Royal Mail Group Ltd v Communication Workers Union

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeSir Patrick Elias,Lady Justice Simler,Lord Justice Males
Judgment Date04 Dec 2019
Neutral Citation[2019] EWCA Civ 2150
Docket NumberCase No: A2/2019/2874 & A2/2019/2874(B)

[2019] EWCA Civ 2150

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MR JUSTICE SWIFT

[2019] EWHC 3200 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Males

Lady Justice Simler

and

Sir Patrick Elias

Case No: A2/2019/2874 & A2/2019/2874(B)

Between:
Royal Mail Group Limited
Respondent
and
Communication Workers Union
Appellant

Lord Hendy QC & Mr Stuart Brittenden (instructed by Penningtons Manches Cooper LLP) for the Appellant

Mr Bruce Carr QC (instructed by DAC Beachcroft LLP & Royal Mail Group Legal) for the Respondent

Hearing date: 28 th November 2019

Approved Judgment

Lord Justice Males

Introduction

1

On 13 th November 2019 Swift J granted an injunction to restrain the defendant trade union from calling strike action in reliance on the outcome of a ballot of its members employed by the claimant company. The ballot was conducted between 24 th September and 15 th October 2019 and resulted in an overwhelming vote in favour of industrial action. The claimant, however, contended that it did not comply with the requirements of section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) and that, as a result, if strike action were to be called, the union would not be entitled to the immunity in tort for actions taken in contemplation or furtherance of a trade dispute for which section 219 of the Act provides.

2

As the application before the judge was for an interim injunction, he was required by section 221 of the 1992 Act to (and did) have regard to the likelihood of the union establishing any matter which would afford it a defence to the action. As he said, this meant that the task faced by the claimant was more onerous than in a case outside section 221 to which the American Cyanamid principles would apply without that qualification.

3

It was common ground that the proposed action was in contemplation or furtherance of a trade dispute, but the judge concluded that it was not likely that the union would succeed on its argument that there had been compliance with section 230; that damages would not be an adequate remedy for the claimant company in the event of unlawful strike action; and that the balance of convenience favoured an injunction.

4

The union seeks permission to appeal from this decision, the sole ground of challenge being that the judge was wrong to conclude that it was likely that there had been a failure to comply with section 230. A rolled up hearing took place before us on 28 th November 2019. We grant permission but, as we informed the parties at the conclusion of the hearing, we dismiss the appeal. This judgment sets out my reasons for doing so.

Background

5

The claimant and the respondent to the appeal, Royal Mail Group Limited (“RMG”), is the national provider of a postal service across the United Kingdom. It provides a range of postal services, which include delivering letters and parcels six days a week to over 30 million addresses across the country. In 2018–19 it handled around 14.7 billion items. Typically it delivers between 20 million and 35 million items a day, but this can more than double during the weeks leading up to Christmas.

6

The defendant and appellant, the Communication Workers Union (“the union” or “the CWU”), is a trade union recognised by RMG for all its non-managerial employees of whom there are more than 124,000 working across the United Kingdom. About 110,000 of those employees are members of the union.

7

It is unnecessary to describe the current dispute in any detail. It is sufficient to say that it arises because the union takes the view that RMG's plans for its business are contrary to both the letter and the spirit of an agreement reached in 2018 which was itself the settlement of a previous dispute in 2017 concerning proposed changes to employees' terms and conditions relating to the regrading and closure of a defined benefit pension scheme. That settlement was reached following a ballot which voted in favour of industrial action.

8

In September and October 2019 the union conducted a postal ballot of its members employed by RMG seeking support for industrial action. Ballot papers were issued to the relevant membership, a total of 110,292 RMG employees, by Electoral Reform Services, which acted as the independent scrutineer pursuant to section 226B of the 1992 Act, on 24 th September 2019. The ballot closed on 15 th October 2019, by which time 83,704 CWU members had voted. This represented 75.9% of those to whom ballot papers were issued. Of those who voted, 81, 232 (or 97.1%) voted in favour of industrial action, with 2,421 against. The union says that this reflects the strength and depth of members' feelings about the dispute.

