Case - English, Welsh & Scottish Railway v. NURMTW

[2004] EWCA Civ 1539, Court of Appeal - John Hendy QC, Oliver Segal QC
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The appellant trade union (R) appealed against the continuation of an injunction granted in favour of the respondent companies (X and Y) restraining the taking of industrial action.

X and Y were rail freight operating companies. X had provided management services, including management of industrial relations, for Y. The industrial relations of both X and Y had been conducted jointly under a partnership agreement, which had referred to them jointly as "the company" and had provided the relevant basis for negotiating industrial relations. X's corporate industrial relations manager (S) had also been the industrial relations manager of Y. R was one of several trade unions recognised by the respondents and had been covered by the partnership agreement. In August 2004 a dispute arose between R and the respondents and correspondence ensued. Letters that had passed between R's general secretary (C) and S had been headed with a reference to a "Breakdown in Industrial Relations with [X]", and had referred to "your company" and "the company". However, it was common ground that the communications had referred to both respondents. R then issued a notice of ballot under the Trade Union and Labour Relations (Consolidation) Act 1992 s.226A addressed to S in his capacity as the corporate industrial relations manager of X. The s.226A Notice was accompanied by a letter which stated that it had been in furtherance of the "Breakdown in Industrial Relations" communications, and attached information that listed sites at which members were to be balloted. Some of those sites had either been sites exclusively employing Y's employees or a majority of Y's employees. The respondents argued that R had failed to give notice in accordance with s.226A for Y's employees, since the notice had referred specifically to X alone. That argument was accepted by the judge who found that, as C had believed that all R's members had been employees of X, his subjective intention must have been that he did not intend to issue the s.226A Notice to Y. Therefore, the judge held that the chance of R establishing a s.219 defence was extremely remote. The judge accordingly continued an injunction imposed without notice restraining R from taking industrial action.

R argued that the subjective intention of C had been irrelevant; the notice had to be construed objectively in the context of the negotiations, the form of title used in the correspondence, the partnership agreement and the terms used therein, and the schedule attached to the s.226A Notice which had included sites exclusively or predominantly employing Y's members. Thus, R submitted that the question should have been whether a person in the position of S as the corporate industrial relations manager for both X and Y would have thought that the notice had been for both companies.

HELD: R had taken such steps as had been reasonably necessary to give the respondents notice of an intention to ballot its members employed by both X and Y. R had been dealing with two companies which, under the partnership agreement, had been treated during the course of industrial relations as one negotiating entity. Further, it had been clear that in the past X had been treated as representing both companies in the context of negotiating in relation to employment of staff in both companies. The management of X had in effect also been the management of Y. The corporate industrial relations manager of X had acted for both, and there had been no distinction between the two companies. Further, S, in that position, had been authorised to receive notices on behalf of both. In the light of those facts, the form of notice had to be construed objectively. The s.226A Notice had been addressed to S, and someone in his position could not have said that the notice had simply been addressed to him in his role as corporate industrial relations manager of X alone. What had to be asked was whether someone in the position occupied by S when the s.226A Notice had been served, and in the context of the negotiations leading up to the notice, would have appreciated that the notice had been issued to both companies. In the circumstances of the instant case, and in the context of the negotiations and the schedule attached to the s.226A Notice, a reasonable employer would have considered that it had been served with a s.226A Notice of an intention to ballot members employed by both companies. Accordingly the injunction was discharged.

Appeal allowed.

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