London Underground Ltd v The Associated Society of Locomotive Engineers and Firemen
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eder |
| Judgment Date | 22 December 2011 |
| Neutral Citation | [2011] EWHC 3506 (QB) |
| Date | 22 December 2011 |
| Docket Number | Case No: IHQ/11/0903 |
| Court | Queen's Bench Division |
[2011] EWHC 3506 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eder
Case No: IHQ/11/0903
Mr Bruce Carr QC and Mr Paul Gott (instructed by Eversheds) for the Claimant
Mr Oliver Segal QC and Mr Ben Cooper (instructed by Thompsons) for the Defendant
Hearing dates: 21 and 22 December 2011
Revised Approved Judgment
Introduction
The Claimant seeks an urgent interim injunction to restrain the Defendant from calling industrial action on Boxing Day ie 26 December 2011 based on the result of a ballot which closed on 14 December 2011 on the basis that:
a. Issue 1
Contrary to the provisions of section 227 Trade Union and Labour Relations (Consolidation) Act 1992 (the "Act"), entitlement to vote in the ballot was extended to persons whom the Defendant could not reasonably have believed would be called upon to take part in the industrial action. In short, the Claimant submits that the Defendant included in the balloting constituency a significant majority of its members who could not in due course be called on to take strike action on 26 December 2011 as they were not rostered to work on that day. Such persons fell into two main categories viz. (i) those working from depots which are open on Boxing Day but who are not actually rostered to attend for work; and (ii) those working at depots which are closed on Boxing Day (with the effect that none of the drivers based at such depots will be expected to attend for work). [An additional category consists of those on long-term sick or maternity leave. However, this category was relatively small and, as the Claimant conceded, can be ignored for present purposes.]
b. Issue 2
The Scrutineer failed in its duties, contrary to the provisions of sections 226B(1) and 231B of the Act; and contrary to s226B(3) of the Act the Defendant failed to ensure that the Scrutineer carried out the functions conferred on it.
The matter came on urgently before the Court and I heard argument at very short notice on 21 and 22 December 2011. Given the urgency and with the agreement of both parties, I indicated my decision following argument at the end of the hearing on the morning of 22 December 2011 ie I refused to grant the injunction. This Judgment sets out my reasons for that decision. Given the limited time, I will limit this Judgment to what I consider to be the main issues.
Background facts
The current proposed industrial action relates to a dispute over payments to drivers for working on Boxing Day. The first round of strike action took place last year on Boxing Day 2010. No further dates were called despite the Defendant having made reference to that possibility in its section 234A notice served on 14 December 2010.
On 16 November 2011, the Defendant issued to the Claimant a notice under section 226A of the Act stating that its members were to be balloted on the "Boxing Day working dispute" and that those to be balloted were "All Train Operator and Instructor Operator members of ASLEF employed by you and paying their membership subscriptions by check off at [the listed depots]" as well as a further 789 members at listed workplaces who paid their subscriptions by direct debit. By the Claimant's calculations, this would amount to approximately 1950 voters in total.
On 14 December 2011, the Defendant sent to the Claimant notice of the ballot result as it is required to do under section 231A of the Act. This recorded that 998 people had voted and that 920 of them had voted in favour of strike action. The Defendant provided notice of the result to the Claimant by forwarding to it a copy of a letter from the Scrutineer which (a) set out the statutory information as to the numbers voting in the ballot and (b) purported to include the Scrutineer's report compiled pursuant to its obligation under section 231B of the Act. However, the Claimant submitted that the number of those voting in the ballot was approximately double the number that could potentially take part in the action, as only about 480 ASLEF members are scheduled to work on Boxing Day
In the run-up to the 2011 Ballot, the Defendant had communicated with its members as it is expected to do in accordance with paragraph 36 Code of Practice: Industrial Action Ballots and Notice to Employers (the "COP"), which paragraph provides as follows:
"A union should give relevant information to its members entitled to vote in the ballot, including (as far as is practicable):
•The background to the ballot and the issues to which the dispute relates;
•The nature and timing of the industrial action the union proposes to organise if a majority vote "Yes"
•………………
In doing so, the union should ensure that any information it gives to members in connection with the dispute is accurate and not misleading." (emphasis added)
Mr Carr QC submitted that the information which the Defendant gave to its members was very clear as to the nature and timing of the proposed industrial action. In particular, on 14 November 2011, the Defendant posted on its website a clear statement to the effect that the ballot which was to take place shortly thereafter was one in which members would be asked to vote in favour of "industrial action on Boxing day". Information in identical terms was contained in the "ASLEF Locomotive Journal" for December 2011 – this publication, which is sent by post to all ASLEF members each month, is described on the Defendant's website as follows:
"The Journal keeps our members up to date on key issues within the rail industry as well as the trade union movement."
