Westminster City Council v UNISON

A dispute is a trade dispute under section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992 when it is predominantly about a matter within the statutory definition. Where workers oppose the transfer of their employment to a new employer, their state of mind is central. Direct evidence from participating workers and the ballot question will ordinarily provide the best evidence of the dispute’s subject matter.

A ballot notice complies with section 226A if, assessed practically and in its particular context, it gives useful information enabling the employer to identify the affected part of its workforce. “Category” is a broad expression referring to the general type of workers. A description of a small, identifiable unit may suffice, particularly where the employer can readily ascertain the individuals concerned.

Westminster City Council proposed to contract out the functions of its Assessment and Advice Unit to a private company. UNISON members accepted that the service would be externalised but wanted to remain employed by the Council. Following a ballot, UNISON proposed industrial action to persuade the Council to retain the affected staff.

A deputy High Court judge granted the Council an interlocutory injunction. He concluded that the dispute was predominantly about public policy rather than employment and that the ballot notice gave insufficient information about employee categories.

UNISON sought permission to appeal. The central issues were whether the dispute was a trade dispute within section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992, and whether the notice satisfied section 226A.

1. Appeal allowed unanimously; injunction discharged. Pill LJ, with whom Mantell and Buxton LJJ agreed, held that the only conclusion properly available on the evidence was that the dispute was a trade dispute. Permission to appeal was granted, and the interlocutory injunction was discharged.

2. A dispute falls within section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992 when it is predominantly about a listed employment matter. The proposed transfer would terminate the workers’ employment with the Council and substitute a private employer. The ballot paper, witness statements and contemporaneous correspondence established that retaining the Council as employer was the genuine and practical subject of the dispute.

3. The workers’ acceptance that the service itself could be externalised was significant. Their demand could have succeeded without changing the Council’s privatisation policy. Earlier expressions of concern about privatisation and conflicts of interest therefore did not convert the later employment dispute into a public-policy dispute.

4. The deputy judge had failed to address important direct evidence from the participating workers and substantial contemporaneous documents. A judge may reject untested evidence, but must demonstrate that it has been considered and give reasons for rejecting it. Because that had not occurred, the Court of Appeal could reassess the evidence and draw its own conclusion.

5. The ballot notice satisfied section 226A. It identified approximately 45 employees as A&A workers, stated their workplace and referred to the DOCAS subscription system, through which the Council could readily ascertain their identities. The statutory purpose was to enable the employer to know which part of its workforce was invited to take action and to plan accordingly.

6. Buxton LJ added that “category” is a broad expression referring to the general type of workers. Its requirements must be assessed in the circumstances of the particular strike, sensibly and consistently with the legislation’s industrial-relations purpose. Detailed job descriptions, managerial status and sub-unit allocations were unnecessary where the notice identified a small unit and effectively gave access to a nominal roll.

1. Court of Appeal: Permission to appeal was granted and the appeal was allowed unanimously. The interlocutory injunction was discharged: [2001] EWCA Civ 443.

2. High Court: His Honour Judge Brunning, sitting as a deputy High Court judge, granted Westminster City Council an interlocutory injunction restraining the proposed industrial action. No citation is stated in the judgment.