

[48]An impasse had arisen on the pay rise. The respondent could see no reason to increase its offer from 5%, the union at Barony could not agree to, or even offer or discuss, less than 6%. The Barony representatives had not adopted a collaborative approach and the respondent considered there to be no alternative but to communicate their rationale with all staff.

[49]By 19 April 2024 the collective bargaining process had concluded as the respondent believed no agreement had been reached and the parties were in dispute. The respondent concluded there was no realistic prospect of a resolution given the impasse and what had happened and the position.

[50]On 24 April 2024 the union official sent an email to Ms Ball headed “implementation of non agreed pay rise” saying: “Having been made aware of a communication which was sent to staff in Barony I feel I had to express my concern with respect to any move to implement any pay rise without agreement from Unite and this being reflected on the Barony site.” He expressed concern about not having heard from the respondent and felt his members would feel disregarded and ignored. He asked the respondent to reconsider their decision and enter dialogue to avoid a formal dispute. He suggested ACAS to alleviate the situation. Regardless of the position, he said he saw this as a failure to agree and saif that next steps would be considered.

[51]Ms Ball replied that day saying her intentions were made clear in their letter of 18 April 2024 and the respondent intended to implement the 5% whilst other topics were being navigated to prevent any detrimental impact on pay and in good faith. The respondent did not consider it fair to delay an increase for others and wished to be practical and reasonable, benefiting all. She said she could remove individual employees from the uplift if required but as the respondent did not know who union members were, individuals would need to confirm their position. She noted that there was still a failure to agree and she was open to ACAS involvement but that did not change the status quo. She concluded saying that members had not been ignored as they had sought more detailed feedback on 10 and 18 April to build relations in a focused and constructive way. Nothing was received from the union and there was a poor approach taken by the Barony representatives during the negotiations which was disappointing.

[52]The union official replied saying: “Given there doesn’t seem to be an offer of any potential dialogue or discussion to alleviate the issue” we will communicate with members as to industrial action. He said he did not believe there was any alternative and remained open to any dialogue, which was what he said in every communication.

[53]On 13 May 2024 Ms Ball emailed her senior management colleagues confirming that she had spoken with ACAS to seek a face to face meeting with the Barony union officials. She noted that other than remove all production and maintenance hourly paid employees from the benefit of the increase, which was unfair, there was no way round the dispute.

[54]On 14 May 2024 all staff were told that following the communication of 23 April 2024 pay will be increased by 5% with effect from 1 May 2024. The communicated noted: “Please note we are still engaging with Unite therefore if you do not want this change to be made to your terms and conditions please contact the payroll department in confidence as a matter of urgency. Should the outcome of our discussions mean a different resolution is reached in terms of the pay review these terms will take effect from 1 May 2024.” A letter was also issued on 15 May 2024 repeating the foregoing noting since the last pay review feedback from employees was listened to carefully and improvements were made, such as to sick pay and other benefits.

[55]On 29 May 2024 a meeting took place at ACAS between the union and the respondent. The respondent believed the process had been “mismanaged” by the union as there were failures to communicate effectively to employees. The respondent said it tried to foster open communication but this had not been reciprocated. The rationale for the 5% increase was repeated together with the other benefits provided. The respondent noted that the 5% was implement to protect all employees in good faith and had been explained to the union and employees, who were advised the respondent continued to engage with the union. Despite best endeavours the impasse remained and the respondent felt trust had broken down with the Barony representative. The union had not changed its position and dissensus remained.

[56]On 30 May 2024 Ms Ball sent an email to the senior management team noting that the ACAS meeting took place and the union refused to change their position. She noted that the only option was to contact the Scottish Secretary given the breakdown in trust and perceived intransigence at a local level.

[57]On 16 July 2024 early conciliation was commenced in respect of Tribunal proceedings. The union decided not to proceed with industrial action. Observations on the evidence

[58]The Tribunal found each of the witnesses generally to be credible. They did their best to recollect the position and set out the position as they saw it.

