National Union Of Rail, Maritime & Transport Workers v Midland Mainline Ltd

Trade union immunity from tort liability for industrial action depends on strict compliance with the statutory ballot and notice requirements. For section 227(1), the relevant questions are who the union believed would be induced to take industrial action and whether that belief was reasonable. The concept of inducement is broad and may include members whom the union did not specifically ask to strike. Members within the class whom the union seeks to call out may require a ballot where it is reasonably foreseeable that union instructions and workplace pressure will induce them to participate. Small accidental failures may be disregarded under section 232B, but significant omissions are not inconsequential. At an interlocutory stage, the court must assess the likelihood that the union will establish its statutory immunity at trial.

Midland Mainline Ltd obtained an interim injunction restraining the National Union of Rail, Maritime and Transport Workers from inducing operational train crew to take strike action. The union sought permission to appeal, arguing that its pre-strike ballot complied with the Trade Union and Labour Relations (Consolidation) Act 1992. The first-instance judge held that the union had not satisfied the statutory preconditions for immunity because a significant number of operational train crew had not been balloted.

The Court of Appeal granted permission, considered additional evidence and permitted additional grounds supporting the injunction. The central issues were the scope of the class entitled to vote, the effect of accidental failures, the address and notice requirements, and the approach required when deciding whether to grant an interlocutory injunction.

1. Appeal dismissed. The union failed, on the material before the court, to show a sufficient likelihood of establishing at trial that it had complied with the statutory preconditions for immunity.
2. Section 227(1) requires the court to ask who the union believed, at the time of the ballot, would be induced to take part in the industrial action and whether that belief was reasonable. The union’s intention to ask a particular member personally is not decisive.
3. Where a union calls upon a designated class to take industrial action, it may reasonably be expected that some members of that class who did not receive ballot papers will nevertheless be induced to participate. This may occur through the union’s call, the conduct of colleagues and the member’s own response to the dispute. Such members should have been accorded entitlement to vote.
4. Section 232B is directed to small accidental failures unlikely to affect the ballot result. It could cover the isolated error and, on the evidence available, probably the misplaced ballot papers. It could not cure the substantial omission of members from the class whom the union’s conduct was likely to induce.
5. The obligation under section 230(2) is qualified by reasonable practicability. The union must use what is reasonably practicable for a union to send ballot papers to the appropriate address. That assessment includes the union’s systems for recording notified changes of address; ignorance of an unnotified change may, in an appropriate case, satisfy the requirement.
6. Under section 221(2), an interlocutory judge must have regard to the likelihood that the party claiming trade-dispute immunity will establish at trial the matters necessary to rely on section 219.
7. The court also considered that the pre-strike notice point had force: a notice stating that all operational train crew would be called out could be misleading if the union intended to induce only a narrower group. The court encouraged employers and unions to use ACAS for confidential membership checks.
8. The appeal was dismissed with agreed costs of £8,827, with £10,000 payable on account of the costs below within 21 days. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): [2001] EWCA Civ 1206. Appeal from an interim injunction granted by His Honour Judge Langan QC. Appeal dismissed with costs.