Metrobus Ltd v Unite the Union
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Maurice Kay,The President of the Family Division |
| Judgment Date | 31 July 2009 |
| Neutral Citation | [2009] EWCA Civ 829 |
| Docket Number | Case No: A2 2008/3018 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2009 |
[2009] EWCA Civ 829
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice King
QUEEN'S BENCH DIVISION
The President of the Family Division
Lord Justice Maurice Kay and
Lord Justice Lloyd
Case No: A2 2008/3018
HQ08x03948
John Hendy Q.C. and Simon Gorton (instructed by EAD solicitors LLP) for the Appellant
Charles Béar Q.C. and Paul Gott (instructed by Bircham Dyson Bell LLP)
for the Respondent
Hearing dates: 1 and 2 July 2009
This appeal is against an order of Mr Justice King made on 9 October 2008, by which he granted an interim injunction restraining the Defendant trade union (to which I will refer as UNITE) from calling a strike. The point of the appeal is not as to whether that strike should go ahead; there is no question of that. However, UNITE takes the view that the grounds on which the judge decided to grant the injunction constitute a serious impediment on its ability and that of any other trade union to call a strike. On that basis permission to appeal was granted by Sedley LJ on the main two grounds of appeal. He adjourned to the full hearing the application for permission to appeal in respect of a third ground, going to the judge's exercise of his discretion. Since then the ambit of the appeal has been widened by an amendment to the grounds of appeal to bring in article 11 of the ECHR. As a result we have been shown decisions of the European Court of Human Rights about article 11, one as recent as April this year, and also texts and materials from the International Labour Organisation, the European Social Charter, and other international bodies. We have also granted permission to UNITE to adduce evidence which was not before the judge because of the very short notice given of the application before him.
The facts in outline
UNITE represented bus drivers working for a number of different bus companies in and around London. It sought to improve the pay and conditions of all of them to a uniform level. To that end, it submitted a claim for improved terms to the Claimant, Metrobus, in 2008. Dissatisfied with Metrobus' response, on 8 August 2008 UNITE gave notice to Metrobus that it intended to hold a ballot for industrial action. The notice was given by a letter from Mr John Griffiths, who was the relevant Regional Industrial Organiser for UNITE, based at the union's Dagenham office, to Mr Alan Eatwell, Managing Director of Metrobus. That letter gives rise to the first of the points that we have to decide.
The ballot was held between 18 August and 1 September 2008. On 3 September Mr Griffiths wrote again to Mr Eatwell, informing him of the result of the ballot, enclosing the scrutineers' report (which showed a 90% vote in favour of action), and giving notice of industrial action to take place for 24 hours from 3am on Friday 12 September. Mr Griffiths' letter of 3 September gives rise to the other two main points that we have to consider.
The strike took place. However, Metrobus still proved intractable, from UNITE's point of view, and on 2 October 2008 Mr Griffiths wrote again to Mr Eatwell giving notice of a further strike, for 24 hours from 3am on Friday 10 October. On 3 October 2008 Mr Eatwell replied to that letter, as well as (in terms) to the earlier letters dated 8 August and 3 September. He said he had taken legal advice, and his long letter (9 pages) set out a number of legal issues about the ballot and the past and proposed strikes. He asked for confirmation by return that UNITE would not call any further action in reliance on the ballot and that the latest strike notice would be withdrawn. He asked to hear from Mr Griffiths as a matter of urgency, though he did not threaten proceedings as such. He copied his letter to Mr Tony Woodley, General Secretary of UNITE.
On 6 October Mr Griffiths acknowledged the letter by email and said he hoped to be able to respond by the next day. In fact he did not do so until 8 October, when he sought to meet each of the points which had been made. On the same day Mr Eatwell wrote again, to tell Mr Griffiths that Metrobus intended to apply to the High Court for an injunction, hoping to serve evidence later that day for a hearing the next day.
That is what happened. The judge heard the application on 9 October, on evidence consisting of a witness statement of Mr Eatwell to which he exhibited the documents to which I have referred, among others. Inevitably there was no evidence from UNITE, though the judge was told certain matters by Counsel on instructions.
In an admirably clear judgment delivered at once, the judge rejected a number of the grounds of complaint raised by Metrobus, but found that there were fatal defects in the notice of the ballot, in the two strike notices, and in the failure of UNITE to notify Metrobus sufficiently promptly of the result of the ballot. He rejected a point made for UNITE that Metrobus should be denied relief because of their delay in taking the points. He therefore granted the injunction, as a result of which the strike did not take place.
On the appeal, the primary question is whether he was right that there were the fatal defects which he identified. The secondary question, on which permission to appeal has not yet been granted, is whether he was right to exercise his discretion in the way he did. As I have said, he had to proceed without any evidence from UNITE, though with some information as to matters which would have been put in evidence. We have the advantage over him that we have seen evidence from UNITE.
The legislation
It is necessary to set out some of the relevant legislation, which is in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), though most of it represents amendments made to that Act since 1992. The starting point is section 219, by which trade unions are given conditional exemption from civil liability for the economic torts for which they would otherwise be liable by calling on members and others to break their contracts of employment by refusing to work. The section (omitting sub-sections (2) and (3) as not relevant for present purposes) is as follows:
“(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) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.
…
(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 judge held that UNITE's action was “not protected” because of failures to comply with the requirements laid down under section 226 and under section 234A. Section 226 is as follows:
“(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, and
(b) where section 226A falls to be complied with in relation to the person's employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.
In this section “the relevant time”, in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act.
(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—
(i) in relation to which the requirements of section 226B so far as applicable before and during the holding of the ballot were satisfied,
(ii) in relation to which the requirements of sections 227 to 231 were satisfied, and
(iii) in which the majority voting in the ballot answered “Yes” to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates;
(b) such of the requirements of the following sections as have fallen to be satisfied at the relevant time have been satisfied, namely—
(i) section 226B so far as applicable after the holding of the ballot, and
(ii) section 231B;
(bb) section 232A does not prevent the industrial action from being regarded as having the support of the ballot; and
(c) the requirements of section 233 (calling of industrial action with support of ballot) are satisfied.
Any reference in this subsection to a requirement of a provision which is disapplied or modified by section 232 has effect subject to that section.
(3) Where separate workplace ballots are held by virtue of section 228(1)—
(a) industrial action shall be regarded as having the support of a ballot if the conditions specified in subsection (2) are satisfied, and
(b) the trade union shall be taken to have complied with the requirements relating to a ballot imposed by section 226A if those requirements are complied with,
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