[59]The claimant did his best to explain the position as he saw it. He chose not to include all the items offered by the respondent in the 2024 pay negotiation in the ballot to his members in stark contrast to the position in Hexham. He believed the undertakings were not worthy of being included. It was clear that he bore some resentment to the respondent. He was angry that the respondent had not respected the ballot. He did not consider it necessary to provide detail as to the reasoning for the rejection and had expected the respondent to increase their offer. On occasion the claimant answered questions in cross examination with a question or retort as to the respondent, rather than focussing on the issue. With some hesitation and reluctance the claimant accepted that harmonisation had resulted in the there being a belief that those employed in Hexham and Barony doing the same work (on the same grades, as harmonised) would expect the same rates of pay.

[60]Mr McFarlane spoke cogently and clearly and did his best to recall matters. He was candid in stating that both the trade union and the respondent “ignored the collective agreement in the same vein”. He accepted that neither party had given the written agreement any thought during the negotiations, instead seeking to persuade the other of their position (and failing).

[61]By referring to “registering a failure to agree” Mr McFarlane was using a technical term, not one from the collective agreement per se. In his email of 19 April 2024 while expressed conditionally, Mr McFarlane was clear and cogent in his recollection. His position was that by 19 April 2024 when he had been told the respondent was proceeding to implement the pay rise across the board, he considered the negotiations to have ended. He believed the only option once the respondent chose to do so was to ballot members for industrial action. He was clear that by telling all employees the pay deal would be implemented, the respondent to have made it clear negotiations ended.

[62]Mr McFarlane believed there had been an example of Barony and Hexham having different ballot outcomes but the Tribunal considered that Ms Ball was more likely than not to have a clearer recollection. It was more likely than not that had there been a similar situation before this would have been set out by either or both parties at the time. Instead this was a position neither party – the respondent or union – had envisaged. The added complexity of harmonisation made this more difficult. Had there been a situation where a different ballot had arisen, such a situation would have been raised at the time and how the matter dealt with raised (and followed or not followed with an explanation). There was no reference to such a situation at all.

[63]Ms Ball was clear in her response and was candid and consistent. The Tribunal found her recollection of the harmonisation position to be more likely than not to be the case. It was her position that the union had raised the issue of harmonised rates following the bringing together of Barony and Hexham. Given the different rates in place it took a while to assess each role into the relevant grade. The 3 grades in place in Hexham were used and matched with suitable grades from Barony. That took a number of years and was not always met with agreement.

[64]Ms Ball believed that the company had been clear in its communication to staff and that it was believed that the rates would be the same. However, the Tribunal did not consider that to be the position which was set out in writing nor unequivocally agreed. The respondent’s agent argued the context was clear but the written position was unclear and indeed could be read both ways. It was more likely than not that the parties believed that the ballots would always be the same and had simply not consider what would happen in a divergence situation. The reference to rates being the same was on the basis of a presumed ballot having returned the same rates. Had the respondent wished to make it clear that the contractual position of all relevant staff was changing, it was for the respondent to put this beyond doubt. Ms Ball’s belief was not sufficient to alert each employee’s contractual position. Further, it was clear that no one had considered the impact of the separate collective bargaining machinery as to the harmonisation process and expectations.

[65]The Tribunal found Ms Ball’s evidence in relation to the reasons for proceeding with the implementation of the 5% to be credible and clear. Ms Ball explained that the company was in a position in which it had never found itself. It had always been thought that Hexham and Barony would be the same. The pay negotiation was as one unit and there was never a thought given to there being any divergence. When this occurred, it was clear that Ms Ball wished to continue to be collaborative with the union but she was frustrated. She had tried all she could to get more information from the union to assist in her exploring options and seeking agreement but she genuinely believed the union would not alter its position. She believed the union was not prepared to move from its position. Similarly the company was not prepared to increase its offer. It was only by telling staff their rationale that she believed the impasse that had been reached could be resolved by a further union ballot. That in itself showed that Ms Ball’s intention was to continue with the collective bargaining machinery rather than seek to avoid it.

