East Midlands Trains Ltd v National Union of Rail, Maritime and Transport Workers
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Jackson,Lord Justice Tomlinson |
| Judgment Date | 15 August 2013 |
| Neutral Citation | [2013] EWCA Civ 1072 |
| Date | 15 August 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2013/2177/QBENF & A2/2013/2177(A)/FC3 |
[2013] EWCA Civ 1072
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Lewis
1HQ/13/0541
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Jackson
and
Lord Justice Tomlinson
Case No: A2/2013/2177/QBENF & A2/2013/2177(A)/FC3
Robin Allen QC and Jason Galbraith-Marten (instructed by Kennedys Law LLP) for the Claimant
John Hendy QC and Ms Ijeoma Omambala and (15 August only) Christopher Edwards (instructed by Thompsons Solicitors) for the Defendant
Hearing date: 13 August 2013
Approved Judgment
1. This is an appeal against the judgment of Lewis J dated 31 July 2013 refusing the application of East Midlands Trains Ltd (“EMT”) to grant an injunction against the respondent Union (“RMT”) from committing what EMT alleges to be the tort of inducing or procuring a breach of contract by asking EMT's senior conductors and train managers to refuse to work at a time when on EMT's case they are contractually bound to work. The appeal turns on the construction of terms of collective agreements incorporated into contracts of employment. The question is whether EMT was entitled, as a matter of contract, to require on board staff to work for the duration of the engineering works at Nottingham station in different ways from their normal work patterns.
2. A collective agreement is an agreement or arrangement made between an employer and a trade union. As in this case, it may cover hours of work and allocation of work. It will be legally binding on an employer and trade union if it is in writing and they have agreed that it should be binding on them.
3. A collective agreement, like other agreements, is to be interpreted in the light of the factual background against which it was made. In this case, that background may conveniently be identified at the same time as explaining how the dispute between the parties has arisen.
Factual background to the collective agreements and nature of the dispute
4. The judge's succinct judgment sets out the basic facts:
“2. …East Midlands Trains is a company providing the rail services between cities in the East Midlands and London and also providing certain local services within the East Midlands area. East Midlands Trains Limited was formed from the old Midlands mainline company, which runs the intercity services to London and part of Central Trains, which runs the local services.
3. East Midlands Trains have contracts of employment with their senior conductors and train managers and with other staff employed to work on their trains. They have roster arrangements in place determining the days and hours when the staff are to work. Those roster arrangements describe the starting and finishing hours of each shift.
4. Major planned engineering works are being undertaken in and around Nottingham. They began on 20 th July 2013 and they will continue until 25 th August 2013. As a result, trains cannot go into and out of Nottingham Railway Station. Alternative arrangements have been made. However, that has caused East Midlands Trains to want to bring about changes in the roster arrangements for its senior conductors, train managers and other staff employed to work on trains excluding the drivers. The changes are, in effect, a change in the start and finish times of a shift, but there is no increase in the length of a shift.
5. A dispute has arisen about whether or not East Midlands Trains can require the on-train staff to work rosters with these changes, involving as they do, different starting times for some of the shifts. The Union opposed the making of those changes without agreement.
6. The Union held a ballot asking the relevant staff if they were prepared to take industrial action short of a strike. Of the 533 Union members entitled to vote, 288 did vote, 245 did not vote. Of the 288 employees who did cast a vote, 190 employees said they were in favour of taking part in industrial action short of a strike. Accordingly, on 12 th July 2013 the General Secretary of the Union wrote to East Midlands Trains informing them that from 00.01 hours on Saturday, 20 th July 2013 until further notice, members would be instructed: (1) not to work any overtime; (2) not to work any rest days; (3) not to perform any additional duties outside their job description in terms of conditions of employment; (4) when rostered on spare turns only to work turns or duties within the parameters laid down in their terms and conditions of employment; (5) only to work agreed rostered hours and rostered turns of duty only. As will become clear, it is points (4) and (5) of that instruction which has proved contentious.”
5. I add the following:
• The track on which EMT operates rail services is owned by Network Rail (“NR”).
• EMT is the holder of a franchise granted by the Department of Transport. The terms of its franchise require it to meet certain obligations about services. As is well known, rail franchise holders are expected to meet obligations imposed for public benefit as to quality of its services.
• The timetabling of trains has to be agreed with NR.
• It was NR's decision to close Nottingham station for major planned engineering works. This closure has been called the “Engineering Blockade”. EMT operates mainline and other trains from this station.
• To meet the problem created by the Engineering Blockade, EMT's trains are running to other stations, such as East Midlands Parkway. Bus services have been substituted for passengers seeking to travel from Nottingham station.
• EMT took the view that changes had to be made to the work schedules of its staff on board trains (“on board staff”).
• It has always been important for on board staff to have certainty about their hours of work and turn of duty. The work patterns of the senior conductors are different each week. Great weight is to be attached to the work allocation being fixed well in advance of the day on which the work to be performed.
6. EMT informs us:
• That it sought RMT's agreement to changes in work patterns, but, for reasons which go beyond the issues we have to decide, agreement was not achieved.
• The dispute before us has caused considerable disruption. Over 1,000 minutes of delayed trains and 51 train cancellations. On 246 different occasions, managerial staff had to be deployed with consequent effect on their work.
• Its resources are stretched.
• Passengers are often inconvenienced, particularly those wishing to take trains in order to connect with air services.
What do the staff contracts provide about allocation of work?
7. The parties agree that the relevant staff have contracts which incorporate the terms of collective agreements with RMT dealing with employment matters. The staff have slightly different contracts according to whether they were employed by EMT's predecessor, Central Trains, or were first employed by EMT.
8. The contracts of the on board staff previously employed by Central Trains contain the following clauses or (so far as material) clauses to the following effect:
“6. The days of the week on which you may be required to work, and the number of working hours within each working day, may vary or be changed periodically, depending on the particular requirements of your post…
15. Your contract of employment is subject to such terms and conditions as may be settled from time to time in relation to employees of Central Trains. In the event of any conflict between this contract document and any trade union agreements, this document will prevail.”
9. The terms of employment of new staff employed for the first time by EMT have clauses to the same effect save that they do not state which document is to prevail if there is a conflict with the terms of any collective agreement.
10. Two collective agreements have been made:
• The Conductor's Restructuring Initiative (“CRI”) for on board staff on local trains.
• The Mainline Services Collective Agreement (“the Mainline CA”) for on board staff on intercity services.
11. The CRI is composed of three parts, the third being a rostering agreement.
12. These two collective agreements use the expressions “diagram”, “link” and “roster”. Mr John Hendy QC, appearing, with Ms Ijeoma Omambala for RMT, helpfully summarized the evidence of Mr Graham Cross on behalf of RMT as to the meaning of these concepts as follows:
a) A “diagram” is a set of specific journeys for specific trains which together compose a day's work for a member of staff. A member of staff must be allocated to a diagram.
b) A “link” shows for each grade and each base each individual's daily work plan. It accommodates all the diagrams of train movements from that base. Each member of staff knows for weeks ahead what his work timetable will be. The timetable is continually rotating. In this way route and traction knowledge are kept up to date, which is safety critical.
c) A “roster” is a set of links for the grade. The links constitute the base roster. A roster is established by negotiation with RMT. If no agreement is reached, the member of staff is bound by custom and practice to work according to the last agreed schedule.
13. The key provisions of the collective agreements are as follows:
CRI
“1. Construction of links
1.1 General Principles
Links shall be constructed at each depot and agreed jointly with LLCs [Local Level Councils] to ensure compliance with the retention of route and traction knowledge at the depot, and be designed...
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