Birmingham City Council v Unite the Union
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 01 March 2019 |
| Neutral Citation | [2019] EWHC 478 (QB) |
| Docket Number | Case No: QB2019000592 |
| Court | Queen's Bench Division |
| Date | 01 March 2019 |
[2019] EWHC 478 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION – QB
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: QB2019000592
Mr Andrew Burns QC, Ms Alice Carse and Ms Marianne Tutin (instructed by Pinsent Masons LLP) for the Claimant
Mr Oliver Segal QC and Mr Stuart Brittenden (instructed by Thompsons) for the Defendants
Hearing dates: 28 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application by the Claimant, Birmingham City Council (“BCC”), for an injunction to restrain two trade unions (“Unite” and “UNISON” respectively, and collectively “the Defendants”) who represent members employed by BCC from calling industrial action and strike action amongst their members at various depots in the Birmingham area.
Unite members have been taking industrial action short of a strike since 29 December 2018, which has escalated to 24-hour stoppages starting on 19 February 2019 and 48-hour stoppages from 27 February 2019 (although Unite suspended its strike for 27 February 2019, but not for the next day). UNISON's members have been taking industrial action short of a strike since 25 January 2019. There is no issue about the effectiveness of the ballots pursuant to which such action has been taken. In the case of Unite, the ballot was between 30 November and 14 December 2018. In the case of UNISON, the ballot was between 17 December 2018 and 8 January 2019.
Unite and UNISON respectively have, following the ballots called on its members to take industrial action. It is not in issue that but for the statutory protection under the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), an action could be brought based on inducement to breach of contract. The primary issue is whether or not the protection under s.219 of TULRCA applies, and in particular whether the effect of s.222 of TULRCA is to remove the protection in this case.
The secondary issue is whether the effect of delay on the part of BCC in bringing the application for interim injunctions is such that it would be wrong to grant the relief sought.
The Court received the papers including the skeleton arguments in this case in the course of Wednesday 27 February 2019 and heard argument on Thursday 28 February 2019. The evidence comprises witness statements of Robert James for BCC dated 20 February 2019, Howard Beckett of Unite dated 26 February 2019, Mark New for UNISON dated 26 February 2019 and a supplemental statement of Robert James dated 27 February 2019. In view of the urgency of the matter, that is strike action on 1 March 2019, further action on Monday 4 March 2019 and further action thereafter, it has only been possible to adjourn for judgment for a short period, that is overnight so that this judgment could be given on Friday 1 March 2019.
The statutory protection
TULRCA provides as follows:
“219 Protection from certain tort liabilities.
(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or
(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.
(2) …
(3) …
(4) Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections “not protected” means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person.
221 Restrictions on grant of injunctions and interdicts.
(1) …
(2) Where—
(a) an application for an interlocutory injunction is made to a court pending the trial of an action, and
(b) the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute, the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party's succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) or section 220 (peaceful picketing).
Action excluded from protection
222 Action to enforce trade union membership.
(1) An act is not protected if the reason, or one of the reasons, for which it is done is the fact or belief that a particular employer—
(a) is employing, has employed or might employ a person who is not a member of a trade union, or
(b) is failing, has failed or might fail to discriminate against such a person.
(2) For the purposes of subsection (1)(b) an employer discriminates against a person if, but only if, he ensures that his conduct in relation to—
(a) persons, or persons of any description, employed by him, or who apply to be, or are, considered by him for employment, or
(b) the provision of employment for such persons,
is different, in some or all cases, according to whether or not they are members of a trade union, and is more favourable to those who are.
(3) …
(4) …
(5) References in this section to not being a member of a trade union are to not being a member of any trade union, of a particular trade union or of one of a number of particular trade unions.”
244. Meaning of “trade dispute” in Part V.
(1) In this Part a “trade dispute” means a dispute between workers and their employer which relates wholly or mainly to one or more of the following—
(a) terms and conditions of employment…”
In summary, without the protection, the conduct of the unions in organising industrial action and strike days would be tortious including the tort of inducement to breach of contract. TULRCA gives protection from tort liabilities in limited circumstances. The act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort only on the ground that it falls within s.219(1)(a) or (b). It is not in issue in this case for the purpose of this interim application that the action was in contemplation or furtherance of a trade dispute since the case is about the refusal of BCC to make payments to employees and therefore relating to wholly or mainly to the terms and conditions of their employment: see London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers [1993] IRLR 344 and s.244 of TULRCA. It is not in issue that but for the protection, if it applies (and the effect of any delay), there could be an injunction for the actual or threatened economic torts (or one or more of them) referred to in s. 219.
The primary issue is whether the protection is removed in this dispute by s.222(1)(b) of TULRCA. It is necessary first to identify the act of Unite or UNISON respectively. It is then necessary to identify whether at least one of the reasons for which the act is done is the fact or belief that BCC is failing, has failed or might failed to discriminate against a person who is not a member of a trade union. In this case, not being a member of a trade union is either not being a member of Unite or UNISON.
The effect then is that if the protection is not removed by s.222(1)(b) of TULRCA, the acts of Unite or UNISON in inducing the industrial action or the strike action are in furtherance of a trade dispute and fall within the protection of s.219 of TULRCA. That is for the purpose of the interim injunction application.
In considering an application for an interim injunction for the economic torts referred to in s.219(1) of TULRCA, where the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute, the court in exercising its discretion whether or not to grant an injunction shall have regard to the likelihood of success of the defendant in establishing the statutory protection: see s.221(2) of TULRCA. The effect is to adjust the American Cyanamid test in this context which concentrates on whether there is an arguable case and the Court then considers adequacy of damages, the balance of convenience and the justice of the case. In this context, if there is a prima facie case of the tort of inducement to breach of contract, the key question is then whether it is likely that the defendant trade union would establish the statutory defence. The Court is generally not concerned with the merits of the underlying dispute or the balance of convenience between the parties or the convenience of the public: see London Underground Ltd v ASLEF [2012] IRLR 196 per Eder J at paragraphs 12–13:
“12. In construing and applying the provisions of the 1992 Act, regard must be had to the importance of union members having an “effective right to withhold their labour” and to the fact that these provisions “are not designed to prevent unions from organising strikes, or even to make it so difficult that it will be impracticable for them to do so” ( BA v Unite (No. 2), paras 109, 113, 153 per Smith LJ). There is no presumption that the immunity from common law liability provided to trade unions is to be narrowly construed ( RMT v Serco Ltd; ASLEF v London Midland [2011] ICR 848, CA, para 9 per Elias LJ).”
“13 For these reasons, it is important to emphasise that in considering the...
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