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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Thames Cleaning and Support Services Ltd v United Voices of the World & Anor (Rev 1) [2016] EWHC 1310 (QB) (02 June 2016) URL: https://www.bailii.org/ew/cases/EWHC/QB/2016/1310.html Cite as: [2016] EWHC 1310 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THAMES CLEANING AND SUPPORT SERVICES LIMITED |
Claimant |
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- and - |
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(1) UNITED VOICES OF THE WORLD (2) PETROS ELIA |
Defendants |
____________________
Giles Powell (instructed under the Direct Public Access scheme) for the Defendant
Hearing date: 31 May 2016
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Crown Copyright ©
Mr Justice Warby:
The application
"procure, organise, and/or facilitate a picket at [Wood St] save to the extent the picket complies with (a) section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 [("TULRA")] and (b) the Code of Practice on Picketing 1992 [("the Code")]".
Issues
"C's principal concern is to prevent mass picketing at 100 Wood Street including the "threaten[ed] large and potentially violent picket where members of the public with no involvement in a trade dispute are encouraged to attend".
"The defendants submit that C has misunderstood and confused protest, which is lawful and is not picketing (proposed in the email dated 11 May 2016 [C's bundle pp 50-51]), with picketing; and that its application is an attempt to restrain lawful protest, freedom of speech and assembly. The defendants do not and have not proposed to picket unlawfully or to act unlawfully."
Facts
"In the spirit of International Workers' Day UVW is proud to confirm that as well as continuing to fight for trade union rights and a living wage at Top Shop, the cleaners at the Barbican Centre, the Science Museum and 100 Wood Street have all decided to take official strike action over proposed redundancies, refusal to pay a living wage and refusal to provide occupational sick pay.
The times are changing.
The time for justice has come.
Up the workers!"
"Firstly, UVW were not seeking to negotiate. As such any reference to a negotiation is a red herring.
Secondly, the presence or absence of a recognition agreement is wholly irrelevant as to whether an employer talks, negotiates or consults with a trade union, all of which are always advisable for the sake of harmonious industrial relations…
… Fourthly, you have failed to provide a satisfactory response to our concerns regarding Thames Cleaning's proposed unlawful redundancies, and you are paying below the London Living Wage which currently stands at £9.40 per hour. This failure has led to a trade dispute situation…
… We will be balloting our members at 100 Wood Street for industrial action…
…I can confirm that UVW remains available for discussions, through the services of ACAS."
"Subject: URGENT: Cleaners to strike for a living wage and against unfair dismissals at 100 Wood Street (Notice of ballot for industrial action) …
… On behalf of the cleaners at 100 Wood Street, please find attached for your urgent attention notice of ballot under 226A of the Trade Union and Labour Relations (Consolidation) Act 1992…
…We will also be engaging in regular, disruptive and high profile direct actions at 100 Wood Street, in order to raise awareness amongst the many companies that have offices at 100 Wood Street, about Thames Cleaning's unfair, unnecessary and unlawful dismissal of over half the cleaners at 100 Wood Street and Thames Cleaning's refusal to pay the cleaners a wage they can live on, otherwise known as the London Living Wage which is only currently £9.40 per hour.
I can confirm that UVW remains available for discussions, through the services of ACAS. If you would like to pursue this please contact me directly.
In the meantime, please peruse the videos in the links below which show a small selection of some of our recent demonstrations against unfair redundancies, trade union victimisation and refusal to pay a living wage, amongst other things."
"Our client has also passed to us copies of your recent emails to them which you have chosen to copy to their client and the tenants at 100 Wood Street outlining threats of "regular, disruptive and high profile direct action at 100 Wood Street". The union's Facebook page also makes similar threats dating from 1st May 2016 which predates any contact with our client when it is stated that "the cleaners at …100 Wood Street have all decided to take official strike action over proposed redundancies…" The union have throughout its communications with our client attempted to deliberately interfere with, intimidate, disrupt and damage our client's relationship with its client at 100 Wood Street and their respective tenants.
It is our view that the union's threats made to our client go beyond notice of or an intention to hold a lawful picket. Further, the activities of the union outlined above and which pre-date the notice will not have statutory immunity normally granted to trade unions.
In view of this, should the union proceed with the proposed ballot and/or any strike action, our client will not hesitate to seek an injunction without further notice to you in relation to any industrial action…"
"… Your client's client … has a right to know if your client is making unnecessary and unlawful redundancies, and is creating an industrial dispute by doing so which will result in regular pickets and protests of your client's client's premises. It is not for an employer or an employer's lawyer, no doubt to your disappointment, to decide how and when a trade union may communicate with an employer's client or anyone else of that matter.
You allege that we have throughout our communication with your client attempted to "interfere with, intimate, disrupt and damage your client's relationship with its client at 100 Wood Street" This allegation is vague, unsubstantiated and vehemently denied.
You allege that our alleged threats to your client go beyond notice of or an intention to hold lawful picket. Firstly, no threats have been made. As such, your allegation is, again, founded on a fallacy.