[66]Ms Ball considered the only fair option was to give everyone the 5% pay increase. By that time she considered the negotiations to have ended but was still prepared to have discussions with the union. She believed she had sought as much information as she could from the local representative but the response she received was considered by her to be poor. She believed the Barony representatives had not fully engaged in the process and had not been forthcoming. She genuinely wanted to be fair to everyone and avoid delaying an increase to those who were not union members but covered by the bargaining unit. She genuinely believed it would be unfair and damaging not to pay those individuals the 5% pay increase where that had been approved by Hexham, in respect of those doing the same job whose terms had been harmonised but whose union had diverged from the union representing Barony. For her, fairness was the principal reason for the implementation.

[67]At no point at the time was there ever any reference to harmonised terms and conditions in the communications at the time as a reason for the implementation. Had the respondent believed harmonised terms and conditions to be a specific reason for making the change (rather than as background) it was more likely than not to have been something that would have been committed to writing alongside the other reasons. At no stage does the respondent express say harmonisation was a reason for the implementation. Even if it was so obvious that everyone knew that to be the case, that would have been set down in writing as such. The absence of any reference to that despite the clear communication supports the inference that the harmonisation issue was not a direct reason or the implementation as such. Rather the focus was on treating everyone fairly and to avoid uncertainty given the backdrop of a harmonised workforce.

[68]Ms Ball was candid and recognised at the time by so doing the union would feel undermined. She recognised the importance of collective bargaining but also recognised that the process had stalled. She could not see how the situation would change given the impasse reached. She had done her best to identify ways to reach agreement and considered there to be no reasonable prospect of a resolution. She continued to seek the union’s agreement and made it clear she would consider any alternative position but even at the ACAS meeting it was clear that the Barony representatives’ position had not changed and they were not prepared to alter their approach. The respondent’s position was that they had been as fair as they could and the offer was the best available.

[69]Mr McArthur was clear in his reasons for the implementation. As with Ms Ball, the principal reason for implementing the deal to all was fairness. He wished to be fair to everyone and against the harmonisation backdrop he considered it to be unfair not to provide all with the 5% pay increase while continuing to work with the union with regard to agreement on Barony. He believed the union’s approach to have been unhelpful as to seeking agreement and genuinely believed there was no further steps that could be taken with the union. It was for that reason providing employees with the full information directly was chosen to ensure everyone understood the rationale.

[70]Despite repeated cross examination Mr McArthur maintained his position that he wanted the company to be fair to all staff which was why everyone received the 5%, with those who wished to opt out being able to do so and with there being an open door should there be any breakthrough with regard to the impasse that had been reached.

[71]Mr Steinlechner was also clear in wishing to ensure all staff were treated fairly. He recognised that there were 2 separate collective bargaining units but he considered that the negotiations with the Barony side had ended, there being an impasse that was not capable of being resolved. That aligned with Ms Ball’s position and led to the respondent communicating directly with all staff (and the union) and implementing the deal across the board.

[72]There were no specific factual disputes that the Tribunal required to resolve and the key issue was determining what the respondent’s sole or main purpose in making the offer was (determined principally from Ms Ball’s evidence in light of the context and what others could say around the time the offer was made).

Law

[73]The appliable law is section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992: “(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. ….. (5) A worker or former worker may present a complaint to an employment Tribunal on the ground that his employer has made him an offer in contravention of this section. 145D ….. (2) On a complaint under section 145B it shall be for the employer to show what was his sole or main purpose in making the offers. …. (4) 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, (b) that when the offers were made the employer did not wish to enter into arrangements proposed by the union for collective bargaining, or

(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.”

