Court of Appeal
A dispute concerning terms and conditions of employment between an unidentified third party to whom the employer was planning to transfer its business and existing and future employees was not a "trade dispute" within the meaning of s.244 Trade Union and Labour Relations (Consolidation) Act 1992. * Leave to appeal to the House of Lords refused.
Defendant union's appeal against the decision of Timothy Walker J on 15 September 1998 to grant the plaintiff employer interlocutory injunctive relief in order to prevent a series of strikes due to start on 21 September. The plaintiff was in the business of providing hospital services. A vast majority of the plaintiff's employees were members of the defendant union. The plaintiff intended to transfer parts of its business to a transferee consortium, which in turn was likely to transfer part of that business to other transferees. That would involve the transfer of current employees by the plaintiffs, and therefore, the Transfer of Undertakings (Protection of Employment) Regulations 1981 ('TUPE') were likely to apply. However, the defendant's members sought greater protection than that provided by TUPE. The defendant made a demand on the plaintiff for it to impose on transferees terms that would guarantee that the terms and conditions of employment and the collective bargaining arrangement of those employed and to be employed by the transferees would remain the same as, or equivalent to, the existing terms and conditions of employment and collective bargaining arrangement. The defendant had sought to achieve the guarantee for a period of 30 years. The plaintiff did not comply with the demand. In furtherance of the demand, the defendant organised a ballot for industrial action amongst its members employed by the plaintiff. The ballot took place on 17 August and 2 September 1998. The result was in favour of taking industrial action in furtherance of the demand. The defendant, in consequence, called for industrial action by its members who were employed by the plaintiff. On 15 September 1998, the plaintiff obtained an interlocutory injunction restraining a series of strikes by members of the defendant union which were due to commence on 21 September 1998. At the interlocutory hearing, the judge concluded that there was not a dispute about current terms and conditions and that the strike had a wholly political flavour. The defendant appealed contending that it had immunity from any relevant tort liability, pursuant to s.219 Trade Union and Labour Relations (Consolidation) Act 1992, by reason that it was acting in furtherance of a trade dispute within the meaning of s.244(1) of the Act which provided that: "trade dispute" meant a dispute between workers and their employer which related wholly or mainly to, inter alia, terms and conditions of employment or physical conditions in which workers were required to work and/or machinery for negotiation or consultation. That section also provided "other procedures"….including recognition by employers of the right of a trade union to represent workers in any such negotiations or consultation or in carrying out such procedures. The issue on appeal was whether or not the dispute was a "trade dispute" within the statutory meaning.
(1999) ICR 204,(1999) IRLR 31
