Collectivism in labour law: only by exception

Kahn-Freund once pointed out that collective bargaining seeks to 'convert formal into factual freedom of contract as between employer and workman, by raising the latter to a level of equality of bargaining power'.1 Eighty years later, the individual employment relationship continues to be one that is hallmarked by a stark imbalance in power. Currently, the capacity of collective bargaining to raise the 'level of equality of bargaining power' is limited and is in part contingent upon the strength of the legal framework. The latter, in turn, is not all it might be though the Trade Union and Labour Relations (Consolidation) Act 1992 contains a number of both individual and collective measures in that regard. In Kostal v Dunkley (Kostal) the Supreme Court had to determine the correct interpretation of section 145B of the 1992 Act which deals with inducements by the employer relating to collective bargaining.2 The section was inserted by the Employment Relations Act 2004 following the decision by the European Court of Human Rights in Wilson and Palmer v United Kingdom (Wilson and Palmer) which had held that the UK was in breach of Art.11 of the ECHR by permitting employers to use financial inducements to persuade employees to give up their right to trade union representation for collective bargaining purposes.3 In Wilson and Palmer, the claimants had been offered a pay rise if they entered into new employment contracts under which they gave up their rights to be represented by the union in collective negotiations. Employees, such as the claimants, who refused to sign the new contracts did not receive the same benefits as those that did.