London Underground Ltd v The Associated Society of Locomotive Engineers and Firemen
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLROYDE,Mr Justice Holroyde |
| Judgment Date | 10 January 2011 |
| Neutral Citation | [2011] EWHC 7 (QB) |
| Docket Number | Case No: HQ10/X04901 |
| Court | Queen's Bench Division |
| Date | 10 January 2011 |
[2011] EWHC 7 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holroyde
Case No: HQ10/X04901
Mr Andrew Stafford QC & Mr Paul Gott (instructed by Bircham Dyson Bell LLP) for the Claimant
Mr Oliver Segal (instructed by Thompsons) for the Defendant
Hearing dates: 23 RD DECEMBER 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Holroyde :
The Claimant ("LUL") operates the London underground railway network. The majority of the persons whom it employs to operate (or drive) the underground trains are members of the Defendant union ("ASLEF"). A dispute arose between the parties as to the rates of pay for those working on Boxing Day 2010. As a result of a ballot taken between the 24 th November and 13 th December 2010 ("the ballot"), ASLEF intended that its members should strike on Boxing Day. On the morning of 23 rd December LUL issued proceedings against ASLEF claiming an injunction and damages as final relief. LUL also issued an application for an interim injunction restraining ASLEF from inducing, procuring or persuading LUL's employees to break their contracts of employment, and requiring ASLEF to take all reasonable steps to cancel any call for strike action on the 26 th December. I heard that application on the afternoon of 23 rd December. Despite the very limited time which had been available for preparation, the submissions of counsel on both sides were of the highest order, and were of great assistance to me. At the conclusion of the hearing I dismissed the application. It was then about 6pm, and it was not practicable to give my reasons at that stage. I indicated that I would do so in writing as soon as practicable. These are my written reasons.
Relevant law is as follows. An employee, who goes on strike, thereby showing a refusal to work, commits a breach of his contract of employment. In principle, a trade union which calls upon its members to strike induces them to act in breach of contract, and thereby commits a tort. However, the law has for a long time recognised legitimate industrial action by granting protection to a trade union which acts in accordance with statutory conditions. A trade union is immune from liability for the tort of inducing breach of contract if it (a) acts in furtherance of a trade dispute and (b) has complied with a number of statutory obligations. By virtue of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") those obligations include obligations as to the proper notification of certain matters to the employer.
In the present case, it was common ground that the relevant actions of ASLEF were carried out in furtherance of a trade dispute. Thus there was no dispute before me as to the first of those conditions. The issue between the parties related to the second. LUL's submission was that ASLEF had failed to give the necessary notice and that accordingly the proposed Boxing Day strike would be unlawful.
Before considering that submission in detail, I must refer to two other parts of the legal framework within which the hearing was conducted. Firstly, it was common ground that this was an application for an interim injunction, to which s221(2) of TULRCA applied:
"Where –
(a) an application for an interlocutory injunction is made to a court pending the trial of an action, and
(b) the party against whom it is sought 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's succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 …"
Secondly, in deciding whether LUL was entitled to an injunction, the court was not concerned with what might be referred to as the merits of the industrial dispute. LUL relied on a statement by Mr Howard Collins, its Chief Operating Officer, which set out very clearly the severe disruption of the underground service, and consequent severe inconvenience to passengers, which would inevitably result from a strike on one of the busiest days of the year. Understandably, Mr Segal did not seek on behalf of ASLEF to dispute that evidence. Nor did he seek to dispute LUL's submission that damages would not be an adequate remedy if ASLEF was unable to establish a defence. The focus of his argument was the submission that ASLEF was likely to establish a defence under s219, and that the application for an injunction should be refused for that reason. Implicit in his argument was the submission that if ASLEF would be likely to succeed in establishing its statutory immunity, those unhappy consequences for the travelling public must be regarded as the consequences of a lawful strike.
I turn now to the specific statutory provisions which were the focus of the submissions before me.
By s219 of TULRCA —
"(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only—
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or
(b) …
(2) An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination would not be actionable in tort.
(4) Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections "not protected" means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person."
The effect of section 226 of TULRCA is that an act done by a trade union to induce a person to take part in industrial action is not protected unless the industrial action has the support of a ballot, and the trade union has complied with section 226A in relation to that person's employer.
Section 226A then sets out the requirements as to the union providing the employer with advance notice of the ballot and a sample voting paper. So far as is material for present purposes, and with my emphasis added, it reads –
"(1) The trade union must take such steps as are reasonably necessary to ensure that—
(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and
(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (2F),
is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.
(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing—
(a) stating that the union intends to hold the ballot,
(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and
(c) containing–
(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or
(ii) where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (2C).
(2A) The lists are–
(a) a list of the categories of employee to which the employees concerned belong, and
(b) a list of the workplaces at which the employees concerned work.
(2B) The figures are–
(a) the total number of employees concerned,
(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and
(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).
(2C) The information referred to in subsection (2)(c)(ii) is such information as will enable the employer readily to deduce–
(a) the total number of employees concerned,
(b) the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and
(c) the workplaces at which the employees concerned work and the number of them who work at each of those workplaces.
(2D) 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 (1)(a).
(2E) For the purposes of subsection (2D) information is in the possession of the union if it is held, for union purposes–
(a) in a document, whether in electronic form or any other form, and
(b) in the possession or under the control of an officer or employee of the union.
(2F) The sample voting paper referred to in paragraph (b) of subsection (1) is–
(a) a sample of the form of voting paper which is to be sent to the employees concerned, or
(b) where the employees concerned are not all to be sent the same form of voting paper, a sample of each form of voting paper which is to be sent to any of them.
(2G) Nothing in this section requires a union to supply an...
To continue reading
Request your trial
-
Birmingham City Council v Unite the Union
...dispute or the balance of convenience between the parties or the convenience of the public: see London Underground Ltd v ASLEF [2012] IRLR 196 per Eder J at paragraphs 12–13: “12. In construing and applying the provisions of the 1992 Act, regard must be had to the importance of union member......
-
James Sedge (by His Mother and Litigation Friend Yolanda Skinner) v Christopher Prime
... ... Royal Courts of Justice Strand, London, WC2A 2LL ... John Leighton Williams ... programme, which is likely to be associated with gains, particularly in his ability to ... ...