[74]The Employment Appeal Tribunal in Kostal UK Ltd v Dunkley

2018 ICR 768

set out a summary of these factors and their relevance in these cases: ‘There is an infinite spectrum of facts that might have to be considered in a section 145B case: at one end of the spectrum there may be cases where the employer has sought to change collective bargaining arrangements and then, without entering into collective negotiations or acting precipitately in the midst of such negotiations, and absent some pressing business aim, makes offers that would have the effect that all employment terms will be agreed directly if accepted. At the other end of the spectrum will be employers who have engaged in lengthy and meaningful collective consultation and reached an impasse before considering making direct offers; or who can demonstrate a strong history of operating collective bargaining arrangements with the union and/or have no wish to avoid entering into such arrangements when the offers are made; and there will be cases where employers can show genuine business reasons (unconnected with collective bargaining) for approaching workers directly outside the collective bargaining process. There may also be difficult cases in the middle where the employer has mixed aims or objectives it seeks to achieve, or the evidence is unclear. The question in each case is a question of fact and degree. As with other detriment cases, where an employer acts reasonably and rationally and has evidence of a genuine alternative purpose, tribunals are likely to be slower to infer an unlawful purpose than in cases where the employer acts unreasonably or irrationally or has no credible alternative purpose.’

[75]The Employment Appeal Tribunal’s decision was overturned by the Court of Appeal, and the case eventually reached the Supreme Court, which allowed the union members’ appeal and restored the Tribunal’s conclusion that the employer had offered unlawful inducements — Kostal UK Ltd v Dunkley

2022 ICR 434

. The majority in the Supreme Court focused on the nature of the ‘prohibited result’ and allowed the appeal on that basis. The majority, like the Court of Appeal, was unconvinced by the Employment Appeal Tribunal’s suggestion that an employer who acts reasonably and rationally and can show evidence of a genuine business purpose will be able to avoid an adverse finding as to its purpose in making the offer.

[76]In Ineos Infrastructure Grangemouth Ltd v Jones

2022 IRLR 768

, the Employment Appeal Tribunal upheld a Tribunal’s reliance on the employer’s decision to terminate the existing collective bargaining arrangements as evidence of an impermissible purpose. One of the findings that worked against the employer was that it had told employees that it was terminating the collective bargaining agreement with the union in light of the ‘unsatisfactory’ way in which the union had conducted pay negotiations. It stated that it was happy to negotiate with a works council or another trade union. The Tribunal found that the employer made an offer that had the prohibited result. The result of the offer was that the employees’ terms would not be collectively bargained for the period of the 2017 pay award in circumstances where there was a real possibility that, had the offer not been made and accepted, the terms would have been determined by a new collective agreement. The Tribunal went on to find that the employer’s purpose was to achieve the prohibited result. It was a business decision to conclude collective bargaining unilaterally because the employer considered that negotiations had gone on long enough, and it did not wish to re-enter negotiations where two out of three unions had accepted the pay offer.

[77]There was no attempt to reconvene the collective process or consult its members about next steps in light of the decision to reject the pay offer. It was not the result of a genuine belief on management’s part that collective bargaining was already at an end; it was a decision by management because it did not wish to continue collective bargaining and, therefore, in order to implement the pay award, it would impose it unilaterally. That was the purpose in making the offer. It was immaterial whether the employer’s decision was reasonable or unreasonable, or whether the union had acted reasonably or unreasonably; the only issue was the employer’s subjective purpose. Burden of showing purpose is on employer

[78]It is for the employer to show what its sole or main purpose was in making the offer. Mrs Justice Simler, summarised the correct approach to the burden of proof in Kostal UK Ltd v Dunkley

2018 ICR 768

(which reasoning was not challenged on appeal). She stated that, by analogy with detriment cases it is for the claimant to raise a prima facie case and, if that is made out, the employer must prove on the balance of probabilities that it had an alternative, proper purpose which was either its only purpose or at least an equally important purpose in making the offers. Discussion and decision

[79]The parties had worked together in this case such that there were 2 key issues for determination with both parties having exchanged written submissions and having had the chance to supplement their submissions orally, comment upon each other’s submissions and answer questions from the Tribunal. Having considered the evidence, law and submissions the Tribunal was able to reach a unanimous decision on both points. The Tribunal takes each issue in turn. Harmonisation

[80]The first issue was whether those represented by the Barony representatives were contractually entitled to the pay received by those represented by Hexham representatives (or vice versa). If this is established, the claim would fail since the respondent would be contractually bound to make the Offer. The respondent’s agent conceded that there was no express confirmation of the position advanced. At no point had the respondent said, in terms, that staff covered by the harmonised terms and conditions were to be paid the same rates, irrespective of (or despite) the collective bargaining machinery in place.