9

In reliance upon that ballot, the union wishes, unless the dispute can be resolved by negotiation, to be able to call upon its members to participate in lawful strike action. It takes the view that without a real threat of industrial action, the dispute is unlikely to be resolved to its satisfaction. It wishes to be able to exert maximum but legitimate pressure on RMG by calling for a series of single or multi-day strikes during the Christmas period.

10

At the time of the hearing before the judge the proposed strikes would also have affected postal voting during the general election due to be held on 12 th December 2019. This was a factor which affected the judge's assessment of the balance of convenience, but was not relevant to the likelihood or otherwise of the union succeeding in its defence, that being a question which depended on whether there had been compliance with section 230 of the 1992 Act. As matters now stand, the potential impact on the general election has fallen out of consideration. That is because the union would be required to give 14 days' notice of any strike pursuant to section 234A of the 1992 Act, which notice would now expire too late to affect postal voting in the election.

11

Two other ballots were conducted by the union at the same time as the ballot with which we are concerned, both of which concerned employees of Parcelforce, a part of RMG. One of these ballots related to a separate dispute but the other was concerned with effectively the same dispute as the ballot in issue here. There were 4,217 Parcelforce employees entitled to vote in these ballots. In both of them there was a high turnout (67% and 69.4%) and an overwhelming majority in favour of industrial action (95% and 94.7% of those voting). The Parcelforce ballots did not give rise to the conduct of which RMG complains in this action. RMG has not challenged the union's right to call for industrial action in reliance upon them if it wishes to do so.

The statutory framework

12

Section 219 of the 1992 Act provides for immunity from liability in tort for actions undertaken in contemplation or furtherance of a trade dispute. By section 219(4), however, that immunity is subject to compliance with specified provisions in Part V of the Act including sections 226 and 234A which provide for the holding of a ballot and the giving of 14 days' notice of industrial action to the employer.

13

Section 226 provides that industrial action is not protected (i.e. does not have immunity from liability in tort) unless it has the support of a ballot conducted by the trade union; and that it is not to be regarded as having that support unless the ballot has been conducted in accordance with the requirements of sections 227 to 231 in which at least 50% of those entitled to vote did so, and a majority of those voting voted in favour. Section 234 provides that a ballot which complies with these requirements remains effective to confer immunity for a period of six months or such longer period not exceeding none months as may be agreed.

14

The requirements which are relevant in this case are set out in section 230, which provides:

Conduct of ballot

(1) Every person who is entitled to vote in the ballot must—

(a) be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and

(b) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself.

(2) Except as regards persons falling within subsection (2A), so far as is reasonably practicable, every person who is entitled to vote in the ballot must—

(a) have a voting paper sent to him by post at his home address or any other address which he has requested the trade union in writing to treat as his postal address; and

(b) be given a convenient opportunity to vote by post.

(4) A ballot shall be conducted so as to secure that—

(a) so far as is reasonably practicable, those voting do so in secret, and

(b) the votes given in the ballot are fairly and accurately counted.

For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot.”

15

Subsections (2A) and (2B) deal with the special position of merchant seamen who are at sea during the ballot period. It provides for ballot papers to be made available to such seamen on their ship and for them to be given an opportunity to vote while on the ship.

16

For present purposes, therefore, there are three requirements which must be satisfied. First, employees must be allowed to vote without interference or constraint by the union or its officials (subsection (1)(a)). Second, employees must so far as reasonably practicable have a ballot paper sent to them by post at their home address (subsection (2)(a)). Third, the ballot must be conducted so as to secure that, so far as reasonably practicable, voting is in secret (subsection (4)(a)).

17

The requirement for ballot papers to be sent to employees' home addresses was introduced by amendment in 1993. As initially enacted,...

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