Terms and conditions for local government employees were subject to national negotiation by the National Joint Council for Local Government Services (“ NJC”). In order for the NJC to reach a formal collective agreement, its constitution required a majority on each side to be in favour. Representation on the employer side representation was known as the “National Employers” while representation on the employee side was divided between three unions one of which was the defendant. The unions put in a pay claim to the National Employers and, following negotiations, the National Employers made a final offer. The union conducted disaggregated ballots across local authorities including the claimant local authority indicating that a trade dispute existed with regard to the 2023/2024 pay rates for all workers whose pay was based on pay awards made by the NJC, with the defendant seeking a pay increase of RPI plus 2% plus additional elements. The ballot results indicated that a majority of members were prepared to take part in strike action. Thereafter, the defendant's represented members were invited to proceed with discontinuous strike action until a fair settlement was achieved and further notice of industrial action was sent to the local authority. Meanwhile, at national level the NJC negotiations had continued and a letter was issued recording that a formal collective agreement had been reached in respect of the joint pay claim for workers covered by the NJC. Under the NJC arrangements, the effect of the agreement was that its terms were automatically incorporated into the individual terms and conditions of all relevant employees. However, the defendant did not approve the agreement and was not included in it as one of the signatories. The authority asserted that the defendant had committed an actionable tort in inducing the authority’s employees to take part in industrial action in breach of their contracts in circumstances where the original trade dispute, as defined by section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992, had been resolved by the NJC agreement and thus the defendant’s acts had not been done in contemplation or furtherance of a trade dispute so as to attract the protection from liability provided by section 219 of the 1992 Act. The authority further contended that the summary of the trade dispute in the voting paper for the defendant’s ballot of members had not complied with the requirements of section 229(2B) of the 1992 Act. The authority applied for an interim injunction to prevent the defendant from calling on its employees to take discontinuous strike action in breach of their contracts of employment and for an order that the union withdraw and revoke any instruction to the claimant’s employees in that regard, taking all practicable steps to communicate the revocation.
On the claimant’s application for an interim injunction —
Held, application refused. The fact that the union had to have held a ballot “in respect of the action” meant that the ballot relied on for the purposes of section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992 had to relate to that trade dispute. If the action related to a different trade dispute from that on which members had been asked to vote, it would not have the support of a ballot, which the legislation had made a condition precedent to taking industrial action in furtherance of a trade dispute. In seeking to determine the nature of the dispute which was the subject matter of the ballot, an overly technical approach ought not to be adopted to the way the question had might have been posed on the voting paper. Although the existence of a trade dispute was a matter to be determined objectively, there could legitimately be different ways of describing that dispute. Moreover, although, pursuant to section 229(2B) of the 1992 Act, the voting paper had to include a summary of the matters in issue in the trade dispute, the focus remained on the substance in that Parliament had intended the summary to be sufficient to enable the union member who was voting to understand what issues remained unresolved. The court had to see the wording of the ballot paper in the real world context in which trade disputes and industrial action inevitably played out, including the period or periods within which the industrial action or each type of industrial action was expected to take place, with all the attendant variables and uncertainties, the nature of a trade dispute being that it could evolve over time. The fact that the parties had managed to resolve some of the issues between them need not mean that there did not continue to be a trade dispute of substantially the same nature. In such circumstances, in determining whether a union had called for action on the basis of a continuing dispute when the employer contended that this had since been resolved, the question was whether that call had been made on the basis of an honest and genuine belief that that was the position (paras 52–56, 58, 59).
(2) Applying those principles to the present case, the hypothetical reasonable member would have understood the dispute in respect of which they were being asked to vote on taking industrial action to have been about the 2023/24 pay deal, with the understanding being that the defendant had been pushing for a pay increase of RPI plus 2% together with other elements of the overall pay package for all in the relevant categories. Further, reflecting the industrial reality in the present case, that would have been the answer of that hypothetical reasonable member regardless of whether the question had been posed before or after the date when agreement had been reached as part of the national process, but in terms falling short of the claim which the defendant had made. Accordingly, on the face of the matter a trade dispute, for the purposes of section 244(1) of the 1992 Act had continued to exist between the local authority’s workers represented by the defendant and their employer. It was likely that the union would establish at trial that it had honestly and genuinely believed that the matters in respect of which it called for strike action were all matters which related to the ongoing trade dispute that it had identified on the ballot. Weighing the balance of convenience in the light of all the relevant factors, the present case was not such an exceptional one as to warrant the grant of an injunction notwithstanding the likelihood of the defendant establishing its protection under section 219(1) of the 1992 Act (paras 65, 66, 68, 72–74, 77).
David Reade KC and Sophia Berry (instructed by Weightmans LLP) for the local authority.
Rebecca Tuck KC and Madeline Stanley (instructed by Thompsons Solicitors LLP) for the defendant.