British Airways v Unite the Union Plc
| Jurisdiction | England & Wales |
| Judge | LORD CHIEF JUSTICE,MASTER OF THE ROLLS,LADY JUSTICE SMITH |
| Judgment Date | 20 May 2010 |
| Neutral Citation | [2010] EWCA Civ 669 |
| Date | 20 May 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No. C1/2010/1197 |
[2010] EWCA Civ 669
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Mccombe)
Before: The Lord Chief Justice of England & Wales
The Master of the Rolls
Lady Justice Smith
Case No. C1/2010/1197
MR D READE QC and MR P GOTT (instructed by Baker & McKenzie) appeared on behalf of the Claimant.
MR J HENDY QC and MR B COOPER (instructed by Thompsons) appeared on behalf of the Defendant.
LORD CHIEF JUSTICE: There are a number of people standing. This is going to take some time, because we are, each of us, reading our own judgments. I don't suppose Mr Hendy would take any objection if those of you standing at the back there came and sat in leading counsel's row to make whatever notes you like.
If you want to go in and out, do. Thank you very much, Mr Hendy.
The other point I want to make before we start is that we shall order an expedited preparation of the transcript of the judgment, but I am afraid that at this stage there will not be copies of our judgments to be handed down. We have been writing until the last minute.
This is an appeal by Unite (the Union) with leave of this court against the order of McCombe J dated 17 May 2010 granting British Airways Plc (BA) an interim injunction restraining the Union from taking industrial action against BA in reliance on a ballot conducted between 25 January and 22 February 2010. It arises from an industrial dispute with which most members of the public will be familiar. The rights and wrongs of this dispute and the merits and demerits of the proposed industrial action do not arise for consideration in this appeal. Indeed, we are obliged wholly to ignore and to refrain from any comment on them.
The industrial action by members of the Union, who are cabin crew employed by BA, was due to start on 18 May. If pursued, the action would have involved four periods of strikes over discontinuous dates between 18 May and 9 June, with consequent huge losses to BA estimated conservatively at £138 million and severe disruption and inconvenience to its many passengers.
The grounds upon which BA sought the injunction were that the Union had induced and was inducing its employees to break their contracts with BA by taking unlawful industrial action. It was asserted that the Union was inducing, procuring or persuading employees of BA, and in particular employed by BA in the categories of cabin crew, to break their contracts of employment by strike or other industrial action, or otherwise failing and/or refusing to cooperate with BA in ensuring the full and unimpeded operation of BA's business, in reliance upon a ballot conducted between 25 January 2010 and 22 February 2010.
The basis of the claim was that the statutory protection granted to the Union by section 219 of the Trade Union and Labour Relations Consolidation Act 1992 (the 1992 Act) depended upon compliance by the Union with a number of distinct statutory conditions to be found in Part V of the Act, one of which it was contended was unfulfilled. Accordingly the statutory protection was forfeited.
The problem to which these proceedings give rise is readily identified. The ballot itself was carried out impeccably in accordance with the statutory requirements. 11,691 ballot papers were distributed to eligible voters. The process was scrutinised by an independent body, Electoral Reform Services. 9,282 ballot papers were returned, representing a turnout of 79.39 per cent. 11 of the ballots were spoiled. 7,482 votes were cast in favour of industrial action with 1,789 cast against. In short, the vote in favour of strike action was overwhelming.
There is, therefore, no doubt that as a result of a properly conducted democratic process, the eligible members of the Union supported the call for industrial action and that they were willing to face all the inevitable consequences of such action.
The judge nevertheless granted BA the restraining order it was seeking. His approach was governed by section 221(2) of the Act, which requires the court considering an application for an interlocutory injunction against a trade union in the context of actions said to be taken “in contemplation or furtherance of a trade dispute” to exercise its discretion:
“… whether or not to grant the injunction, having 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) …”
The judge expressed his sympathy with the Union and the members who had voted in support of industrial action, and added that: “to be entitled to protection from the consequences of otherwise unlawful conduct, it is necessary to demonstrate that the conditions of that statutory protection are satisfied.”
He was unable to say that it was sufficiently clear, “… that the Union took the steps required by law at the time when they were required so as to outweigh other factors” in favour of granting the injunction sought by BA.
It is, perhaps, hardly necessary for us to emphasise that McCombe J's decision was not based on a judicial whim. He was bound, as we are bound, not by the democratic process conducted by the Union, but by the Act of Parliament which governs the right of employees to strike and to take industrial action against their employers.
Before addressing the statutory provisions and the issues which arise in this appeal, I must caution against this judgment being read for what it is not. It is not a final judgment in the litigation. It is a judgment relating to an appeal against an interlocutory order providing one party with injunctive relief against the other. The observations which follow must be seen in that context, but it will make for very poor reading and very poor listening if I say, on every occasion when it is appropriate to do so, that “so-and-so is arguable, or “it is arguable that”. The judgment must be examined in that context.
Most of the relevant statutory provisions are clear. Section 219 of the Act provides protection against possible tort liabilities arising from actions carried out in contemplation or furtherance of a trade dispute. The protection depends on support by a ballot for industrial action and it can only be regarded as having such support if, in accordance with section 226(2)(a), “the Union has held a ballot in respect of the action: (i) ………….., (ii) in relation to which the requirements of section 227-231 were satisfied, and (iii) in which the majority voting in the ballot answered “yes” to the question…….?
As we have indicated, the third condition was fulfilled. The only question is whether the requirements of section 231 were satisfied. This section is not concerned with any of the steps taken before or during the ballot: it is limited to the provision of information about the result of the ballot. It provides:
“As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of:
“(a) votes cast in the ballot.
“(b) individuals answering ‘yes’ to the question …
“(c) individuals answering ‘no’ to the question …
“(d) spoiled voting papers.”
17. Provision is also made requiring the Union to inform the employer whose interests would be affected by the ballot of the results. In slightly different terms section 231A provides:
“As soon as reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that every relevant employer is informed of [precisely the same matters as those to be provided to all those individuals who are entitled to vote].”
The Union complied with the requirement in section 231A and notified BA of the ballot result in accordance with the statute. The contention is that there was a failure to comply with section 231, that is to provide appropriate information to the relevant union's constituents.
As already noted, section 231 is directed to events which follow a properly conducted ballot and the interests protected by section 231 appear to be the interests of the Union members, not the interests of the employers.
The members are entitled to be informed about four specific features of the ballot. That information must be provided by the Union. I cannot, however, refrain from observing that there is a certain irony that it is the employers in this case whose application is based on an asserted non-compliance by the Union with steps created in the interests of the members, when the employers know perfectly well that an overwhelming majority of the members wish to take strike action and that the object of these proceedings is to restrain them from doing so. Nevertheless, in my judgment, the statutory provisions appear to be in wide enough terms to enable BA to take proceedings on this basis, and the contrary has not been argued.
That said, it is the Union, not the employers, which must make broad judgments about how to achieve compliance with its section 231 obligations in the overall factual context in which the issue comes to be addressed. And thereafter it is for the court, not the Union, nor the employers, to make an objective evaluation of the steps taken and the process by which the Union has sought to comply with its obligations and to decide whether or not it has done so and, in the context of an interlocutory...
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