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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> EDF Energy Powerlink LTD v National Union of Rail Maritime and Transport Workers (NURMTW) [2009] EWHC 2852 (QB) (23 October 2009)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/2852.html
Cite as: [2010] IRLR 114, [2009] EWHC 2852 (QB)

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IN THE HIGH COURT OF JUSTICE                                                 HQ09X04637.
(QUEEN'S BENCH DIVISION)
[2009] EWHC 2852 (QB)

                                                                    Royal Courts of Justice,
                                                                                    Strand,
                                                                      London WC2A 2LL.

                                                                  Friday, 23rd October 2009.

                                          Before:

                                  MR JUSTICE BLAKE


EDF ENERGY POWERLINK LTD                                                         Applicants


      - v -


NATIONAL UNION OF RAIL MARITIME AND TRANSPORT
WORKERS                                Respondents


                                 ____________________


MR TIMOTHY BRENNAN QC (instructed by Lewis Silkin LLP, 5 Chancery Lane, Clifford's
Inn, London EC4A 1BL) appeared on behalf of the Applicants.

MR JOHN HENDY QC and MR MARCUS PILGERSTORFER (instructed by Thompsons
solicitors, 23 Princess Street, Manchester M2 4ER) appeared on behalf of the Respondents.

                                 ____________________

                                      Tape Transcription by:
                           John Larking European Verbatim Reporters,
                           (Verbatim Reporters and Tape Transcribers)
                         Suite 91, Temple Chambers, 3-7 Temple Avenue,
                                       London EC4Y 0HP.
              Tel: 020 7404 7464 Fax: 020 7404 7443 DX: 13 Chancery Lane LDE

                                 ____________________

                                        JUDGMENT
                                      (As Approved)
                                       (amended)



                                            -1-

                                  © Crown Copyright 2009

                                                                      Friday, 23rd October 2009.


                                        JUDGMENT:

MR JUSTICE BLAKE:

01   This is an application on notice by the Claimant, EDF Energy Powerlink, for interim
     relief to prevent the Defendant union, the RMT, from calling a strike on the basis of a
     ballot that it conducted amongst its members employed by the Claimant between 1-22
     October this year. The central question is whether the Defendant trade union gave
     sufficient information to the employer to discharge its duty of notification under the
     relevant provisions of the Trade Union and Labour Relations Consolidation Act 1992 as
     amended ("the Act") that would thus enable any strike action to be protected by statute
     and qualify for exemption from tortious liability, and thus amounting to a lawful strike
     call.

02   Mr Hendy QC, appearing for the RMT at short notice, submitted a skeleton argument and
     made oral submissions on at least two other issues: (1) whether the construction of the
     Act relied upon by the employer infringed the right to strike that was enforceable in
     domestic law, (2) whether relief should in any event be refused as premature in the light
     of the fact that the ballot had not yet concluded as of the hearing of the argument on 22nd
     October. He pointed out that no result is known; no decision has yet been made to call a
     strike; and in particular no strike notice has been issued. I propose to deal with those two
     matters first before returning to the principal issue. As to the first, the court has the
     benefit of the decision of the Court of Appeal in Metrobus Ltd v UNITE the Union
     [2009] EWCA CIV 829, [2009] IRLR 851, a judgment given earlier this year. At para.
     37 of his judgment, Lord Justice Lloyd says this:

           "English law does of course recognise a right to strike and exempts trade unions
           from tortious liability that they would otherwise be under for calling a strike. The
           relevance of the jurisprudence of the ECHR on Mr Hendy's submissions is that the
           restrictions on the ability of a trade union to call a strike must stand up to scrutiny
           under para. 2 of Article 11. They are of course prescribed by law, but are they
           necessary in a democratic society in the interests mentioned in the paragraph? In
           other words, are they proportionate?"

     There is then a review of relevant human rights jurisprudence and a conclusion that the
     particular requirements of notification and other duties in the context of that case were
     indeed proportionate.

