Govia Thameslink Railway Ltd v The Associated Society of Locomotive Engineers and Firemen
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 02 June 2016 |
| Neutral Citation | [2016] EWHC 1320 (QB) |
| Docket Number | Case No: HQ16X01325 |
| Court | Queen's Bench Division |
| Date | 02 June 2016 |
2016 EWHC 1320 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: HQ16X01325
Mr J Cavanagh QC and Mr J Milford (instructed by Eversheds) for the Claimant
Mr J Hendy QC and Mr S Brittenden (instructed by Thompsons) for the Defendant
Hearing date: 24 May 2016
Mr Justice Supperstone
Introduction
GTR, a train operating company, applies for an interim injunction to restrain ASLEF, the train drivers' union, from inducing train drivers who are employed by GTR on the Gatwick Express and Southern Services to breach their contracts of employment by taking part in industrial action consisting of strike action or action short of a strike.
On 22 April 2016 Langstaff J granted an injunction against ASLEF in the following terms (together with specified requirements, which ASLEF complied with, to notify its members of the position):
"Until trial or further order or lawfully within the scope of sections 219–244 of TULRCA [that is the Trade Union Labour Relations (Consolidation) Act 1992], the Defendant must not whether by itself, its servants or agents, direct or indirectly, and by any means whatsoever, instruct, induce or encourage the Defendant's members who are drivers employed by the Claimant and who are required to drive on the Gatwick Express train service not to drive and operate twelve-car trains on a Driver Only Operation [passenger] ('DOO[P]') basis, when instructed to do so."
The parties agreed that there would be a speedy trial and a speedy trial has been listed for a three-day window beginning 27 June, with a time estimate of 4–5 days.
ASLEF applied to Langstaff J for permission to appeal against the injunction but permission was refused. An application for permission to appeal to the Court of Appeal was refused on 25 May by Christopher Clark LJ.
At the time of the hearing before Langstaff J ASLEF had not conducted a ballot for industrial action, but it was known that the union was intending to hold an industrial action ballot on the twelve-car DOO issue.
On 28 April Mr Whelan, ASLEF's General Secretary, wrote to Mr Evans, head of Employee Relations at GTR, giving notice of ASLEF's intention to conduct an industrial action ballot. The letter stated:
"Trade dispute. We are in dispute with you concerning the extension of Driver Only Operation (Passenger) without the agreement of ASLEF and contrary to our established procedures and all other matters arising out of and in consequence of the dispute."
The letter went on to specify the categories of members to be balloted as well as their depots. The ballot paper reiterated the nature of the dispute in the following terms:
"Trade dispute between ASLEF and GTR Southern/Gatwick Express concerning the extension of Driver Only Operation (Passenger) without the agreement of ASLEF and contrary to our established procedures and all other matters arising out of and in consequence of the dispute."
On 23 May, ASLEF members balloted voted in favour of industrial action.
The Statutory Framework
Section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) provides, so far as is material:
"(1) Where proceedings in tort are brought against a trade union—
(a) on the ground that an act
(i) induces another person to break a contract or interferes or induces another person to interfere with its performance, or
(ii) consists in threatening that a contract (whether one to which the union is a party or not) will be broken or its performance interfered with, or that the union will induce another person to break a contract or interfere with its performance…
then for the purposes of determining in those proceedings whether the union is liable in respect of the act in question, that act should be taken to have been done by the union if, but only it, it is to be taken to have been authorised or endorsed by the trade union in accordance with the following provisions.
(2) An act shall be taken to have been authorised or endorsed by a trade union if it was done, or was authorised or endorsed—
(b) by the principal executive committee or the president or general secretary."
Section 219 provides a union with statutory protection from certain tort liabilities if various conditions are satisfied. Sections 219(1) and (4) provide that an act done by a person in contemplation or furtherance of a trade dispute is not actionable on the ground that it induces another person to break a contract, or consists of threatening to induce another person to break a contract, provided that the conditions relating to balloting and notification laid down in TURLCA are met.
Section 226 provides that:
"(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action
(a) is not protected unless the industrial action has the support of a ballot…
(2) Industrial action shall be regarded as having the support of a ballot only if—
(a) the union has held a ballot in respect of the action
(ii) in relation to which the requirements of sections 227 to 231 were satisfied, and
(c) the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.
(4) For the purposes of this section an inducement, in relation to a person, includes an inducement which is or would be ineffective, whether because of his unwillingness to be influenced by it or for any other reason."
Section 227 provides
"(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 may be, to continue to take part in the industrial action in question, and to no others."
Section 228 provides for separate workplace ballots. Section 228(1) provides "Subject to sub-section (2), this section applies if the members entitled to vote in a ballot by virtue of section 227 do not all have the same workplace".
Section 228(3)(b) provides that subject to section 228A, a separate ballot shall be held for each workplace; and entitlement to vote in each ballot shall be accorded equally to, and restricted to, members of the union who have that workplace.
Section 228A allows for aggregate ballots in certain circumstances. Section 228A(1) provides that where section 228(3) would require separate ballots to be held for each workplace, a ballot may be held in place of some or all of the separate ballots if one of sub-sections (2)-(4) is satisfied in relation to it. Sub-section (2) states that this sub-section is satisfied in relation to a ballot if the workplace of each member entitled to vote in the ballot is the workplace of at least one member of the union "who is affected by the dispute". Sub-section (3)(a) provides that this sub-section is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who according to the union's reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation. Sub-section (4) provides this sub-section is satisfied in relation to a ballot if entitlement to vote is accorded to, and limited to, all the members of the union who are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute. Sub-section (5)(a) provides that for the purposes of sub-section (2) members of the union affected by a dispute are, if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in, inter alia, sub-sections (1)(a)-(c) of section 244 (meaning of "trade dispute"), members whom the decision directly affects.
Sub-section (1)(a) of s.244 concerns terms and conditions of employment, or the physical conditions in which any workers are required to work; sub-section (1)(c) concerns allocation of work or the duties of employment between workers or groups of workers.
Statutory protection is also subject to section 233. Section 233(1) provides that industrial action shall not be regarded as having the support of a ballot unless it is called by a specified person and certain conditions are satisfied. Sub-section (3)(a) provides that "there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot". Sub-section (3)(b) provides that there must be a call for industrial action by a specified person, and industrial action to which it relates must begin, before the ballot ceases to be effective in accordance with section 234.
Section 221(2)(a) provides that where an application for an interlocutory injunction is made to a court pending the trial of the action, and the party against whom the application is made 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 succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219. In London and Birmingham Railway Ltd v ASLEF (known as the SERCO case) [2011] ICR 848, Elias LJ (at para...
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