Argos Ltd v Unite The Union
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 26 May 2017 |
| Neutral Citation | [2017] EWHC 1959 (QB) |
| Docket Number | Case No: IHQ/2017/0219 |
| Court | Queen's Bench Division |
| Date | 26 May 2017 |
[2017] EWHC 1959 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Justice Dingemans
Case No: IHQ/2017/0219
Mr Sean Jones, QC (instructed by TLT LLP) appeared on behalf of the Claimant
Mr Ben Cooper, QC (instructed by Thompsons solicitors) appeared on behalf of the Defendant
(As Approved)
Introduction
This is the hearing of a claim by the claimant, Argos Ltd, to restrain the defendant, Unite the Union ("Unite"), from inducing its members to continue taking part in industrial action in reliance on the outcome of a ballot of members conducted between 18 April and 2 May 2017. A previous hearing on 16 May 2017 was adjourned by King J because there had been a failure to give three days' notice to Unite. Delay is still an issue before me. The industrial action is continuing at the present and is scheduled to continue until 0559 hours on 31 May 2017.
I heard argument yesterday, and I should record immediately that I am very grateful to Mr Jones QC and Mr Cooper QC and their respective legal teams for the excellence of the submissions before me. I reserved my judgment at the conclusion yesterday because a number of documents were produced to me during the hearing which I needed time to consider, saying I would give this judgment this morning at 11 o'clock. I will hands to the parties a note to assist them in writing down the judgment, but the note is not comprehensive and should not be relied upon as a record of the judgment. However, as I will be handing down the note, I should (to avoid attempts to read towards the end of the note and then pass on the result) announce now my conclusion, which is that I will refuse to grant the injunction. This judgment records my reasons for doing so.
The evidence
The evidence before me is contained in three witness statements from Mr Philip Hull, distribution director of Argos based at head office in Milton Keynes, and two witness statements from Mr Matt Draper, the national officer for road transport, commercial logistics and retail distribution for Unite, and a further witness statement from Mr Parash Patel, another official of Unite. I should record in case anyone is trying to cross-reference matters that because Mr Hull's first witness statement in time was made before proceedings had been issued, it was exhibited to his second witness statement. This caused some confusion in references to the statement, but in the event nothing turned on the point.
By way of background, Argos sell and supply goods including by online sales. Argos operates a number of distribution centres across the country from which goods for online sales are distributed. Some of these distribution centres are operated by Argos and some by Wincanton. Argos recognises Unite as a union and it has in place a national forum which consists of a number of sites that have a seat on the forum. The relevant distribution sites are Wellington Parkway, Magna Park, Lutterworth, Leicestershire (known as Magna Park); Heywood Distribution Centre, Heywood; Pipps Hill Industrial Estate, Basildon, Essex; Huntworth Business Park, Bridgwater, Somerset; Whitworth Freight Centre, Castleford; and Barton Business Park, Burton-on-Trent, Staffordshire. The site at Barton is not on the national forum and there are separate arrangements for that site.
Employees at the distribution centres employed by Argos are employed on a standard form of contract which was in the evidence before me. This included a provision at paragraph 4.2 to the effect that should there be a need to change the location of a distribution centre either temporarily or permanently situated within a reasonable traveling distance to the location at which the employee worked, "consultation would take place with Unite the Union, and these discussions will take into account all individual circumstances …" So far as is material, Unite has a national level collective bargaining agreement covering its members at five of the six distribution centres. This is known as the joint stakeholder agreement and explains some of the references to "stakeholder" in the documents, and it provides for a national forum, which explains the references to "national forum" in the documents, at which Argos and Unite can discuss matters. This is a bilateral arrangement between Unite and Argos. Unite want to have multilateral arrangements in which future employers of outsourced workers who had been TUPE'd such as the Magna Park employees at Wincanton would be represented. Mr Hull noted in paragraph 23 of his witness statement dated 19 May 2017 that he did not consider that to be sensibly achievable. He did not believe that any transferee would agree to be bound by the outputs of such meetings as a third party employer.