03   I observe that in addition to the developing jurisprudence on the question under Article 11
     of the European Convention of Human Rights, which is implied into domestic law by the
     Human Rights Act, there is also the express provisions of the Charter of Fundamental
     Rights of the European Union that has been in existence since 2000 as stating to reflect
     common principles in the Union and may, become a binding source of obligation. Article
     28 says that:




                                              -2-

                                    

           "Workers and employers or their respective organisations have in accordance with
           Community law and national laws and practices the right to negotiate and conclude
           collective agreements at the appropriate levels and in cases of conflict of interest to
           take collective action to defend their interests including strike action."

     But the right to strike, as is made apparent, is not absolute and can be defined according
     to national law, and proportionate derogations from it may be permissible as other
     provisions of Article 52 of the Charter makes plain.

04   In Metrobus as the court concluded that the requirements as to pre-strike notification and
     ballots were not onerous or oppressive and did not unduly restrict the exercise of the right
     to strike. I would accept for present purposes Mr Hendy's submission that locating the
     interpretation of the legislation within the context of an important right could be a pointer
     to construction in a debateable case and could be a guide to avoid unreasonable
     requirements being imposed upon the union that might otherwise be said to interfere with
     the right. It may also in appropriate cases be relevant to discretion whether any failure by
     the Defendant is merely a technical one and has no material impact upon the employer"s
     ability to make use of the information. But for reasons that follow, in my judgment,
     neither consideration requires further exploration on the facts of this case.

05   The particular decision in Metrobus also further points out that the obligations on unions
     of notification are at least three-fold: (1) there is an obligation of notification to the
     employer of information when a ballot is being called - Section 226(1)(a) of the Act, and
     Section 226(A)(2)(C); (2) notification to the employer of the results of the ballot as soon
     as is reasonably practicable - Section 231 of the Act; (3) notification to the employer of a
     decision to call a strike within 28 days of the ballot and giving at least seven days" notice
     in a strike notice - Section 234(A) of the Act. In Metrobus the trial judge had found
     breaches of the second and third duties; the Court of Appeal concluded that the breaches
     as regard the third duties were immaterial but nevertheless the trial judge was entitled to
     grant an injunction on the breach of the duty to give notification of the results of the
     ballot as soon as is reasonably practicable. Pausing there, it appears, therefore, that even
     though the employer had been given seven days" notice of a strike by a notice which the
     Court of Appeal did not conclude was materially defective, the failure to give the results
     of the ballot as soon as reasonably practicable was a sufficient failure to justify the
     injunction. Thus it would appear that a failure to give any one of the notices required by
     the duty may result in the grant of the injunction. In the present case, it is submitted that
     there was a failure at the first stage, which is the only stage that had been reached - the
     giving of the information to the employer about the ballot to be conducted as to whether
     there would be a strike. It is apparent that the requirements about ballots are a material
     part of the lawfulness of strike action (See Section 290(4) of the Act) and if that failure is
     made out, it would afford the proper foundation for the exercise of discretion to grant an
     injunction.

06   Addressing the submission that it would be premature to consider any relief at all, the
     court notes that the sequence of events described in the evidence suggest a rapid moving-
     on from the first existence of a dispute about pay negotiations in the middle of September
     2009 to a ballot which does at least lead to the threat of strike action within a short period
     of time in the future. Admittedly, for the reasons Mr Hendy gave, the threat at present is
     a contingent threat but given the potential periods of time involved -no less than seven

                                               -3-

                                    

     and no more than 28 days - I would assess that in all the circumstances the risk of
     unlawful strike action in breach of the statute (if that is what it turns out to be) would be
     sufficiently imminent to justify what used to be called quia timet injunctions. In that
     context, it is material to note that the workers who were being balloted are a group of
     technicians who work in the Claimant's installations that supply electrical power to the
     London Underground tube system. The implications of a shutdown of the relevant parts
     of the Claimant's workplace are therefore substantial and would have widespread
     ramifications elsewhere. The Claimant submits that it is entitled to as much notice of
     possible strike action as the statute provides in order to be able to respond in any way it
     thinks fit to that threat, which includes - but is not limited to - contingency plans for
     alternative labour to keep the system going.

