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UNISON v Westminster City Council


Court of Appeal

Having considered the facts of the case and the information supplied in the pre-strike ballot the Court of Appeal was of the opinion, contrary to the judge's findings, that this case was to be regarded as a "trade dispute" and was not simply a case raising issues of public policy.Appeal from the decision of HH Judge Brunning made on 16 March 2001 at the High Court dismissing the case of the claimant ('UNISON') and granting an injunction against its members calling a strike. The substantial matter in this appeal was whether UNISON could lawfully call out on strike its members who were employed by the respondent council ('the council'). Three grounds arose in the appeal. Firstly, as to a whether there was a "trade dispute", it was not argued between the parties that such a strike call would constitute the tort of inducement of breach of the contracts of employment of the council's staff, but UNISON sought to rely on the immunity from that liability provided by s.219 Trade Union and Labour Relations (Consolidation) Act 1992. So far as was material, that section provided immunity if the strike call (the inducement to the breach of contract) was in contemplation or furtherance of a "trade dispute", the latter being statutorily defined by s.244 of the Act, and so far as was material meant a dispute between workers and their employer that related wholly or mainly to one or more of: (i) terms and conditions of employment, (ii) engagement or non-engagement, or termination of employment or the duties of employment of one or more workers, and (iii) whether the strike call was in furtherance of such a trade dispute. The judge held that it was not. In order to gain the immunity for a trade dispute, the union should also have served, through s.226A(1)(a), a notice on the employer prior to a pre-strike ballot of members. This notice needed to be in writing (s.226A(2)). The second issue therefore was whether the notice served by UNISON contained sufficient information to fulfil the requirements of that section. The third, more general issue, was whether the judge should have taken into account the balance of convenience and exercised his discretion by weighing the competing factors.

HELD: (1) The judge held that the dispute was predominantly about a change in employer and that such issues were a matter of public policy. He held that it was not, therefore, about the proposed transfer of employment of the staff and hence was not a trade dispute. It was submitted by UNISON that this was perverse and an error of law. There was sufficient evidence before both the judge and the Court of Appeal to determine whether a trade dispute had arisen. It was apparent that the judge had disregarded many aspects of the factual evidence that enabled the Court of Appeal to review whether there was in fact a trade dispute. A judge, when witnesses were not required, could on occasion disregard important evidence and draw incorrect inferences. This case could not be considered as a dispute regarding public policy masquerading as a dispute of terms of employment. This was therefore a trade dispute having had regard to the ballot information. The Court of Appeal was reluctant to agree with the judge's decision. (2) Having considered the content of the ballot papers and the questions posed to union members, it was clear to see that the union correctly did not identify any employer or individual by name. The "category" of new terms of employment was not mentioned nor did it need to be. In terms of complying with s.226(a) it appeared to the Court of Appeal that the union took all steps reasonably necessary to put out a ballot to its members. (3) It appeared that the judge had failed to have any regard to the various considerations that he should have weighed in exercising his discretion whether or not to grant the injunction, and accordingly failed to give any explicit consideration to the adequacy of damages and the balance of convenience.
Appeal allowed. Injunction discharged.

[2001] ICR 1046,[2001] IRLR 524

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