University College London Hospital NHS Trust v Unison

For statutory trade-dispute immunity, the dispute must be between workers and their employer and must relate wholly or mainly to a permitted subject, such as the workers’ own terms and conditions or negotiation machinery. A dispute cannot qualify merely because it seeks to secure terms for workers employed, or to be employed, by another employer. Existing workers’ concern about future employment may affect their terms and conditions, but the court must identify what the dispute is actually about. A political policy may coexist with a permitted employment objective, yet the permitted objective must predominate. Where a ballot combines protected and impermissible purposes and the voters’ motives cannot be separated, the ballot is invalid.

A hospital Trust appealed against an interlocutory injunction granted by Timothy Walker J on 17 September 1998. The injunction restrained strikes proposed by Unison during negotiations over a private-finance initiative hospital. The Union sought contractual guarantees preserving equivalent terms, conditions and collective-bargaining arrangements for staff transferred to the new operator, future recruits and subcontracted staff.

The central issue was whether the proposed strike concerned a trade dispute within section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992, so as to attract statutory immunity. The appeal also concerned the effect of the ballot’s inclusion of future employees.

The appeal was dismissed with costs. The injunction was properly granted because the proposed strike was not protected by the statutory immunity.

1. Section 244 required a dispute between workers and their employer, a dispute relating wholly or mainly to one or more specified matters, and an act done in contemplation or furtherance of that trade dispute. Only the first two requirements were in issue.
2. Per Lord Woolf MR, the court had to apply the statutory test identified by Lord Diplock in Duport Steels Limited v Sirs & Ors [1980] ICR 161: identify the category of protected acts defined by Parliament and decide whether the conduct fell within it. The court could not alter the statute because a strike might harm hospital patients.
3. A union’s opposition to a policy such as private finance may have both a political strand and a narrower aim of mitigating its employment consequences. The latter may satisfy section 244, but the permitted statutory purposes must be predominant. The dispute must be about those purposes, not merely caused by them.
4. The proposed guarantee for people who had never been employed by the Trust concerned the terms of employment of workers employed by a third party. It therefore fell outside section 244(1)(a) and section 244(5). For existing staff, the real dispute was principally about employment with an unidentified future employer, rather than their terms and conditions with the Trust.
5. The ballot expressly included future and subcontracted staff. Because the individual voters’ motives could not be identified or separated, the inclusion of an impermissible subject nullified the ballot. The Union could not rely on the statutory protection.
6. Lord Justice Judge agreed that protection may extend to disputes about future terms of current employment, but section 244 did not cover terms of a non-existent contract with a potential employer. Lord Justice Hutchison agreed with Lord Woolf MR’s reasons. Leave to appeal to the House of Lords was refused.

• Court of Appeal: Unison appealed from an interlocutory injunction granted by Timothy Walker J in the Queen’s Bench Division on 17 September 1998. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.