07   With those other issues disposed of for the present purpose at the outset, I now return to
     the principal issue in dispute, and first address the evidence upon the question. The
     Claimant relies upon the evidence of its employment relations manager Mr Myers, and
     his witness statement reveals that there are 270 permanent staff employed by the
     Claimant in a variety of roles. It also reveals that there are at least three workplace sites
     involved in the present dispute, Tufnell Park, Central London and Waterloo. There are a
     number of different unions recognised in different sites for different purposes. Moreover,
     the Claimant does not operate a check-off system, viz., deduction of union subscriptions
     from pay, in respect of any of its employees; therefore it is said the Claimant does not
     know and is unable to determine which of its employees belong to the respective trade
     unions with whom it negotiates. It is probably sufficient for the purpose of deciding the
     central issue in this case to focus upon the arrangements at Tufnell Park. The Claimant
     there employs 155 staff, of whom five are titled administrative staff, but the majority of
     the employees there are described in the following terms: "Fitters, jointers, test room
     inspectors, day testers, shift testers or OLBI fitters." In general terms the employees at
     Tufnell Park are described as craft staff. It is going to become apparent when further
     material is examined that the Defendant informed the Claimants that it had 52 members at
     Tufnell Park, 52 therefore out of 155, and it claims a total of 64 members at all three sites.

08   On 24th September 2009, notice of a ballot under Section 226(A) of the Act was given by
     the Defendant through its General Secretary Bob Crowe. The text reads:

           "This union reasonably believes the opening day of the ballot will be Thursday 1st
           October 2009. The members of this union who will be entitled to vote in the ballot
           are all those members of this union employed by the company in the category of
           engineer/technician. A list of the categories to which affected employees belong,
           the numbers in each category and workplaces of affected employees and the
           numbers at each workplace (and the total number of employees concerned) is set
           out below."

     The categories are "Engineer/technician 64" and then the three workplaces are identified
     including in particular Tufnell Park. It is said:

           "The list and figures set out above has been arrived at by retrieving information
           from the union's membership database as to the categories of workplace and
           members and the numbers in each, the database having been altered and updated


                                               -4-

                                    

           for the purpose of the statutory notification balloting requirements to ensure
           accuracy."

09   To that letter the Claimant responded on 25th September, the following day. Amongst the
     points that were made is that "We do not believe your ballot notice complies with the Act
     "as we are not able to identify the category of union members you propose to ballot.""
     Other points were made. To that letter the General Secretary of the Defendant union
     replied on 2nd October, stating: "The union is not obliged to use the same categorisation of
     job description as that chosen by the employer." There is then a reference to the Code of
     Practice to which further regard will be had later in this judgment, and continues:

           "I do not believe that you will have any difficulty in identifying the groups of
           employees covered by the categorisation and used by the union. As you already
           acknowledge, you recognise who is employed as an engineer. I believe the
           information the union has provided in terms of job descriptions is more than
           sufficient for you to be able to establish which job descriptions have been balloted
           over the failure to make a reasonable pay order."

10   There was then a reply on 13th October at which time it was pointed out what the union
     had done the previous year when there had been an earlier notice of ballot in respect of
     some of the workers at the Tufnell Park site. In that letter, which should have been dated
     9th October 2008 though in fact there was an acknowledged typographical error, the
     information was given as follows:

           "The members of this union who will be entitled to vote in the ballot are all
           members of this union employed by the company as shift tester staff and categorised
           in our membership database as engineer/technicians employed at the Tufnell Park
           workplace. There are 25 such members. The figure given has been arrived at by
           retrieving information from the union's membership database as to the categories
           and workplaces of members, the database having been altered and updated for the
           purposes of the statutory notification and balloting requirements to ensure
           accuracy."

     It can be seen therefore that in 2008 in respect of 25 engineer/technicians employed at
     Tufnell Park the union identified shift tester staff, which corresponded to one of the
     categories mentioned by Mr Myers in his witness statement in the present proceedings.

