British Airways Plc v British Airline Pilots' Association
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lord Justice Hamblen,Lord Justice Davis |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1663 |
| Date | 31 July 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2019/1780 |
[2019] EWCA Civ 1663
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MRS JUSTICE ELISABETH LAING)
The Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Hamblen
and
Lady Justice Simler
Case No: A2/2019/1780
Mr John Cavanagh QC and Mr Julian Milford (instructed by Baker McKenzie, LONDON EC4V 6JA) appeared on behalf of the Applicant
Mr Michael Ford QC, Mr Simon Cheetham QC and Mr Jack Mitchell (instructed by Farrers & Co, LONDON WC2A 3LH) appeared on behalf of the Respondent
(As Approved)
This appeal is directed at the refusal to grant an interim injunction preventing the respondent trade union, the British Airline Pilots' Association (referred to as “BALPA”), from calling on its members to take part in industrial action in furtherance of a trade dispute following a ballot of its members, who are pilots employed by British Airways plc (referred to as “BA”), all based at Heathrow and Gatwick airports. The appeal does not concern the merits or otherwise of that trade dispute, which are not a matter for the courts.
Notice of the ballot and a copy of the ballot paper were sent to BA on 19 June 2019 (referred to as “the Notice”). The Notice confirmed that BALPA intended to hold a ballot for industrial action of 3,833 employees entitled to vote. The Notice provided a table with categories of employee and the number in each category. The categories identified were: captain, training captains, training standards captain, training co-pilot, senior first officer and director of safety and security. A table of workplaces and numbers in each was also provided. The result of the ballot was published on 22 July 2019 and supported the industrial action.
BA's application for an injunction was refused following a hearing at short notice on 21 July 2019. Because of the urgency, this appeal has been convened at short notice too. I record our gratitude to counsel on both sides and to the legal teams behind them for the obvious care with which the papers were prepared and the excellence of the arguments which have assisted the court.
At common law, (the position is different under the Convention and the Social Charter, which confer qualified rights to strike) there is no right to strike and those who take part in strike action will usually be acting in breach of their contract of employment, and unions who authorise or endorse such action will be liable for inducing a breach of contract and potentially other economic torts. To enable unions to organise industrial action and employees to participate in such action, Parliament has granted certain immunities in tort. Immunity was first granted by the Trade Disputes Act 1906 in very wide terms. The current protection is much narrower and is afforded by s.219 Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) for industrial action “in contemplation or furtherance of a trade dispute.”
Since 1984 the immunity is only available to a trade union organising industrial action if procedural rules about getting the support of a ballot and giving notice to the employer of the action are observed. Those rules do not have to be complied with, but the immunity is only available to a union in respect of its actions if they have been complied with.
Two important requirements to be complied with in order to attract the immunity (both introduced in 1984 but amended since) are now contained in ss.226 and 234A of the 1992 Act: first, the requirement in s.226, which makes a union's immunity conditional on the industrial action having the support of a ballot in relation to which the detailed rules set out in ss.226–234 have been observed; and, secondly, s.234A, which makes a union's immunity conditional on notice being given to the employer of the taking of industrial action.
A challenge to the complexity of those balloting requirements as involving an unjustified and disproportionate interference with a union's rights to freedom of association under Article 11 of the Convention, which includes a right to strike, was rejected in Metrobus Ltd v Unite the Union [2010] ICR 173 CA. However, the need to give due weight to the rights to freedom of association was recognised in NURMT & Ors v Serco & Ors [2011] ICR 848 (CA) (referred to below as Serco) as in part the basis for rejecting an argument that the legislation should be strictly construed against those seeking the benefit of the immunities. Giving the judgment of the court, Elias LJ observed that the statutory immunities are simply the form taken by the legislation to carve out an ability for unions to take lawful strike action, it being for Parliament to determine how the conflicting interests of employers and unions should be reconciled in this area. He rejected the argument as illegitimate, saying it would have the same effect as a presumption that Parliament intended that the employer's interests should prevail unless the legislation clearly dictates otherwise. Instead Elias LJ held at paragraph 9:
“the legislation should simply be construed in the normal way, without presumptions one way or the other. Indeed, as far as the 1992 Act is concerned, the starting point is that it should be given a ‘likely and workable construction’…”.
The call for industrial action by BALPA in this case will be unlawful (as amounting to the tort of inducing a breach of contract) unless the immunity in s.219 of the 1992 Act is available. This depends on BALPA satisfying the balloting and notification requirements summarised above and discussed further below.
Where an application for an interlocutory injunction is made pending trial and the party against whom the application is made claims the protection afforded by s.219, in exercising its discretion whether or not to grant the injunction, the court does not apply the American Cyanamid test but must have regard to the likelihood of that party succeeding at trial in establishing any matter which would afford a defence to the action under s.219: see s.221(2) of the 1992 Act. This approach, embodying the principle established in NWL v Woods [1979] ICR 867, recognises that an interim injunction usually determines in practical terms whether a strike can go ahead or not. The court must therefore assess the strength of the union's defence under s.219. If the defence is on balance likely to succeed, subject to any other compelling circumstances that would justify the exercise of the court's residual discretion, the injunction should not be granted.
In other words, if it is more likely than not that the union will succeed in establishing a trade dispute defence at a full trial, it is only in a “very exceptional case” that an injunction should be granted: see Serco at paragraph 13, Elias LJ. There is no suggestion that the present case falls into such a category. Indeed, it is common ground that the likelihood of succeeding in establishing a trade dispute defence is determinative in this case.
In her extempore judgment given on 23 July Elisabeth Laing J rejected three separate grounds of challenge pursued by BA to the Notice. Only one of those grounds is pursued on this appeal. This is that the Notice did not comply with the obligation to give a list of the “categories of employees” and the number of employees in each of the categories entitled to vote because BALPA failed to specify, in respect of the balloted pilots, the numbers who are in (i) the short-haul fleet, or (ii) in one of the four long-haul fleets (each of which is specific to a particular aircraft type) respectively. BA contends that if BALPA had provided this information, it would have substantially assisted BA to make contingency arrangements to mitigate the effect of the strike action.
BA does not challenge any of the findings of fact made by the judge. Rather, it contends that she misdirected herself in relation to the meaning and effect of the relevant legislation when she held that it was not the primary purpose or even a purpose of the statutory provision as to notification requirements in s.226A, to assist the employer to plan how to mitigate the effects of the industrial action: see her judgment at paragraph 78. The judge accepted BALPA's submission that the legislative history was important and demonstrated that the ‘planning purpose’ had been deliberately removed by Parliament, leaving the purpose of the requirements as simply to provide such information...
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