On 19 July 2017 Mr Justice Jay handed down judgment in Ministry of Justice v The Prison Officers’ Association. The Court granted a permanent injunction restraining the POA from inducing Prison Officers to take part in ‘any industrial action’ pursuant to s. 127 Criminal Justice & Public Order Act 1994. John Hendy QC and Stuart Brittenden were instructed by the POA, who are seeking permission to appeal.
In summary, section 127(1A) defines industrial action as any inducement to withhold ‘services as a prison officer’, or any action that would be ‘likely to put at risk the safety of any person)…’, whilst s. 127(1) also captures inducements to commit a breach of discipline. A breach of s. 127 amounts to a statutory tort, which is actionable by the Secretary of State.
On 27 February 2017 the POA issued a Circular asking members to withdraw from various voluntary activities – they were voluntary in the sense that they were not under any contractual obligation to volunteer (or once having volunteered, they were under no obligation to continue to volunteer). Whilst accepting the POA’s arguments that the various tasks were not contractual in nature, the High Court nevertheless held that the reference to ‘withholding of services’ was sufficiently broad enough to cover ‘any services that a prison officer was carrying out’ whether they were classified as contractual or voluntary in nature. This analysis results in the anomalous situation that though a prison officer has no liability and cannot be disciplined for refusing or ceasing to volunteer for such a voluntary activity, a third party (whether the union, a spouse or a friend) would incur secondary liability under the Act for inviting the officer not to, or to cease, to volunteer. The High Court also found that the Circular amounted to an inducement to commit breaches of discipline and was likely to create risk to safety.
Of potentially wider significance is the Court’s analysis of whether a concerted withdrawal from voluntary (non-contractual tasks) with the object of causing harm to the employer, constitutes a stand-alone breach of the implied obligation to act in good faith. Mr Justice Jay rejected the Ministry of Justice’s argument that it was based upon the judgment of Lord Denning MR in ASLEF (No.2). Mr Justice Jay cited with approval the observations of Lord Hoffmann sitting in the Privy Council in Burgess to the effect that the ratio in ASLEF (No. 2) was narrower than once thought. The Privy Council in Burgess rejected the employer’s argument that an improper motive could amount to a breach of the implied term if the object was to be ‘wilfully obstructive’, Lord Hoffmann stated that this ‘… does not mean that they are in breach for refusing to do things altogether outside their contractual obligations (like going to work on Sunday) merely because they do not have a bone fide reason for refusal. They do not have to have any reason at all.’
Adopting a similar approach, the High Court found that as the activities referred to in the Circular were voluntary ‘… no question of any implied obligation arises, still less an obligation to refrain from non-performance only if their intention or motive was not to disrupt the MoJ’s undertaking. Their intentions and motives could be good, bad or indifferent; in terms of the legal analysis, this can make no difference.’
This judgment has potentially far reaching ramifications in the area of industrial action. As well as providing welcome clarification as to the reach of ASLEF (No.2), it raises issues of fundamental importance, namely whether a trade union is required to comply with the labyrinthine requirements contained in Part V TULR(C)A 1992, if, for example, it seeks to organise a concerted withdrawal from voluntary activities (such as non-contractual overtime).
To read the judgment, click here.
POA, Prison Officer’s Association, John Hendy QC, Stuart Brittenden, ASLEF, Burgess, Privy Council, industrial action
William Meade (Senior Clerk)