Warrington Borough Council v Unite the Union
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Eady DBE |
| Judgment Date | 01 December 2023 |
| Neutral Citation | [2023] EWHC 3093 (KB) |
| Year | 2023 |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2023-004454 |
[2023] EWHC 3093 (KB)
THE HONOURABLE Mrs Justice Eady DBE
Case No: KB-2023-004454
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Reade KC and Sophia Berry (instructed by Weightmans LLP) for the Applicant
Rebecca Tuck KC and Madeline Stanley (instructed by Thompsons Solicitors LLP) for the Respondent
Hearing date: Tuesday 28 November 2023
Approved Judgment
This judgment was handed down remotely at 14:00 on 1 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
Introduction
By application notice dated 22 November 2023, the claimant seeks interim injunctive relief to prevent the defendant from calling upon its employees to take discontinuous strike action, thereby acting in breach of their contracts of employment. An order is also sought that the defendant withdraws and revokes any instruction to the claimant's employees in this regard, taking all practicable steps to communicate this revocation.
The claimant is a local authority, providing various services, including the collection of waste, to the people of Warrington. The defendant is an independent trade union, which represents a number of the claimant's employees. Specifically, this application relates to employees of the claimant employed at its Woolston depot in Warrington, which is the base for the waste services operations carried out by the claimant.
In support of its application, the claimant relies on the witness statement of Mr Gareth Hopkins, Director of Workforce and Organisational Change in its Corporate Services Directorate, along with the bundle of documents exhibited to that statement. For its part, the defendant resists the application, relying on statements from Mr Brian Troake and Ms Samantha Marshall, Regional Officers in the North West Region; Mr Stefan Thorpe, Team Leader at the Woolston depot and a Branch Secretary for the defendant; and Mr Mark Douglas, Refuse Collector employed by the claimant at the Woolston depot. The defendant has also filed three exhibit bundles of additional documents referenced in those statements. The parties' statements and exhibits have been combined into one 691-page bundle for the purposes of this hearing.
The hearing was initially listed for one hour but, when it was apparent that the application was contested and the defendant was also seeking to rely on evidence in support of its case, this was subsequently extended to a longer listing. Given the amount of documentation filed, I indicated I would hand down judgment later on during the week. In now providing my ruling, I give thanks to all the lawyers involved for their hard work in preparing for this hearing and, in particular, to leading and junior counsel on both sides for their comprehensive, yet concise, submissions.
The Background
The NJC
Terms and conditions for local government employees are subject to national negotiation, the relevant negotiating body being the National Joint Council for Local Government Services (“the NJC”). In order for the NJC to reach a formal collective agreement, its constitution requires a majority on each side to be in favour. Employer side representation is known as the “National Employers”; representation on the employee side is divided between UNISON, the GMB and the defendant, their voting strengths (determined by membership size) being split: UNISON 31, GMB 16, the defendant 11.
The Relevant History
On 30 January 2023, the three NJC unions put in a pay claim to the National Employers, comprising:
“. An increase of 2% + RPI on all spinal column points
In addition:
. Consideration of a flat rate increase to hourly rates of pay in order to bring the minimum rate up to £15 per hour within two years
. A review and improvement of NJC terms for family leave and pay
. A review of job evaluation outcomes for school staff whose day to day work includes working on Special Educational Needs (SEN)
. An additional day of annual leave for personal or well-being purposes
. A homeworking allowance for staff for whom it is a requirement to work from home
. A reduction in the working week by two hours
. A review of the pay spine, including looking at the top end, and discussions about the link between how remuneration can be used to improve retention.”
The National Employers made a final offer on 23 February 2023. The main element of this offer was a consolidated payment of £1,925 per employee or 3.88% for those above the top of the pay scales. It is not suggested that this offer met the claim that had been made by the NJC unions.