11   On 16th October, the General Secretary responded to the point about different terminology
     used in the 2008 ballot and said:

           "There is no obligation on the union to use the same description of job category that
           it has in previous ballots. The only obligation on the union is to set out the
           categories of members to be balloted and their numbers."

     He points out that there was a particular reason why the more detailed description was
     given in 2008 because it concerned a parity claim with other groups. That same point is
     repeated in the witness statement filed by Mr Crowe for the purpose of these proceedings.
     The point is also made in that witness statement that engineer/technician is a recognised
     class of skill across the industry generally. The RMT denies that it has job descriptions

                                              -5-

                                   

     more detailed than engineer/technician in its computer database or that it obtained the
     more detailed job description used in 2008 from its database. Despite the wording, of the
     letter already quoted the Claimant produced edited extracts of its current database which
     do not apparently show any recording of job description beyond engineer/technician save
     in one respect where in one column the words TRI are added which may well be Test
     Room Inspectors, which is one of the classes identified in Mr Myers" statement.

12   Mr Hendy QC nevertheless accepts it was perfectly possible for the union to contact the
     shop stewards at the workplace and to discover the particular function in which the
     employee is engaged, and suggests that that is how the information had been obtained in
     the previous year. It is a small workplace, but he submits that what is practical and
     possible is not the test of what is required.

13   Against that factual background, it is necessary now to turn to the law. I will treat as
     having been read into this judgment the whole of the following Sections of the Act -
     Section 226(1) and Section 226(A) from subsection (1) through to subsection (2)(e). It is
     pertinent to observe that the requirement of a list of categories spelled out in Section
     222(A)(2)(a) is mirrored in some respects by the requirements to give notice to employers
     of industrial action under Section 234(A) and I will treat as being read into this judgment
     subsections (1) (2) (3) (3a) (3b) and (3c) of that Section as well as subsection (5b). The
     Act itself does not define what is meant precisely by categories of employee.

14   By Section 207 of the Act, the court deciding disputed questions is required to take into
     account the provisions of a Code of Guidance issued by the Secretary of State under
     Section 203. The material Code was issued in October 2005. Paragraph 15 of that Code
     is in the following terms:

          "There are many ways to categorise a group of employees. When deciding which
          categories it should list in the notice, the union should consider choosing a
          categorisation which relates to the nature of the employees" work. For example,
          the appropriate categorisation might be based on the occupation, grade or pay
          grade of the employees concerned. The decision might also be informed by the
          categorisations of the employees typically used by the employer in his dealings with
          the union. The availability of data to the union is also a legitimate factor in
          determining the union's choices."

15   Some further judicial guidance on the ambit of categories can be obtained from a decision
     in 2001, Westminster City Council v UNISON [2001] EWCA CIV 443, [2001] IRLR 524. That was 
     a case about a ballot notification sent in respect of a group of workers who
     could be described as advice and assistance workers working in a particular location
     concerned with housing questions. The Deputy High Court Judge had granted the
     employer an injunction on two grounds, the second of which was that the notice served on
     the employers had not satisfied the requirements of Section 226(A) because it failed to
     identify the category of workers sought. The Court of Appeal allowed the appeal and
     discharged the injunction. Lord Justice Pill said:

          "54. The legislative purpose was "to enable an employer to know which parts or
          part of its workforce were being invited to take industrial action" para. 45.


                                             -6-

                                   

           "55. The word "category" was not defined by Lord Justice Robert Walker in the
           London Underground case nor was it necessary for him to do so. Equally, it is not
           necessary for this court to attempt a comprehensive definition.

           "56. In my judgment, it is clear that the requirement was met upon the facts of the
           case and that the requirement as to "category" was sufficiently met in the
           information provided. The number of staff involved was only 45. They were
           identified as A and A workers. The relevant staff are said to be those in the
           assessment and advice community. While not identified by name, information was
           provided by reference to the DOCAS system by which the individual identities could
           easily be ascertained by the employers. It is not suggested that different professions
           or trades are involved within the AA unit."