Secondly, protest activity, either as part of a strike, or outside of formal industrial action, but nevertheless organised as part of the industrial dispute, is still lawful. Furthermore, if a worker is not picketing but protesting, then there is no distinction between a protester who acts in an industrial relations context and any kind of other protester, and as you will be aware the right for individuals to protest peacefully is guaranteed under the rights of freedom of expression and freedom of peaceful assembly that are enshrined in Articles 10 and 11 of the ECHR.
You mention a Facebook page from 1st May. However, that post has no legal significance and therefore no response is warranted."
"1. The union will comply with the Code of Practice in relation to industrial action;
2. Any picket is limited to the four employees involved in the dispute together with their official trade union representative;
3. That the union and/or picket will not trespass or cause obstruction at 100 Wood Street;
4. That the union and/or picket will not cause or create any public order offences pursuant to the Public Order Act 1986 (as amended.)"
"Subject: PRESS RELEASE: Cleaners threatened with injunction over strike action for living wage at 100 Wood Street
PRESS RELEASE FOR IMMEDIATE RELEASE:
Cleaners being balloted for strike action over job cuts and the London Living Wage at 100 Wood Street have been threatened with an injunction unless they promise to turn away solidarity on their picket line…
… Realising UVW had, in fact, being fully compliant Thames Cleaning quickly turned to threatening to seek an injunction by the close of business today, Wednesday 28th May, unless UVW agreed to provide an undertaking to restrict the picket solely to the workers on strike plus one trade union official.
The cleaners, therefore, have essentially being given an ultimatum to wither actively turn away solidarity from the public that they might receive on their picket line or risk an injunction which, if successful, might render the picket unlawful
Petros Elia, UVW's General Secretary, says "trying to make our members choose between a small lawful picket and a large unlawful picket is completely unacceptable. It is not for the employer to decide the size of a picket and it's a damning indictment of the growing arrogance and ruthlessness of employers, especially in the cleaning sector. It's outrageous that an injunction is even being contemplated…
…UVW members will not be bullied out of their human rights, and will not be bullied out of the fight for justice. The strike will go on."
"This is an attempt to undermine the right to protest. I and many other interested members of the public will no doubt be turning up on the day of the strike to speak to the cleaners and other employees in the building. No injunction can stop that."
"(1) That the Respondents be restrained forthwith whether by itself or by its employees, officers including the Second and third Defendants, agents or otherwise howsoever, from inciting, instructing, inducing, procuring, persuading, assisting, encouraging, organising, financing and/or facilitating picketing involving the commission of an unlawful act or acts at 100 Wood Street London EC2V 7VN or on any other premises of the Claimant (in particular interfering with contracts by unlawful means), and which is not rendered lawful by statute, lawful picketing being defined as picketing: (i) For the purpose of peacefully persuading any person employed by the Claimant to abstain from working; and (ii) only at the pickets' own place of work (or in the case of a trade union official at or near the place of work of a member of his trade union whom he is accompanying and whom he represents); (iii) by not more than six pickets at the entrance to 100 Wood Street and/or any other entrance to the respective work places of such person or persons picketing; and …"
The legal framework
"(1) It is lawful for a person in contemplation or furtherance of a trade dispute to attend—
(a) at or near his own place of work, or
(b) if he is an official of a trade union, at or near the place of work of a member of the union whom he is accompanying and whom he represents,
for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working.
…
(3) In the case of a worker not in employment where—
(a) his last employment was terminated in connection with a trade dispute, or
(b) the termination of his employment was one of the circumstances giving rise to a trade dispute,
in relation to that dispute his former place of work shall be treated for the purposes of subsection (1) as being his place of work.
(4) A person who is an official of a trade union by virtue only of having been elected or appointed to be a representative of some of the members of the union shall be regarded for the purposes of subsection (1) as representing only those members; but otherwise an official of a union shall be regarded for those purposes as representing all its members."
"(3) In any proceedings before a court … any Code of Practice issued under this Chapter by the Secretary of State shall be admissible in evidence, and any provision of the Code which appears to the court, tribunal or Committee to be relevant to any question arising in the proceedings shall be taken into account in determining that question."
"§C49: No immunity from crimes: "Among other matters, it is a criminal offence for pickets (as for others):
- to use threatening, abusive or insulting words or behaviour, or disorderly behaviour within the sight or hearing of any person - whether a worker seeking to cross a picket line, an employer, an ordinary member of the public or the police - likely to be caused harassment, alarm or distress by such conduct;
- to use threatening, abusive or insulting words or behaviour towards any person with intent to cause fear of violence or to provoke violence;
- to use or threaten unlawful violence;
- to obstruct the highway or the entrance to premises or to seek physically to bar the passage of vehicles or persons by lying down in the road, linking arms across or circling in the road, or jostling or physically restraining those entering or leaving the premises;
…
- to engage in violent, disorderly or unruly behaviour or to take any action which is likely to lead to a breach of the peace;
- to obstruct a police officer in the execution of his duty.
