P (A Minor) v National Association of School Masters/Union of Women Teachers
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,LORD BINGHAM OF CORNHILL,LORD HOBHOUSE OF WOODBOROUGH,LORD WALKER OF GESTINGTHORPE,LORD HOFFMANN |
| Judgment Date | 27 February 2003 |
| Neutral Citation | [2003] UKHL 8 |
| Court | House of Lords |
| Date | 27 February 2003 |
[2003] UKHL 8
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Walker of Gestingthorpe
My Lords,
I would dismiss this appeal for the reasons given by my noble and learned friend Lord Hoffmann, whose opinion I have had the advantage of reading in draft and whose summary of the facts and the relevant legislation I gratefully adopt and need not repeat.
Since the Trade Disputes Act 1906, trade unions and their officials have enjoyed a measure of immunity from actions against them by employers based on the tort of inducing breaches of contract by employees. But the immunity has never been, and is not now, unqualified. Under the law as it now stands, immunity is enjoyed only if the inducement is an act done in contemplation or furtherance of a trade dispute (Trade Union and Labour Relations (Consolidation) Act 1992, section 219) and only if the breach induced has the support of a properly conducted ballot (1992 Act, sections 226–234). This appeal raises issues concerning both these qualifications.
The first issue turns on the definition of a trade dispute in section 244(1) of the 1992 Act as meaning (so far as relevant) "a dispute between workers and their employers which relates wholly or mainly to … (a) terms and conditions of employment …". It is plain that most disputes between employers and employees which lead to strike action or industrial action short of a strike fall squarely within this definition however it is construed. One might instance disputes about rates of pay; ancillary benefits such as paid holidays, sick pay or pensions; working hours; overtime; rostering and shift patterns; and so on. In such situations, the employers or the employees (or their representatives) are seeking a change in some aspect of the employment relationship between them, whether strictly contractual or not, which the other party is resisting, and the action is taken to put pressure on the other party to accede. In such a case, if the ordinary processes of negotiation and collective bargaining break down, the inducement of breaches of contract (save in excepted employments, and subject to the balloting requirements) is not unlawful. So much is agreed.
But Mr Giffin, for the appellant P, contended that the statutory definition of trade dispute covers nothing other than a dispute about terms and conditions of employment, giving that expression the broad meaning favoured by Lord Denning MR in British Broadcasting Corporation v Hearn [1977] 1 WLR 1004 at 1010; [1977] ICR 685 at 692 and approved by the House in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 227, 233–234. I was for a time attracted by this argument, which was skilfully deployed and appeared to reflect the language of the statute. But I am persuaded that such a construction would be too narrow and would deny protection to genuine, employment-related disputes between employers and employees which have in the past been thought to be protected and ought in fairness to be so. Suppose, for example, an employer introduced a new machine or a new working schedule, as the employer was in principle entitled to do, but which his employees resisted on the ground that the machine was potentially dangerous or the new working schedule too onerous. There could be no doubt of the employer's duty to take reasonable care not to expose his employees to danger or to excessive stress, and it would accordingly be artificial to regard such a dispute as one about the terms and conditions of their employment, even on a broad construction of that expression. It would in truth be a dispute about the job the employees were required to do, a matter going to the very heart of the employment relationship. I would accordingly read the statutory definition as covering a genuine dispute between employees and their employer relating wholly or mainly to the job the employees are employed to do or the terms and conditions on which they are employed to do it. If this test is applied to the facts of the present case, as summarised by my noble and learned friend, it is plain that the dispute between the teaching staff and the governing body as their employers related directly to the job the teachers were required to do and were unwilling to do, which was to teach P.
The crux of the second issue, relating to the ballot, is whether the ballot was invalidated (and the trade union's entitlement to immunity thereby lost) because the union failed to treat two of its members at the school, of whose existence it learned after ballot papers had been sent out but before the conclusion of the balloting process, as persons entitled to vote. At first blush, one would expect the union's unintentional failure, which did not affect the result of the ballot, to be exonerated under section 232B. But section 232A is not one of the provisions listed in section 232B(2), which refers only to sections 227(1), 230(2) and 230(2A), with the result that a breach of section 232A cannot be excused under section 232B.
It has been common ground between the parties throughout that the reference to section 230(2A) in section 232B makes no sense. Morison J inferred, reasonably enough, that the reference to section 230(2A) in section 232B was intended to be a reference to section 232A, since when spoken both sound the same (judgment, paragraph 25). The Court of Appeal ( [2001] ICR 1241) saw the force of this point (judgment of Waller LJ, paragraph 59) but invited further argument, as a result of which it became clear (and was accepted by both sides) that the reference in section 232B(2) should have been, not to section 230(2A), but to section 230(2B). Thus the House has the unenviable task, as did the courts below, of attempting to construe this complicated series of provisions with knowledge that they contain at least one blatant error.
In the present case, the number of union members at the school was relatively small and it would not have been unduly onerous for the union both to establish with accuracy who was entitled to vote and also to ensure they received ballot papers. But these statutory provisions would apply equally to industrial action to be undertaken by thousands or tens of thousands. It would be absurd if an immaterial and accidental failure to send a ballot paper to a single member were to invalidate the ballot, so as to deprive the union of immunity, and this contingency is provided for by sections 230(2) and 232B. But it would be equally absurd if an immaterial and accidental failure to establish with accuracy who was entitled to vote were to invalidate the ballot so as to deprive the union of immunity. It is inconceivable that Parliament intended these 1999 amendments to the 1992 Act to have that result. The House must attempt to give the provisions a likely and workable construction. In my opinion, the construction advanced by my noble and learned friend achieves that result, and I also would adopt it. I would however hope, an error on the face of the statute having been exposed, that remedial legislative action may be taken.
My Lords,
The appellant was a pupil at a voluntary aided school in inner London. He is subject to an order prohibiting disclosure of his identity and I shall call him P. The teachers found him disruptive in class and violent and abusive in the playground. On 6 June 2000 the headmaster directed that he should be permanently "excluded", i e expelled, from the school. He appealed to the governors. On 30 June 2000 they directed that he be reinstated. So the headmaster instructed the teachers to take him back into their classrooms.
P went back to school and returned again after the summer holidays. At the end of the new academic year he was due to take his GCSEs. But, after further incidents of disruption in the autumn term, some of the teachers complained to their union, the National Association of School Masters/ Union of Women Teachers ("NASUWT"). They said that they should not be required to go on teaching him.
On 6 November 2000 the NASUWT gave notice to the governors, as the teachers' employers, that they intended to ballot their members at the school over whether they should strike or take industrial action short of a strike in furtherance of their objection to having to teach P. The giving of such notice is the opening shot in the series of steps which a union must take before it can lawfully call upon its members to take industrial action: see section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992.
On 14 November 2000 the union head office sent out ballot papers to 35 members. In fact there were 32 members teaching at the school but two had recently joined from other schools and the union had not been notified of their change of employment. The union's representative at the school told head office some time before 16 November that two members had been left out but by then the ballot papers had been distributed. The closing date for returning them to head office was the first post on 22 November.
The result of the ballot was that 26 members voted in favour of industrial action, described as not accepting "the unreasonable direction of the head teacher, acting under the instructions of the Governing Body, made in accordance with the Teachers' Pay and Conditions Document, to teach a certain pupil." None voted against.
The Teachers' Pay and Conditions Document contains the statutory conditions of employment of school teachers in the public sector. They are given effect by statutory instrument made by the Secretary of State pursuant to section 2 of the...
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