     I give emphasis to the words in that last sentence.

16   Lord Justice Pill had earlier in his judgment, referred to the decision of the Court of
     Appeal in the London Underground case [2001] IRLR 228. It is sufficient to quote
     Lord Justice Pill at para. 51 where he quotes Lord Justice Walker at para. 47 of the
     London Underground case:

           "If the amendments are approached in that way, it becomes clear that the judge
           was right to interpret information as to the number, category or workplace of the
           employees concerned in such a way as to provide the employers with information
           which was useful to them. The usefulness of the information is seriously reduced if
           an employer is simply told 5000 employees, all grades, all workplaces, without the
           additional information which could be conveyed by a grid or spreadsheet with
           different categories (as appropriate) listed at the side and different workplaces
           listed at the top and the appropriate numbers filled in."

17   The Court of Appeal in the Westminster case noted the material differences in the facts.
     In Westminster Lord Justice Buxton gave a concurring judgment and said the following
     at paras. 78-79:

           "As to the matter of the notice, the genesis of the present form of Section 226(A) of
           the Act is explained in the judgment of Lord Justice Robert Walker in this court in
           the London Underground case, some considerable part of which my Lord has set
           out. One of the reasons for the present form of the Section, as Lord Justice Robert
           Walker recognised, was to avoid what might otherwise have been an obligation
           upon the union to give actual lists of names of the persons who were going to take
           industrial action. The reason why notification is required is to enable amongst
           other things, the employer to make plans in relation to proposed actions. I would
           assume that that is directed as his ability to cope with the practical difficulties
           caused to him if the action takes place. For that purpose, he needs to know who is
           going to be on strike and who is not. What the union has to tell him, if it knows,
           includes the categories of employees affected by the action. That is my judgment is
           a very broad word and not to be either exclusively or narrowly defined. It means
           no more than a reference to the general type of workers. In this case, by means of a
           reference to the DOCAS deduction system, the employer actually had, or was given


                                              -7-

                                    

           access to a nominal role of those who were going to be taking the action, something
           that was more than the statute in its revised form intended.

           "79. It is wholly artificial in those circumstances to say that the Union should have
           given details of job descriptions and status of employees of the sort to which my
           Lord has referred. It is much more reliable from an employer's point of view if,
           having been given the names, he himself with his superior knowledge of the way in
           which his operation works, decides into what categories and into what sections
           those persons fall ... we should look with great caution at such an argument about a
           statute as this, which is a statute directed at industrial relations, designed to enable
           workers and employers to conduct their affairs in a sensible and efficient way."

18   Clearly, a number of the comments in Westminster were predicated upon the fact that
     that was a check-off case, because the employer knew precisely who the members of the
     union were in that case. That is a contrast to the present case. As noted already in the
     statute, there is a different obligation in check-off cases, in either non-check-off cases or
     mixed check-off cases. However, taking the guide to how category should be interpreted
     by those observations collected in the Westminster case, in my judgment the following
     propositions emerge:

           (1) By contrast to the Westminster case, the present case is a case where it seems
           that different trades were being employed at Tufnell Park, and therefore in the
           absence of any other information through the check-off system or otherwise the
           employer would be entitled to know who was being balloted in respect of those
           trades and who might be called out pursuant to ballot in an industrial dispute.

           (2) This is not a case where what the Claimant is submitting should have been
           provided is either a detailed job description of the members of the trade or details of
           the employer's organisation of those trades it employs, for example, who is going to
           work on a particular shift or under which particular manager.

           (3) on these facts there is substance to the Claimant's point that it would make a
           material difference to the employer if he had to face the risk, for example, of a test
           room inspector withdrawing his labour as opposed to a fitter. Although the court
           has not been informed in any detail of what the contrasting functions are, it is not
           difficult to imagine that they may have different skills, different roles in the
           operation, and the loss of one may have significantly different effects to the loss of
           the labour of another.