In early January there was an announcement made by Argos that there was to be a TUPE transfer of Magna Park employees from Argos to Wincanton. The Magna Park lease is due to expire in December. The TUPE transfer is now scheduled to take place next week on 1 June 2017. Argos said that there were issues about capacity at Magna Park, and it appears that operations are intended to move from Magna Park to a site in Kettering which is a site where work has already been outsourced to Wincanton. Argos say that there are no plans to outsource the work of other distribution centres, but Unite do not accept this statement. Unite issued a briefing on 27 January 2017 to employees. This noted that Argos had been asked to allow Unite to consider the financial rationale for the outsourcing exercise and complained that there was no meaningful dialogue. "We have sought assurances regarding the maintaining of all T&Cs and in the event of a transfer to Kettering we have also asked that assurances will be given that in the event further changes are made to the Argos network, T&Cs will be protected", wrote Unite. The update went on to cast doubt on whether assurances from Argos might be reliable.
Unite's February 2017 newsletter began:
"Following Argos's announcement to TUPE the Magna Park workers over to Wincanton, the union have met the company and Wincanton on 16 and 25 January. We have sought from Argos its rationale. Unite has requested the company allow people to leave the business on Argos redundancy terms for those workers unwilling or unable to travel to the new Kettering site. The company has not responded to this request. Other requests for information were set out in the newsletter. The union's suspicions about Argos's good faith were set out and noted the company has not provided the union with sufficient comfort regarding terms and conditions of employment. Following any transfer to either Wincanton or the Kettering site. Whilst they have committed that your terms and conditions will transfer over, what happens after the transfer takes place has not been committed to. We believe that the company's approach to its current network operations will have a huge impact upon other Argos sites."
There was a meeting on 6 February 2017 between Unite and Argos. Mr Patel on behalf of Unite outlined that for people who transferred it was Argos's responsibility, and that Unite would not sit back and just talk to Wincanton, and outlined that putting TUPE to one side, Argos needed to adhere to the spirit of the national forum as there might be an impact on terms and conditions. There was discussion about Argos's ability to influence Wincanton because Wincanton would be running the Argos contract. It was explained that Unite was not comfortable with speaking with Wincanton and that Argos was the keeper of the purse, as it was put, and that Unite needed the commitment from Argos regarding what happened. Mr Patel stated that Argos were circumventing their responsibilities and that they needed to reach an agreement regarding what is adhered to for the future and that it needed to be an agreement with Unite and Argos, and that was where Unite was sitting regarding the situation. Another note of the meeting recorded that Mr Patel raised his understanding that the stakeholder would not transfer in its entirety due to it being part of the national forum, but stated Unite was keen for elements to stay the same.
By a letter dated 8 February 2017 Mr Draper wrote to Mr Hull enclosing the newsletter noting that there would be a ballot because:
"We feel that you have not given sufficient guarantees to the Magna workforce and therefore by default give rise to suspicion and concern about job security for the remaining in-house operation. It was suggested that in order to avoid a dispute, we want to receive guarantees that in the event of TUPE transfer, all existing terms and conditions transfer, and also that in the event of further changes in the operation including site closures and moving to new sites, the option of voluntary redundancy is available for those that cannot and are unable to or do not want a transfer."
It was noted that regardless of employer, the dispute would continue, and it was noted that Argos was the employer as this was an open book contract. I should record that it was common ground that Argos would not be the employer in the legal sense once the TUPE transfer had been effected.
Argos produced an update it dated 8 February 2017 which noted among other matters that as this was a TUPE transfer, it was not a redundancy situation. Argos said that it was not part of an operation to outsource all work at distribution sites. Unite produced a Magna transfer update dated 8 February 2017. It was...
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...which the proposed industrial action relates.” 48 This provision was considered by Dingemans J (as he then was) in Argos Ltd v Unite [2017] EWHC 1959 (QB), when it was common ground that: “33. … the summary had to be a reasonable summary of the dispute but needed to be no more than that. T......