P (A Minor) v National Association of School Masters/Union of Women Teachers

A dispute between workers and their employer about whether workers may reasonably be required to perform particular work can relate to terms and conditions of employment under the Trade Union and Labour Relations (Consolidation) Act 1992. It need not be framed as a request to amend the employment contract. An accidental omission of eligible voters that was unlikely to affect the ballot result must be disregarded when applying sections 232A and 232B. The relevant time of the ballot is when ballot papers are sent, not the whole voting period. A worker may be induced to take part in industrial action by supporting the collective action, even without a direct request to that worker.

P, a pupil protected by an anonymity order under section 39 of the Children and Young Persons Act 1933, sought an order against his teachers’ union under section 235A of the Trade Union and Labour Relations (Consolidation) Act 1992. Union members had taken continuous action short of a strike by refusing to comply with a head teacher’s direction that P be taught in his normal class. Two eligible teachers had not received ballot papers, although they were included among those intended to take part.

Morison J held that the dispute concerned the teachers’ terms and conditions of employment and addressed the statutory ballot issue. The Court of Appeal considered whether the dispute was a trade dispute, whether the ballot defects removed statutory protection, and whether the omitted teachers had been induced to participate. A human rights argument was abandoned because it required a factual inquiry that could not be completed before P’s examinations.

Waller LJ delivered the leading judgment. Hale LJ and Sir Philip Otton agreed. The appeal was dismissed.

1. Trade dispute. The court must identify the real dispute and the parties to it. The ballot documents provide a fair starting point but are not conclusive if the dispute is in reality different. Here the dispute was between the teachers and the head teacher or governing body about whether it was reasonable to require the teachers to teach P in class. That related wholly or mainly to the teachers’ terms and conditions of employment under section 244(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992. The teachers’ view could qualify even if a court later found it unjustified.
2. The dispute was not an allocation-of-work dispute because the teachers were not concerned who would perform the work. The court found it unnecessary to decide whether the concerns also related to physical working conditions. BBC v Hearn [1977] ICR 685 did not establish that a dispute about the reasonableness of an employer’s instruction could never be a trade dispute. It concerned coercive interference where no employer-employee dispute had arisen.
3. Ballot. Conditions in section 232A were cumulative, but sections 232A(a) to (c) reflected section 227(1). Section 232B required an accidental failure to comply with section 227(1) to be disregarded where it was unlikely to affect the result. The legislative cross-reference to section 230(2A) in section 232B(2) was an error; the intended reference was section 230(2B), not section 232A. The amendments had not materially changed the previous law. The time of the ballot meant the point when ballot papers were sent, so the accidental omission of two teachers did not remove protection.
4. Inducement and result. A worker could participate by supporting the collective action and making clear that the worker would refuse the disputed work if asked. A direct request followed by an actual refusal was unnecessary. Since the action was protected, section 235A provided no cause of action. The appeal was dismissed with costs, a section 11 order was made against the Legal Services Commission, and permission to appeal to the House of Lords was refused.

• Court of Appeal: On 9 May 2001, the appeal from Morison J was dismissed unanimously. Costs were awarded and permission to appeal to the House of Lords was refused.
• Queen’s Bench Division: Morison J heard the claim on 4 April 2001 and gave judgment on 9 April 2001. The judgment under appeal held that the dispute was a trade dispute and addressed the effect of the ballot defects.