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New provision from Trade Union Act 2016 used in court.

Written by Mark Reed on 25 September 2017

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Thomas Cook Airlines Ltd v British Airline Pilots Association [2017] EWHC 2253 (QB).

Facts

Section 229(2D) which is the new provision within the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) coming into force in March 2017, under the Trade Union Act 2016, has offered credence to a dispute between the British Airline Pilots Association (BALPA) and Thomas Cook Airlines Ltd about their employees. The section provides that a voting paper in a ballot for industrial action must indicate a period within which the industrial action is expected to take place. In this scenario, a voting paper stated "It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8th September 2017 to 18th February 2018 which the members voted in favour of.

Thomas Cook argued that this terminology did not comply with s229(2D) and applied for an interim injunction to stop the strike. 

Court’s Decision

At a hearing, the High Court refused the injunction, by stating that BALPA had not failed to comply with s229(2D) and the judge asserted "It seems to me that the word "expected" in the subsection has to be read in the context of all of the uncertainties which are inherent in a trade dispute" and that "planning industrial action strategy is necessarily both a dynamic as well as a reactive process. It is one which is very much contingent upon (a) various factors which are not known before the ballot papers are sent out to members and (b) other variables which are entirely outside the control of the defendant, for example Thomas Cook's response to the ballot result. All of the above considerations go into the mix in planning the intensity and frequency of the industrial action. These are things that we only sensibly know after the ballot has actually taken place and as the negotiations develop."

He deduced a final remark, by adding "the subsection does not specify the level of detail into which the union needs to go, provided that there is a statement in the voting paper which complies with the subsection. One thing which the subsection does not require the trade union to do is to identify specific dates on which industrial action is to be taken, rather than the period within which it is expected to take place."

Conclusion

A decision which will not allow for much solidarity in an employer’s eyes, and offers a first glance at the potential for ongoing deliberation in future courts. It is clear, however, that the judge’s ruling in this case was based on a basic implied understanding within the provision that as long as the statement on the voting paper complies with the core meaning of the provision, in way of dates, an injunction will not stand.
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