The defendant made clear its rejection of that offer, with a general mailing of 3 May 2023 stating it would “ now swiftly move to full industrial action …”. On 13 June 2023, the defendant's regional officer (Mr Troake) wrote to the claimant's chief executive (Professor Broomhead) giving notice of an official industrial action ballot, stating the nature of the dispute in the following terms:
“Unite is in dispute concerning the pay rates for 2023/2024 for all workers whose pay is based upon pay awards made by the [NJC] …
…
Unless and until your organisation agrees to a pay increase of RPI + 2% and the additional elements of Unite's pay claim for all such workers, payable from April 2023, a trade dispute subsists between your organisation and members of this union employed by it.”
In June 2023, the defendant conducted disaggregated ballots across local authorities including the claimant. The ballot paper summarised the trade dispute in substantially the same terms as the letter of 13 June 2023:
“The pay rates for 2023/2024 for all workers whose pay is based upon pay awards made by the [NJC] … Unite seeks a pay increase of RPI + 2% and the additional elements of Unite's pay claims for all such workers, payable from April 2023.”
In respect of those employed by the claimant, on 18 July 2023, the ballot results were set out by the independent scrutineers, as required by section 231B Trade Union and Labour Relations Consolidation Act 1992 (“ TULR(C)A”) recording that, 52.05% of those entitled to vote having done so, 76.32% had indicated they were prepared to take part in strike action.
On 12 September 2023, the defendant gave the claimant notice of its intention to call upon its members at the claimant's Woolston depot to take part in discontinuous strike action from 3 to 16 October 2023. The claimant does not suggest that any issue arises from the defendant's decision only to call out a subset of its members in this way. As Ms Marshall explains, this is not an unusual industrial action strategy; the Woolston depot is where the defendant has the highest numbers and density of membership and it was obvious that a strike in waste services would have an immediate impact (a point Mr Troake made in his email sent out to the defendant's membership at around this time).
On 18 September 2023, Mr Troake emailed Professor Broomhead seeking local negotiations. Professor Broomhead replied the same day, saying:
“WBC understands that this dispute and the industrial action is in relation to the 2023 national pay situation/awards. We fully respect national pay bargaining arrangements and feel it is not appropriate to do anything outside of this — nor do we want to negotiate with one single trade union.”
By further email to Professor Broomhead, of 4 October 2023, Mr Troake re-stated the defendant's views, referring to its:
“…willingness to reach a negotiated settlement locally with Warrington Borough Council under [NJC] Part III provisions, … Unite will not accept local authorities hiding behind the notion that employers must abide by the NJC negotiations, as Part III provisions clearly allow for local negotiations, combined with the fact that the NJC outlines the minimum terms and conditions, not the maximum.”
Professor Broomhead replied the following day, stating:
“I would just reconfirm that the reason for your industrial action as stated in documentation supplied to the Council in relation to the ballot was “the rates of pay for 2023/2024 for all workers whose pay is based upon pay awards made by the [NJC] …
I am not aware of UNITE raising any local pay issues other than the national pay award with us as an employer, despite having a robust consultative framework in place, which includes a Joint Consultative Committee, consisting of Trade Unions and Elected Members, and which provides a forum for any such matters to be raised or escalated to
… However, I am willing to take a call with … ACAS as you suggest, to hear how they may wish to assist. ….”
Mr Troake responded, the same day, saying the defendant had not had the opportunity to raise its “ local employee concerns” outside the NJC framework.
On 5 October 2023, Professor Broomhead had a telephone conversation with ACAS, during which (as recorded in Mr Hopkins' statement) he was informed that the defendant would be willing to end the strike action at the Woolston depot if agreement could be reached around one or all of the following areas: a one-off payment for waste staff; overtime rates; a laundry allowance; start and finish times for drivers.
On 10 October 2023, the defendant served a further notice of industrial action, for the period 24 October to 6 November 2023.
By letter of 12 October 2023, Professor Broomhead wrote to Mr Troake regarding this notice and referring to further contact from ACAS, noting:
“… In addition to a laundry allowance, you also wish to discuss Agency workers, continuous employment for seasonal workers, Christmas working arrangements and...
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