That this was the understanding of those who were actually being asked to vote is reflected, submitted Mr Carr QC, in certain materials put in evidence by the Claimant in which certain members of the Defendant have expressed a view on the issue. In particular:
i) 9 December 2011 – a blogger responsible for the blog "ASLEF shrugged" recording his reticence to vote in a ballot which did not affect him as he was not due to be working on the day of the strike.
ii) 14 December 2011 – A London Underground driver, Brett Johnson recorded on the Defendant's Facebook page that members were "angry that they have been misled with the boxing day ballot. They say you have put additional strike days about the issue which was not made clear in the original ballot" Another driver, "Kev Parrot" concurs with the view expressed. (It appears that both these individuals are ASLEF members.)
The reference in the Brett Johnson posting to "additional strike days about the issue" arises in the following circumstances:
i) On 12 December 2011, the Claimant wrote to the Independent Scrutineer (Electoral Reform Services Limited) ("ERSL") (copied to the Defendant) raising its concerns about the way in which the right to vote had been extended to members who would not be working on Boxing Day and therefore would not be participating in the proposed strike action;
ii) On 13 December 2012, the Defendant wrote to ERSL in response to the Claimant's letter of 12 December, stating that "It is for ASLEF Executive Committee to determine what action if any will be called in the light of the ballot outcome. The Executive Committee [of the Defendant] have not yet determined the action." Mr Carr QC submitted that this suggestion appears wholly at odds with what had been communicated to members prior to the ballot opening which was clearly and unequivocally that in the event of a 'yes' vote, they would be called on to take strike action on Boxing Day;
iii) On 14 December 2011, the Defendant issued a notice to "All Branches and Representatives" stating that the Executive Committee had resolved to call for strike action on 3 additional days in 2012 – 16 January and 3 and 13 February.
iv) On 16 December 2011 notice was issued by the Defendant to the Claimant under section 234A giving the same 3 additional dates for strike action.
The criteria for granting an injunction
It is common ground that the test for the grant of an interlocutory injunction in the present case is not the normal American Cyanamid test, but rather whether it is likely that the Defendant will establish a defence under Part V of the Act.
Pursuant to s. 221 of the Act, where the s. 219 defence is raised in response to an application for an interlocutory injunction, the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that defence succeeding at trial. If it is held that the Defendant's call for strike action on 26 December is likely to be protected by s. 219, the strike must be allowed to proceed. Conversely, if it is held that the action is unlikely to be protected, it is common ground that the balance of convenience in strike cases generally favours the grant of an interim injunction. See: British Airways plc v Unite the Union (No. 2) [2010] ICR 1316, CA, paras 108–109 per Smith LJ.
In construing and applying the provisions of the 1992 Act, regard must be had to the importance of union members having an "effective right to withhold their labour" and to the fact that these provisions "are not designed to prevent unions from organising strikes, or even to make it so difficult that it will be impracticable for them to do so" ( BA v Unite (No. 2), paras 109, 113, 153 per Smith LJ). There is no presumption that the immunity from common law liability provided to trade unions is to be narrowly construed ( RMT v Serco Ltd; ASLEF v London Midland [2011] ICR 848, CA, para 9 per Elias LJ).
For these reasons, it is important to emphasise that in considering the present application for an injunction the court is not concerned with the merits of the underlying...
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