British Airways v Unite the Union Plc
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE COX,MR JUSTICE McCOMBE |
| Judgment Date | 17 May 2010 |
| Neutral Citation | [2010] EWHC 1210 (QB),[2009] EWHC 3541 (QB) |
| Date | 17 May 2010 |
| Docket Number | 1HQ/09/1126 |
| Court | Queen's Bench Division |
[2009] EWHC 3541 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mrs Justice Cox
1HQ/09/1126
MR CARR QC and MR GOTT appeared on behalf of the Claimant.
MR HENDY QC and MR PILGERSTORFER appeared on behalf of the Defendant.
: For the reasons which I am about to give, and to assist everyone at the outset, I have decided that BA is entitled to the relief sought and I therefore grant the application for an interim injunction.
The claimant, BA, is the largest airline in the UK based on fleet size, international flights and international destinations. The defendant trade union, Unite the Union (UNITE), is the sole representative of cabin crew who work on BA's fleets at Heathrow and Gatwick Airports. These fleets comprise the Worldwide Fleet and Eurofleet at Heathrow, for long and short haul flights respectively, and the Single Fleet at Gatwick covering both long and short haul flights. All the cabin crew employees relevant to this application are members of UNITE.
UNITE is currently involved in a trade dispute with BA over a number of matters which affect the working lives of its members. At the heart of the application before me is BA's decision to reduce the crew complements on aircraft operated by the Heathrow fleets, which UNITE contends is unlawful.
On 6 th November 2009 UNITE gave notice to BA of its intention to ballot cabin crew employees on all the fleets at Heathrow and Gatwick on industrial action. The ballot was opened on 16 th November and closed on 14 th December 2009, on which date UNITE notified BA of the result, which was overwhelmingly in favour of strike action. The evidence shows that only two ballot papers were spoiled, leaving a valid vote of 10,286 employees, of which 9,514 (that is 92.49% of those voting, on a turnout of 80%) were in favour of strike action. At the same time UNITE gave notice of a 12-day strike by cabin crew, to commence on 22 nd December and end on 2 nd January 2010.
BA now applies to this court for an interim injunction, to restrain the union from proceeding with the strike. The application is made on the basis that UNITE has failed to comply with the requirements of Part V of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended (“the Act”), and that, consequently, industrial action called pursuant to the ballot would be unlawful. In essence, BA alleges that UNITE (a) erroneously included in the ballot notification, and then (b) erroneously balloted, several hundred of its members who it knew would not be involved in the proposed strike action, because they would not still be employed by BA at the time the strike was called. This applies, in particular, to a large number of employees who took voluntary redundancy in November and December 2009. BA further alleges that the union then erroneously included the same members, or at any rate a large number of them, in the strike notification to BA.
Consequently, it is said, UNITE's statutory immunity from suit under the Act has been lost, as a result of their failure to comply with the statutory balloting requirements, and any strike action called would be unlawful. BA now seeks an interim injunction, as a matter of urgency, in order to prevent the considerable and unquantifiable damage that it is said will arise from the proposed unlawful strike.
UNITE accepts that many of those who took voluntary redundancy were in fact included in the ballot notice, the balloting process and the notice of industrial action, in the numbers which have been identified by BA in the evidence placed before me. The union says, however, that it did its very best to exclude, and did exclude, all those leaving on voluntary redundancy (“VRs”) of whom it was aware, and that it therefore did all that was reasonably practicable in the circumstances, in order to comply with the multiple obligations contained in complex legislation. Further, it is said on the union's behalf that its attempt to discover more information, to enable it to comply with the relevant statutory requirements, was thwarted by a lack of cooperation or by intransigence from BA. UNITE therefore relies on the statutory “defences” which are available to the union, namely that the information provided in the ballot and strike notices was as accurate as was reasonably practicable; and that any failure in relation to the ballot itself was accidental and had no effect on the result of the ballot.
This hearing began yesterday afternoon, and overnight there was a flurry of further witness statements produced, with exhibits attached. The statements now before me are from Karen Slinger (Manager of Resource Planning) and Geoffrey Ayres (Business Manager) for BA, and Stephen Turner (National Secretary, Civil Air Transport), Blair Veakins (Overall Convenor for CC89 Amicus section) and Adam Marley (local representative and cabin crew member) for UNITE. I have now read all the statements and exhibits produced on both sides.
The Relevant Statutory Framework
At this point I shall refer to the statutory provisions which govern trade union calls for industrial action. I shall not set them all out in full, but all the provisions referred to should be read into this judgment.
It is common ground that section 219(1) of the 1992 Act protects a trade union from liability in tort in relation to actions based on, amongst other matters, the inducement of another to break his or her contract. That immunity, however, is subject to section 219(4), the effect of which is that a trade union's immunity is lost if there is a failure to comply with the statutory requirements relating to balloting and the notice of industrial action given to an employer.
The requirement for a ballot before industrial action is contained in section 226(1). There are further requirements which the union has to meet to enable it to show that the industrial action proposed has the support of a ballot. These include those set out at section 226(2)(a)(ii). The effect of these provisions is that the obligations under sections 226A and 227 must be complied with if the trade union is to be protected from liability pursuant to section 219.
Section 226A requires the union to provide the employer with notice of the ballot not later than the seventh day before the opening day of the ballot. That notice, of the union's intention to hold a ballot, must contain the information and be in the form prescribed in section 226A(2). It must be in writing. It must specify the date which the union reasonably believes will be the opening day of the ballot. It must provide the employer with lists of the categories and workplaces of the employees concerned, as well as figures which identify “the total number of employees concerned.”
There is no dispute that there are three ways in which “the total number of employees concerned” can be identified, which I summarise as follows. Firstly, where members of the union pay their subscriptions by means of the employer's check-off system for making deductions, the union can supply either numbers, categories and workplaces, or the information set out in section 226(2C), namely “such information as will enable the employer to deduce” the total number of employees concerned and their categories and workplaces. Secondly, for those members who do not use the check-off system, the obligation is found under section 226A(2B), pursuant to which the union must provide numbers, categories and workplaces. Thirdly, where there is a mixture of check-off and non check-off members, the union can use a combination of both forms of information. That was the route used by UNITE in the present case.
Section 226A (2D) provides what Mr Carr QC, appearing for BA, referred to as a “get out of jail free card”, or “escape clause” for a trade union, as follows:
“The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (i)(a).”
However, the obligation in respect of the number of employees concerned attaches, under section 226A(2H) to “…those employees of the employer in question who the union reasonably believes will be entitled to vote in the ballot.” Entitlement to vote in the ballot is governed by section 227, which provides in sub-section (1):
“Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part or, as the case my be, to continue to take part in the industrial action in question, and to no others.”
BA's case essentially is that, as UNITE well knew, a substantial number of its members who were employed by BA at the time of the ballot would no longer be employed at the time of strike action, because they had accepted voluntary redundancy and would have left their employment. There could not, therefore, be any question of inducing these members to breach their contracts and participate in strike action, since their contracts would already have come to an end. This error, it is said, was then compounded by the inclusion of these leavers in the notice of industrial action given to BA by UNITE on 14 th December 2009, pursuant to section 234A.
The requirement in section 234A largely mirrors that found in...
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