           (4) If a decision is taken to strike, and a strike notice actually issued, and the third
           broad duty identified in the statute might then come into play with duties to give a
           strike notice under Section 234(A) identifying under subsection (3)(A)(a) a list of
           categories of employee to which the affected employees belong. It is possible those
           categories might be different from those categories who had been balloted in the
           first place. However, the fact that the same term of "category" is employed in both
           Section 226(A) and Section 234(A), in my judgment, has some significance. A
           trade union might decide in order to further the objectives of its trade dispute only
           to call out one category of worker, for example, the test room inspector. But the
           fact that it is the test room inspectors who might be called out if matters developed

                                               -8-

                                    

           to that level is an indication that such similar categories about which the employer
           needs to be notified at the start of the sequence of duties in order to make its
           preparations and to respond in any way it thought appropriate.

           (5) Whilst para. 15 of the Code of Guidance indicates that the way in which the
           union categorises its members is relevant, it is expressly indicated that it is not
           decisive. It is therefore not the only circumstance that is to be put into the mix in
           order to find out what is the relevant category in a particular case. A similar point
           may be being made in Section 226(A)(d) in the statute, which states that the list and
           figures must be as accurate as is reasonably practicable in the light of the
           information in the possession of the union at the time when it complies with the
           subsection. It may very well be that the information as to which trades may be
           called out is not recorded in the union's database, but that is not the only
           consideration as to what is reasonably practicable in terms of accuracy of the
           information it supplies to the employer.

           (6) The duty on the union is not an absolute one, and a purposive and context-
           sensitive construction suggests overall that only a duty to do their reasonable best to
           address the essential criteria and to explain as far as they can how they got to the
           information that it supplies.

           (7) Therefore, the fact that the union does not record the information and may not
           be in its possession may be highly material in considering whether the duty has
           been discharged or an injunction granted, but it is not necessarily always decisive.
           If otherwise was the case then there would be a temptation for the trade unions to
           record minimal information in their record-keeping of members in order to diminish
           the content of the duty to supply categories to the employer, and simply say "Since
           we do not record it, we have no duty to supply anything other than quite broad
           descriptions of which it could be said that engineer/technician is one." The
           Claimant has some suspicions that something might have happened between 2008
           and 2009 but I reach no conclusion on that.

           (8) In the present case, as Mr Hendy QC readily accepted, it is practicable to supply
           the information in the context of a small employment place with a shop steward or
           local representative more intimately connected with the working practices than the
           branch secretary. I conclude that a requirement to do so does not impose an
           onerous or unreasonable burden.

19   Putting all those conclusions together, I conclude that in the present case the particular
     descriptions that the Claimant was seeking appear to fall into the category of trade rather
     than job description. I conclude that the Claimant has demonstrated that the requirement
     to give notice under Section 226(A) have not been met. Therefore, although I have to
     have regard to the prospects of the Defendant successfully raising the statutory Defence at
     a trial, I conclude those prospects would be poor. It does not necessarily follow that an
     injunction should be granted or an injunction granted in the terms presently sought by the
     Claimants as there is some substance in the submission that there has been no stated
     intention to call a strike irrespective of either the court's decision on this topic or indeed
     generally, and there has been no present inducement to break contracts of employment.
     But I recognise that the Westminster case was in the context of a first-stage duty, the

                                               -9-

                                    

notification of the ballot. There is a clear nexus between the failure to discharge that first-
stage duty and the employer's ability to respond to it, either by making preparations in the
event that a strike is called or indeed making representations to those who are to be
balloted as to why in the particular circumstances they might not want to vote one way as
opposed to another. It is clearly, therefore, not a technical or immaterial breach in the
present case. No undertaking of course has been offered by the union in this case not to
consider calling a strike on the basis of this ballot and for reasons previously given I
consider that the prospects of a strike and the consequences of an unlawful strike are
sufficiently imminent to consider this is an application properly made and deserving of
relief. My present conclusion is that it would be sufficient relief for the Claimants to be
granted relief that would restrain the Defendants from calling a strike notice on the basis
of this ballot, but obviously I will hear counsel on the matter.

                                 ________________




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