Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Employee relationsDispute resolutionEmployment lawIndustrial action / strikes

Legal opinion: Injunctions and disputes

by Personnel Today 9 Feb 2010
by Personnel Today 9 Feb 2010

On 17 December 2009, British Airways (BA) was granted an interim injunction prohibiting Unite members from striking for 12 days over the Christmas period. The proposed strike was part of a long-running dispute with BA. Unite had balloted its members in response to BA’s reduction in the number of cabin crew on long-haul flights.


Unlike final injunctions, which are granted after a full trial with judgment on the merits of the case, an interim injunction is a provisional measure taken at an early stage in the proceedings. It remains in force until final judgment or discharge by the court. The aim is to seek to prevent injustice being caused by preventing certain action being taken – in this case, a strike, pending a full trial.


An interim injunction is granted at the discretion of the court where it appears just and convenient to do so. In American Cyanamid Co v Ethicon Ltd [1975] the court held that the main issues to be considered when determining an application for an injunction are:




  • whether damages would adequately compensate the claimant


  • the balance of convenience (for instance, which party will suffer most if the injunction is or is not granted) and


  • the strength of the parties’ cases.

Due to the cap on damages awarded against unions (linked to the size of membership), it is generally accepted that damages will rarely be an adequate remedy for an employer in these types of cases.


In industrial action cases, the respective merits of the case are an important factor in the exercise of the court’s discretion as the matter will rarely reach a full trial. The court also has a duty under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to consider the defendant’s likelihood of success at trial in establishing any defences available to it under the Act.


BA applied for the injunction on the grounds that Unite had failed to hold a valid ballot in accordance with the requirements under TULRCA, and, consequently, any strike action would be unlawful. BA alleged that Unite erroneously balloted several hundred members who it knew would no longer be employed by BA at the time of the proposed strike as they had taken voluntary redundancy. Unite relied on the statutory defences contained within TULRCA that the information provided in the ballot and the strike notices was as accurate as was reasonably practicable, and in any event any failure was accidental and had no effect on the outcome.


The court found that Unite’s arguments had no real prospect of success and that the balance of convenience lay firmly in favour of granting the injunction. It held that Unite ought to have been able to determine which of its members would remain in employment on the date of the strike. Furthermore, the court held that if Unite had been unable to make this determination, they ought to have issued clear instructions informing their members that if they were leaving employment, they should not vote. Instead, for example, a senior member of the union replied to a query posted on the union website regarding those members leaving under voluntary redundancy, stating “As long you’re employed when you vote, it is ok”. This was clearly an incorrect statement.


The injunction could have been avoided had Unite not balloted those employees being consulted for redundancy. Unite contended that its non-compliance with the provisions under TULRCA were merely technical failures with little or no impact on the final outcome. However the court held that the breaches of the statutory provisions were not “technical failures”, but rather breaches of technical requirements. It was recognised by the court that the aim of the legislation was not to make life more difficult for trade unions by putting further obstacles in their way before they could call strike action. However, the legislation is clear as to what technical requirements have to be satisfied, and the court held that Unite had failed to satisfy them.


The dispute between BA and Unite is set to rumble on for some time. Unite has recently announced an intention to ballot its members to strike again over the Easter period. It is unlikely that Unite will repeat the same errors it committed in the first ballot. However, the recent judgment should give them further cause for concern as regards the court’s approach to the grant of an interim injunction as a matter of principle in this case. The judge, in considering the balance of convenience test, commented that lengthy strikes at high volume periods of the year are fundamentally more damaging to BA, and the wider public, than strikes at any other time. Consequently, Unite should expect a rough ride once again if BA challenges the planned Easter strike.


By Claire Bolton, solicitor, employment department, and Jonathan Brogden, partner, commercial litigation department, Davies Arnold Cooper

Avatar
Personnel Today

previous post
Case of the week: Lyons v Mitie Security
next post
Viewpoint: Skills and Engagement

You may also like

One in five employers planning ‘no jab no...

19 May 2022

How should HR handle the highest inflation in...

18 May 2022

MP demands timeline on carer’s leave legislation

13 May 2022

Queen’s Speech: absence of employment bill leaves organisations...

10 May 2022

Dealing with bullying in uncertain times

10 May 2022

Queen’s Speech: Exclusivity contracts for low-paid workers to...

9 May 2022

MP seeks legal protections for employees undergoing fertility...

9 May 2022

PwC staff to benefit from extended summer hours...

5 May 2022

Post Office staff strike over below-inflation pay offer

3 May 2022

A dark day for workers’ rights – why...

29 Apr 2022
  • Apprenticeships are the solution to your recruitment problems PROMOTED | Apprenticeships have the pulling power...Read more
  • What it really means to be mentally fit PROMOTED | What is mental fitness...Read more
  • How music can help to ease anxiety at work PROMOTED | A lot has happened since March 2020, hasn’t it?...Read more
  • Why now is the time to plug the unhealthy gap PROMOTED | We’ve all heard the term ‘health is wealth’...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Shared parental leave
    • Redundancy
    • Maternity & Paternity
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
    • OHW Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+