Case - University College London NHS Trust v UNISON

(1999) ICR 204,(1999) IRLR 31, Court of Appeal - John Hendy QC

A dispute concerning terms and conditions of employment between an unidentified third party to whom the employer was planning to transfer its business and existing and future employees was not a "trade dispute" within the meaning of s.244 Trade Union and Labour Relations (Consolidation) Act 1992. * Leave to appeal to the House of Lords refused.

Defendant union's appeal against the decision of Timothy Walker J on 15 September 1998 to grant the plaintiff employer interlocutory injunctive relief in order to prevent a series of strikes due to start on 21 September. The plaintiff was in the business of providing hospital services. A vast majority of the plaintiff's employees were members of the defendant union. The plaintiff intended to transfer parts of its business to a transferee consortium, which in turn was likely to transfer part of that business to other transferees. That would involve the transfer of current employees by the plaintiffs, and therefore, the Transfer of Undertakings (Protection of Employment) Regulations 1981 ('TUPE') were likely to apply. However, the defendant's members sought greater protection than that provided by TUPE. The defendant made a demand on the plaintiff for it to impose on transferees terms that would guarantee that the terms and conditions of employment and the collective bargaining arrangement of those employed and to be employed by the transferees would remain the same as, or equivalent to, the existing terms and conditions of employment and collective bargaining arrangement. The defendant had sought to achieve the guarantee for a period of 30 years. The plaintiff did not comply with the demand. In furtherance of the demand, the defendant organised a ballot for industrial action amongst its members employed by the plaintiff. The ballot took place on 17 August and 2 September 1998. The result was in favour of taking industrial action in furtherance of the demand. The defendant, in consequence, called for industrial action by its members who were employed by the plaintiff. On 15 September 1998, the plaintiff obtained an interlocutory injunction restraining a series of strikes by members of the defendant union which were due to commence on 21 September 1998. At the interlocutory hearing, the judge concluded that there was not a dispute about current terms and conditions and that the strike had a wholly political flavour. The defendant appealed contending that it had immunity from any relevant tort liability, pursuant to s.219 Trade Union and Labour Relations (Consolidation) Act 1992, by reason that it was acting in furtherance of a trade dispute within the meaning of s.244(1) of the Act which provided that: "trade dispute" meant a dispute between workers and their employer which related wholly or mainly to, inter alia, terms and conditions of employment or physical conditions in which workers were required to work and/or machinery for negotiation or consultation. That section also provided "other procedures"....including recognition by employers of the right of a trade union to represent workers in any such negotiations or consultation or in carrying out such procedures. The issue on appeal was whether or not the dispute was a "trade dispute" within the statutory meaning.


HELD: (1) Attention was drawn to the opening of s.244 of the 1992 Act which referred to a dispute between workers and their employer. That was the first requirement of a trade dispute. The second requirement was that the dispute had to relate wholly or mainly to one or more activities set out in the section. The third requirement was that the act for which protection was sought had to be carried out in contemplation or furtherance of a trade dispute. (2) The test to be applied in considering what was the appropriate action to take and whether or not to grant the injunction was that set out in the judgment of Lord Diplock in Duport Steels Ltd & Ors v Sirs & Ors (1980) ICR 161. (3) The court was not minded to conclude on the information before it that the dispute had only a political objective. That issue would be best determined at trial although it was unlikely that such a finding would have been made. (4) The court could not see how it was possible to apply the language of s.244 in a way which covered terms and conditions of employment of employees of a third party who had never been employed by the employer involved in the dispute. That was, in itself, fatal to the case which the defendant advanced on appeal. So far as existing employees were concerned the strike sought to achieve protection for them in relation to employment with an unidentified future employer. That did not readily fall within the language of s.244. (5) On the facts before the court, whilst it was true that a consequence of obtaining a guarantee from the plaintiff would be to give an ex-employee the security he required, that was not a dispute with which the plaintiff was wholly or mainly concerned about. It was a dispute about different employment with unidentified new employers. The proper application of s.244 was to employees already employed by the plaintiff. Accordingly, on the true application of the statutory provisions the proposed strike was not one subject to the protection of the 1992 Act.
Appeal dismissed.
* The House of Lords Appeal Committee refused an application by UNISON for leave to appeal in this case on 26 April 1999.
For proceedings in the European Court of Human Rights see Unison v United Kingdom (2002) (Admissibility Decision).
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