§E48: Risk of excessive numbers: "Violence and disorder on the picket line is more likely to occur if there are excessive numbers of pickets. Wherever large numbers of people with strong feelings are involved there is a danger that the situation will get out of control, and that those concerned will run the risk of committing an offence, with consequent arrest and prosecution, or of committing a civil wrong which exposes them, or anyone organising them, to civil proceedings.
§E49: Numbers can give rise to intimidation or harassment: "This is particularly so whenever people seek by sheer weight of numbers to stop others going into work or delivering or collecting goods. In such cases, what is intended is not peaceful persuasion, but obstruction or harassment-if not intimidation. Such a situation is often described as "mass picketing". In fact, it is not picketing in its lawful sense of an attempt at peaceful persuasion, and may well result in a breach of the peace or other criminal offences.
§E50: Keep demonstration and picket separate: "Moreover, anyone seeking to demonstrate support for those in dispute should keep well away from any picket line so as not to create a risk of a breach of the peace or other criminal being committed on that picket line. Just as with a picket itself, the numbers involved in any such demonstration should be conducted lawfully. Section 14 of the Public Order Act 1986 provides the police with the power to impose conditions (for example, as to numbers, location and duration) on public assemblies of 20 or more people where the assembly is likely to result in serious public disorder; or serious damage to property; or serious disruption to the life of the community; or if its purpose is to coerce.
§E51: Pickets should be limited to six or less: "Large numbers on a picket line are also likely to give rise to fear and resentment amongst those seeking to cross that picket line, even where no criminal offence is committed. They exacerbate disputes and sour relations not only between management and employees but between the pickets and their fellow employees. Accordingly pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate."
§E57: Functions of organiser of picket: "The other main functions of the picket organiser should include ensuring that:
- the pickets understand the law and are aware of the provisions of this Code, and that the picketing is conducted peacefully and lawfully;
…
- workers from other places of work do not join the picket line, and that any offers of support on the picket line from outsiders are refused;
- the number of pickets at any entrance to, or exit from, a place of work is not so great as to give rise to fear and resentment amongst those seeking to cross that picket line (see paragraph 51 in Section E of this Code)."
"(2) Where—
(a) an application for an interlocutory injunction is made to a court pending the trial of an action, and
(b) the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute,
the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party's succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) or section 220 (peaceful picketing)."
"Where … the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.
… it was clearly prudent of the draftsman of [s 17] to state expressly that in considering whether or not to grant an interlocutory injunction the court should have regard to the likelihood of the defendant's succeeding in establishing that what he did or threatened was done or threatened in contemplation or furtherance of a trade dispute.
… Judges would, I think, be respecting the intention of Parliament in making this change in the law in 1975, if in the normal way the injunction were refused in cases where the defendant had shown that it was more likely than not that he would succeed in his defence of statutory immunity …"
Discussion
(1) It is axiomatic that any injunction must make clear to those at whom it is aimed precisely what they are prohibited from doing. The verbs used in the draft order are clear enough. Everyone knows what "organising" means. But the noun "picket" is not defined in law, nor in the draft order, nor have I been provided with any clear reference point by which a reader of this injunction could ascertain with clarity what is meant by it. This is not a theoretical or abstract point. A major strand of the defendants' case, reflecting the correspondence, is that they are entitled to encourage, facilitate or organise a "protest" or "demonstration". Each side has accused the other of confusing two different concepts in its approach to this case. On one view, something that is a demonstration is by definition not a picket. If that were right, the injunction sought would not achieve what the claimants wish it to achieve. Review of online definitions does not reveal a consensus on this issue. A government website states "A picket line is where workers and union reps ('picketers' or 'pickets') stand outside a workplace to tell other people why they are striking." Another online definition of "picket" does not confine it to workers, and embraces protest: "a person or group of people who stand outside a workplace or other venue as a protest or to try to persuade others not to enter during a strike."
(2) It is inherently undesirable for an injunction to define what is prohibited by reference to some external document. This is so even if that document is accessible to the public, as are TULRA and the Code. Ideally, the injunction will itself contain everything a person needs in order to guide their conduct and comply with the court's order.
(3) More importantly, perhaps, an injunction which prohibits conduct which is not in accordance with the Code lacks certainty. The Code is not law, nor does it contain "black letter" provisions. It is guidance, which is to be taken into account by decision-makers in specified situations. The point can be illustrated by taking the provisions of para E51 as an example. They set a maximum of 6 pickets, at any one entrance or exit. But the claimant's skeleton argument for this hearing suggest that the lawful limits for picketing include "up to 6 pickets in total including members and officials". The defendants say there are 9 qualifying individuals and three entrances to Wood St. Up to 18 pickets would in principle be legitimate. But the defendants could not be confident of compliance with the order if they encouraged as many as six to attend any one entrance, because the Code says that "frequently a smaller number will be appropriate."