[81]The respondent’s position was that the letter issued on 19 October 2017 created a contractual right. However that letter said the harmonisation process “will conclude in October 2017 and going forward pay rates will be reviewed annually for both Barony and Hexham plants for 1 May and any increase applied shortly after this time”.

[82]The Tribunal considered that the reference in the letter to reviewing both Barony and Hexham plants was ambiguous. This could refer to there being one process (with staff in both plants being entitled to the same rate – irrespective of any collective bargaining machinery). Equally, however, the letter could be interpreted to mean that pay rates would be reviewed annually in Baronry and (separately) reviewed annually in Hexham. In other words the letter could be interpreted as meaning the current separate collective bargaining machinery would continue such that the annual pay deals would be dealt with in the usual way.

[83]While counsel for the respondent argued the Tribunal should infer that everyone believed the former, the Tribunal did not consider that to be sufficient to create a binding contractual entitlement on the facts of this case. Given the different ways in which the letter could be interpreted, the Tribunal considered that the most obvious interpretation was one which respected the collective bargaining machinery and the approach taken. If the respondent had wanted to abandon the separate approach taken to pay deal negotiations with Barony and Hexham, that would have been a matter taken up collectively and resolved collectively. The absence of any change to the collective position alongside the lack of clarity as to the letter, supported the interpretation advanced by the claimant, namely that the intention was to harmonise terms and conditions but that both plants would continue to be represented separately and pay deals would proceed.

[84]While it was generally believed that pay rates would be the same in both plants, there was no contractual right to such. There was no evidence before the Tribunal that the position advanced by the respondent was created at the time the letter was issued (and when the respondent said the contractual right arose. There was no evidence, for example, of the respondent and union agreeing that for all time coming what one plant agreed automatically (and without more) became the contractual entitlement to the other plant. There was no evidence that the parties had agreed that their entitlement was determined by whatever the other plant secured by its collective agreement. There would require to be clear (and unambiguous) evidence for contractual entitlement to arise in that manner in light of the clear collective bargaining machinery that existed for both plants. That was not present.

[85]While the argument advanced by the respondent’s agent was attractive, the Tribunal considered that there required to be clarity as to the offer being advanced. If the respondent was offering to match pay for all time coming (irrespective of the collective bargaining machinery) that would have been clearly set out. The failure to do so supports the alternative interpretation.

[86]The Tribunal considered each of the legal routes relied upon by the respondent to seek to argue a contractual right arose but did not find these attractive from the facts.

[87]Firstly, the respondent relied upon “the offer” by the union. This offer was said to be the union request for harmonisation. The Tribunal was not satisfied from the evidence before it that there was an unequivocal offer from the union. There was nothing in writing that supported the position. The union was unlikely to have agreed to a term that rendered their collective bargaining machinery otiose. While there was an expectation rates would be the same, which is what harmonisation means, the contractual matrix was that the respondent collectively negotiated the pay rates for each plant. There was no basis to find the union (or respondent) had offered to change this position and the reality was that the respondent and union continued to respect the collective bargaining machinery for each plant separately. It was likely that the parties anticipated there being the same outcome which would have led to the same harmonised rates.

[88]Secondly, the respondent argued there was a “promise” to employees their rates would be the same “and continue to be so”. The Tribunal found no evidence that such a promise had been made. At best the promise was to harmonise rates subject to the annual review, with the reviews utilising the collective bargaining machinery in each plant. That was what happened.

[89]Finally, the respondent relied upon custom and practice, arguing it was reasonable, certain and notorious that the same rates would apply but this ignores the separate collective bargaining machinery in place which was the reality. At the time of harmonisation it appeared that the parties had not considered what the position would be if a different collective outcome was reached in respect of both plants. It could not be said from the evidence that everyone would accept that the normal practice of each plant negotiating the pay deal collectively would be ignored and the deal offered to the other plant would automatically apply. That was not reasonable, certain and notorious.

