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
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