Employment Appeal Tribunal Upholds Ruling Against LNER and Hitachi Rail in Trade Union Rights Case
The Employment Appeal Tribunal has dismissed an appeal by LNER and Hitachi Rail regarding breaches of trade union collective bargaining rights and procedures.
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The Employment Appeal Tribunal (EAT) has dismissed an appeal by London North Eastern Railway Limited (LNER) and Hitachi Rail Limited, confirming a previous judgment that the companies breached trade union collective bargaining rights. The case involved approximately 1,250 RMT members and centred on an unauthorised pay offer made directly to employees.
Background of the Dispute
The original Employment Tribunal judgment concerned a pay offer made on 13 November 2017 by the claimants' then-employer, Virgin Trains East Coast Ltd. The employer made this offer directly to the workforce despite ongoing collective bargaining processes with the RMT union. The tribunal previously found that this action violated section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992, as the offer was made with the intent to bypass collective bargaining.
EAT Findings on Collective Bargaining
The appellants argued that the collective bargaining process had been exhausted before the direct offer was made, citing the Supreme Court's ruling in Kostal UK Ltd v Dunkley. However, the EAT rejected this argument. It noted that, unlike the more structured procedures in Kostal, the agreement in this case was flexible and unstructured.
The EAT emphasised that there was a realistic possibility that terms would have been determined by collective agreement had the direct offer not been made. Furthermore, the tribunal found that the employer’s decision to bypass the union was a deliberate choice to stop participating in agreed processes rather than a genuine belief that those processes had concluded.
Legal Implications for Employers
In its decision, the EAT clarified that employers cannot simply rely on internal business reasons to justify bypassing collective bargaining. The ruling reinforces the protective nature of section 145B, ensuring that employers cannot unilaterally end collective bargaining to impose terms directly on employees. The appeal against the tribunal's findings on prohibited purpose was also dismissed, with the EAT noting that the employer had clearly demonstrated a desire to avoid the agreed collective bargaining arrangements.
Read the entire judgment here: London North Eastern Railway Limited and Hitachi Rail Limited v N Jiwanji and Others [2026] EAT 102