[90]The Tribunal did not accept the position advanced by the respondent “flowed naturally from the evidence”. The respondent and union had not addressed the issue as to what happens when the collective processes at Barony and Hexham diverge. While the parties expected the pay rates to be the same (and believed they would receive the same rates) that was because it was believed the outcome of both collective negotiations was expected to be the same. Staff expected parity as a result of harmonisation but that was against the backdrop of the pre-existing collective machinery. Where there was divergence, the Tribunal considered the natural position was, as the letter suggests, that the pay rates would be determined in the usual way – collectively – at each plant.

[91]The Tribunal found from the evidence that the claimant did not have a contractual right to be paid the same as those at the Hexham plant. Those employed at the Barony plant’s terms and conditions were determined by the collective agreement pertaining to the Barony plant. Sole or main purpose

[92]The next key issue for the Tribunal was whether the “sole or main purpose” for the respondent imposing new rates of pay on 24 April 2024 was to achieve the prohibited result – where the terms of employment (ie pay increase) would not be determined by collective agreement for the pay award

[93]In considering what the sole or main purpose was the Tribunal must assess the evidence before it and determine what the sole or main purpose of the respondent was in making the offer on 24 April 2024. To succeed, the sole or main purpose in making the Offer must be to achieve the prohibited result.

[94]The claimant argued that the sole or main purpose was to avoid collective bargaining for the purposes of the pay award and impose the award. The respondent’s case was that this was not the sole or main purpose and instead the sole or main purpose of imposing the pay increase was to be fair to all staff (and ensure staff in Barony received the same pay increase staff in Hexham secured, at the same time).

[95]The Tribunal carefully considered what was said and done at the time the offer was made informed by the context. The Tribunal found that as at 24 April 2024 (when the offer was made) the respondent genuinely believed it had done as much it could collectively to reach agreement but that an impasse had been reached that could reasonably be overcome. The respondent considered that the Barony representatives were not approaching matters in the spirit of collaboration and had not been forthcoming as to the reasons why a greater pay increase would be fair given the context. The respondent was not prepared to increase their offer and the respondent did not believe the union was prepared to change its position. There was no likelihood of a resolution, the respondent having sought information to allow it to work with the union.

[96]This was not a case where the respondent closed its mind to reaching agreement with the union. Rather the respondent sought to engage with the union to find agreement or common ground. The respondent believed the union would not change its position (a belief shown to be true given the approach taken to the ACAS meeting where the union refused to alter its negotiating position). The respondent had been open and transparent with staff and the union. This issue arose because Hexham had approved the offer. The respondent was concerned those in Barony who were not union members would expect the same rate of pay given the harmonisation background. The respondent wanted to be fair to everyone and achieve equality. The collective bargaining machinery at Barony had stalled.

[97]Following imposition of the Offer, discussions continued as the respondent had said they would but nothing changed. The respondent wished to agree the pay rate with the union and discussions continued but the issue was whether in imposing the rate when it made the Offer, the sole or main purpose was to avoid collective bargaining. The Tribunal must consider what the purpose of the respondent was at that time the Offer was made.

[98]Ms Ball, who conducted the negotiations for the respondent, hoped that by being open and transparent with all staff, when the collective machinery was applied, the outcome would be different. She considered the Barony representatives to have poorly communicated the position since they had focused on the pay rise alone. She wanted to ensure everyone understood the rationale to result in an improved ballot outcome. Her approach in so doing underlined the respondent’s commitment to achieving a result via the collective bargaining agreement and was a strong indicator that avoiding the prohibited result was not the purpose of the Offer. The Tribunal adopted a critical approach in assessing the reasons given by the respondent.

[99]The Tribunal analysed the evidence and considered the context in assessing the reason for imposing the offer recognising that in making the Offer in the way the respondent did, it was entirely possible the respondent did have as its sole or main purpose the prohibited result. The Tribunal was careful to look at the entirety of the evidence in context and in a critical way. The Tribunal found that the main purpose for imposing the pay rise (ie making the Offer) was the desire to be fair to all staff, those working in Hexham and Barony, against the backdrop of a harmonised workforce. What was the sole or main purpose in making the Offer?

