Unison v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE MANTELL,LORD JUSTICE BUXTON |
| Judgment Date | 21 March 2001 |
| Neutral Citation | [2001] EWCA Civ 443,[2001] EWCA Civ 404 |
| Date | 21 March 2001 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | NO: PTA 2001/0677,NO: C/2000/2663 |
[2001] EWCA Civ 404
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(HHJ BRUNNING)
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
Lord Justice Mantell
Lord Justice Buxton
NO: PTA 2001/0677
MR JOHN HENDY QC & MR DAMIAN BROWN (instructed by UNISON legal officer) appeared on behalf of the Respondents/Defendants
MR CHARLES BEAR (instructed by Westminster City Council) appeared on behalf of the Appellants/Claimants
Tuesday 20th March 2001
Mr Hendy and Mr Bear, we propose to discharge the injunction which was ordered by the judge. We propose to give reasons at 10.30 tomorrow morning.
Does anything arise this evening as a result of that ruling?
MR HENDY: My Lord, only that firstly I should express my gratitude to your Lordships for accommodating this case, and secondly, I should give my heartfelt apologies to your Lordships and to my friend for the inconvenience you have all suffered because of the inadequacies on my side in getting this case in order in proper time.
Thank you very much, Mr Hendy. If either of you are in difficulty, then as long as someone is here on each side that is acceptable to the court. Of course you have a learned junior, Mr Hendy, if you are in difficulty; but, Mr Bear, is there anything you would want to say by way of contingency?
MR BEAR: I think I am able to be here tomorrow.
We are grateful to you both for skeleton and helpful submissions.
[2001] EWCA Civ 443
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE BRUNNING)
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
Lord Justice Mantell and
Lord Justice Buxton
NO: C/2000/2663
MR JOHN HENDY QC & MR DAMIEN BROWN (instructed by Unison Legal Department, 1 Mabledon Place, London WC1) appeared on behalf of the Appellant.
MR CHARLES BEAR (instructed by Westminster City Council) appeared on behalf of the Respondent
Wednesday, 21st March 2001
This is an application for permission to appeal with appeal to follow if permission granted against a decision of His Honour Judge Brunning, sitting as a deputy High Court judge, as recently as 16th March 2001. The judge granted an injunction to the Westminster City Council ("the City Council") in relation to a proposed strike of its employees called by the present appellants, UNISON. The Court is concerned only with the lawfulness of UNISON's action and not with the merits of the dispute or the proposed strike or other industrial action.
Before turning to the substance of the matter, I do mention that the Court was asked yesterday morning to hear the application of the appeal of UNISON at very short notice, today being the day when action by the employees was proposed to begin. Unfortunately, there were defects in the conduct on behalf of UNISON in the way the case came before the Court. Mr Hendy QC, on behalf of UNISON, has made unqualified apology for that and I do not propose to go into the matter in detail. I say only that when urgent action is sought from a court, the parties seeking it must be concerned not only with the skilful preparation of their own case but also show a respect for the function of the court and respect for the needs of the proposed respondent. That respect was not shown in this case. We know that Mr Bear, counsel for the City Council, had extremely short notice of the hearing and short opportunity to prepare his case. He argued it most helpfully and thoroughly and of course he had full knowledge of the arguments at the hearing before the judge which had only taken place only a few days before. The urgency arises partly because the action was proposed to begin today, and to use Mr Hendy's words, "the dispute will be exhausted by 30th of this month", for a reason which will appear.
Two issues arise: the first whether the dispute is a trade dispute within the meaning of section 244 of the Act and, secondly, whether the ballot requirements set out in section 226A of the Act have been satisfied by the union (the Trade Union and Labour Relations (Consolidation) Act 1992). The City Council has of course statutory functions, powers and duties, as it does as local housing authority under the Housing Act 1996. In particular it assesses and advises individuals claiming to be homeless and, where appropriate, places them in temporary or permanent accommodation.
The relevant functions are performed by what is known as the Assessment and Advice Unit ("the A&A Unit") run by the Council. It handles a very large number of cases, a high volume of work involving hundreds of calls and visits each week, often dealing with individuals or families in situations of great need. The Unit employs about 70 people, 45 of whom were, at the relevant times, members of UNISON. The City Council has intended for some time to transfer the business of the Unit to a private company, WMS Haywards Limited, and that transfer is now imminent and is due to take place on 2nd April 2001.
The structure of the Unit appears from document 1A placed before the Court with the statement of Ms Frances Mapstone who is the Acting Assistant Director of Housing (Homelessness and Private Section) of the City Council. There is an A&A manager. Answerable to him are five managers: Service Manager, Service Manager Temporary Accommodation, Service Manager Casework, Service Manager Housing Register & Rehousing, Service Manager Customer Service Centre. Each of those managers has a number of employees for whom he or she is responsible, the number varying from 12 to 18.
The dispute arises out of for the process of what is known as externalisation, that is the contracting out to a private company of the relevant function. The members of UNISON, in the A&A unit, wish to remain employees of the City Council. There has been negotiation over a long period of time between the Council and UNISON representatives as to this externalisation. It is said by Mr Bear, who appears on behalf of the City Council, that the externalisation of some of the services has not been opposed by UNISON.
Section 219 of the Act under the heading "Protection from Certain Tort Liabilities" provides in subparagraph (1), so far as relevant:
"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"
"Trade dispute" is defined in section 244 of the Act which provides insofar as material in subsection (1):
"In this Part a 'trade dispute' means a dispute between workers and their employer which relates wholly or mainly to one or more of the following
(a) terms and conditions of employment, or the physical
conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or
suspension of employment or the duties of employment, of one
or more workers;"
A dispute about a proposal to transfer an undertaking including its employees from their employment with their present employer the City Council, to employment with a private company is, on the face of it, a trade dispute within that definition, and that much is common ground. The expression "wholly or mainly" in the definition was considered in this Court in Mercury Communications v Scott Garner [1984] ICR 74. May LJ, at page 114F, stated:
"the words 'which relates wholly or mainly to' mean 'is predominantly about'."
That approach is accepted by the parties to this dispute.
Mr Hendy QC also refers to the statement of Lord Woolf MR in University College London NHS Trust V UNISON [1999] 1999, at page 31 at paragraph 33, Lord Woolf stated:
"At the same time it could have a more limited objective, namely
to alleviate the adverse consequences which it anticipates could
flow from the more general policy. That more limited objective can
be the reason for taking strike action. That more limited policy can
comply with the requirements of section 244".
The issue is whether this dispute is predominantly about the change in the identity of the employer or whether, as the City Council submits, it is about public policy issues, the question of externalisation, or the more limited question, which arose in the course of the discussions, about the possible conflict of interest in relation to the functions of the A&A Unit. It is common ground that during the early stages of discussions between the City Council and union representatives the concentration was on one or both of the public policy issues, to which I have referred. Mr Bear submits, and his submissions found favour with the judge, that this dispute was predominantly about those issues of public policy and was not predominantly a dispute about the change of identity of the employers.
Mr Bear has referred to the minutes of meetings which occurred on 3rd August, 21st November and 28th November 2000. He draws attention to the fact that what is now said to be the predominant component of the dispute was not the subject of discussion at those meetings. Mr Hendy accepts that until this year the emphasis...
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