[100]This claim is determined by assessing whether in making the Offer the respondent had its main (if not sole) purpose the prohibited result, ie have terms of employment (pay) determined other than by collective agreement. The Tribunal concluded the sole purpose of the Offer was not to seek to achieve the prohibited result. The Tribunal was also satisfied the main purpose of the Offer was not to seek to achieve the prohibited result.

[101]The parties were negotiating and seeking to achieve agreement by collective means. It was in both party’s interest to maintain good relations. While the respondent was frustrated with the Barony representative’s approach, the frustration was with the individual representative and their communication (not the collective process). The respondent wanted collective agreement as to pay, as had been achieved with Hexham. That desire remained in place even although the respondent concluded agreement was not possible.

[102]The onus is on the respondent to show what the sole or main purpose in making the Offer was and the Tribunal considered the evidence before it. The assessment is to determine what the purpose of the Offer was, when it was made, informed by what happened at the time and after the Offer was made.

[103]The Tribunal took account of the context and in particular the position advanced by the claimant. The fact that discussions were ongoing (and the respondent wanted a response from the union) was a relevant consideration. The Tribunal took into account the collective bargaining machinery that was being applied by the parties and what was said and done at the time. The respondent had repeatedly asked the union for information to assist it in understanding why its members had voted so conclusively against the increase. The Barony representatives did not approach the matter in the same way as the Hexham representatives. The respondent considered Barony representatives to have failed to fully communicate the company’s position properly to its members. That led to the respondent directly communicating its position with all staff in the hope their vote would change. The communication was staff had its purpose influencing the collective position in a positive way (as opposed to by passing the collective machinery).

[104]This was not a case of the Offer being made and no attempt being made to engage with the union. Nor was this a case of the respondent ignoring the union. While the terms of the collective agreement had not been followed by either party, it could not be said from the evidence that the respondent had sought to impose the Offer to avoid having the pay award determined by the collective agreement. The continued discussion with the union and approach taken showed the respondent wished to achieved a collective solution vis a vis the pay increase.

[105]During submissions the claimant’s agent was asked what their position was with regard to the reasons given at the time for the implementation of the pay increase, that the respondent wanted to treat employees of both plants fairly. The respondent’s agent argued the reason had not really been challenged in cross examination. While accepting the position could have been put more robustly, the claimant’s agent argued that the context showed that the respondent “wanted to avoid negotiations”. The Tribunal did not accept that from the facts. Ms Ball had repeatedly sought to engage with the union and she wanted a negotiated collective outcome. That remained the case.

[106]The claimant’s agent accepted it had not been expressly put to the respondent’s witnesses that their stated reasons had not been genuine but argued the “underlying reason” the respondent had was to avoid collective bargaining and that during the collective bargaining process an offer was made directly to staff which had the prohibited result. However, in making the Offer, by definition, the prohibited result would arise (since the offer results in terms being determined individually). The issue for the Tribunal is to assess the purpose (not the consequence) of the offer: was the sole or main purpose to achieve the prohibited result. Even if avoiding collective bargaining was “underlying” the approach taken and even if a purpose was to avoid collective bargaining, for the claim to be upheld the sole or main purpose would need to be achieving the prohibited result.

[107]On balance and having carefully assessed the evidence, applied the law and utilised the benefit of the industrial experience of the non-legal members, the Tribunal concluded that, from the facts, the respondent’s sole or main purpose in making the Offer was not to achieve the prohibited result. The respondent had satisfied the Tribunal its sole or main purpose in making the Offer was not to achieve the prohibited result.

[108]The Tribunal analysed the evidence assessing what the respondent’s purpose was at the time the offer was made, viewing the evidence in context and critically considering the position. The Tribunal did not find the claimant’s agent’s submissions to have merit. The respondent’s sole or main purpose was not to achieve the prohibited result. The respondent had satisfied the Tribunal the main purpose of the Offer was to achieve fairness across both sites in the context of a harmonised workforce in both plants.

[109]The claim is accordingly dismissed. Multiple Schedule Multiple: 4100817 - Egger (UK) Limited Case Number Case Name 4106703/2024 Mr A Adams -v- Egger (UK) Limited 4106704/2024 Mr A Adams -v- Egger (UK) Limited 4106705/2024 Mr R Allan -v- Egger (UK) Limited 4106706/2024 Mr N Armstrong -v- Egger (UK)Limited 4106707/2024 Mr D Bell -v- Egger (UK) Limited 4106708/2024 Mr T Bell -v- Egger (UK) Limited 4106709/2024 Mr S Bell -v- Egger (UK) Limited 4106710/2024 Mr S Best -v- Egger (UK) Limited 4106711/2024 Mr R Brown -v- Egger (UK) Limited 4106712/2024 Mr M Cairns -v- Egger (UK) Limited 4106713/2024 Mr R Carmichael -v- Egger (UK) Limited 4106714/2024 Mr S Gillon -v- Egger (UK) Limited 4106715/2024 Mr H Graham -v- Egger (UK) Limited 4106716/2024 Mr A Heron -v- Egger (UK) Limited 4106717/2024 Mr R Higgins -v- Egger (UK) Limited Lead case 4106718/2024 Mr G Hunter -v- Egger (UK) Limited 4106719/2024 Mr R Kelly -v- Egger (UK) Limited 4106720/2024 Mr J Kelly -v- Egger (UK) Limited 4106721/2024 Mr W Lawrie -v- Egger (UK) Limited 4106722/2024 Mr S Lennox -v- Egger (UK) Limited 4106723/2024 Mr T Mackie -v- Egger (UK) Limited 4106724/2024 Mr A McClue -v- Egger (UK) Limited 4106725/2024 Mr S McDougall -v- Egger (UK) Limited 4106726/2024 Mr M McFarlane -v- Egger (UK) Limited 4106727/2024 Mr A McGarvie -v- Egger (UK) Limited 4106728/2024 Mr J McGhee -v- Egger (UK) Limited 4106729/2024 Mr D McGuckin -v- Egger (UK) Limited 4106730/2024 Mr D McKee -v- Egger (UK) Limited 4106731/2024 Mr C McLean -v- Egger (UK) Limited 4106732/2024 Mr A McMeekin -v- Egger (UK) Limited 4106733/2024 Mr D Merrilees -v- Egger (UK) Limited 4106734/2024 Mr J Mulholland -v- Egger (UK) Limited 4106735/2024 Mr T Murphy -v- Egger (UK) Limited 4106736/2024 Mr G Palmer -v- Egger (UK) Limited 4106737/2024 Mr R Paterson -v- Egger (UK) Limited 4106738/2024 Mr T Rae -v- Egger (UK) Limited 4106739/2024 Mr K Rae -v- Egger (UK) Limited 4106740/2024 Mr J Reid -v- Egger (UK) Limited 4106741/2024 Mr M Riddall -v- Egger (UK) Limited 4106742/2024 Mr J Roxburgh -v- Egger (UK) Limited 4106743/2024 Mr I Sim -v- Egger (UK) Limited 4106744/2024 Mr A Sim -v- Egger (UK) Limited 4106745/2024 Mr P Smith -v- Egger (UK) Limited 4106746/2024 Mr F Smith -v- Egger (UK) Limited 4106747/2024 Mr T Stevenson -v- Egger (UK) Limited 4106748/2024 Mr J Sym -v- Egger (UK) Limited 4106749/2024 Mr L Symonds -v- Egger (UK) Limited 4106750/2024 Mr E Todman -v- Egger (UK) Limited 4106751/2024 Mr R Walker -v- Egger (UK) Limited 4106752/2024 Mr B Wheeler -v- Egger (UK) Limited 4106753/2024 Mr C White -v- Egger (UK) Limited 4106754/2024 Mr N Wilks -v- Egger (UK) Limited 4106755/2024 Mr D Young -v- Egger (UK) Limited