In re P (a minor by his mother and litigation friend) (Appellant)

The House of Lords dismissed the appeal. The court held that the teachers' refusal to teach the pupil fell within the statutory concept of a "trade dispute" in the Trade Union and Labour Relations (Consolidation) Act 1992, section 244(1), because it related to the teachers' terms and conditions of employment (specifically what they were required to do). The court also held that an inadvertent omission to send ballot papers to two members did not necessarily invalidate the ballot: "entitlement to vote" must be understood by reference to section 227(1) read with the balloting provisions (including section 230(2)) and the statutory toleration of accidental, immaterial errors in section 232B. The court therefore construed sections 232A and 232B so as to preserve a workable ballot regime and to avoid an absurd result whereby trivial accidental omissions would deprive unions of statutory immunity under section 219.

This is an appeal from the Court of Appeal ([2001] EWCA Civ 652) following a first instance hearing by Morison J. The appellant, a pupil called P, sued the National Association of Schoolmasters/Union of Women Teachers under section 235A of the Trade Union and Labour Relations (Consolidation) Act 1992, seeking injunctive relief on the basis that the union had induced unlawful industrial action which reduced the quality of services to him.

The facts were that teachers at a voluntary aided school objected to teaching P after incidents of misconduct. The union balloted its members at the school and, after a majority vote, instructed them to take industrial action by refusing to teach P. Two members who had recently joined the school did not receive ballot papers because the union’s head office had not been notified of their move. The ballot result would not have been affected by their votes.

The House was asked to decide (i) whether the teachers' actions were "in contemplation or furtherance of a trade dispute" for the purposes of section 219 (the protection against tort actions for inducing breach of contract), and (ii) whether the ballot complied with the statutory requirements in Part V of the 1992 Act, in particular in the light of sections 232A and 232B which were introduced by the Employment Relations Act 1999.

The court reasoned that the dispute plainly related to the teachers' contractual obligation to teach P and thus fell within the composite phrase "terms and conditions of employment" in section 244(1). The court observed that it was artificial to draw fine distinctions between a general rule and its application to a particular pupil where the dispute concerns what workers are obliged to do.

On the balloting issue the court concluded that "entitlement to vote" must be ascertained by reference to the constituency defined by section 227(1) and by the practical balloting provisions (for example section 230(2)). An accidental failure to send a ballot paper does not necessarily mean that a person was not accorded entitlement to vote, because section 230(2) qualifies the duty to send papers "so far as is reasonably practicable" and section 232B allows small accidental failures to be disregarded. The House therefore construed the 1999 amendments so as to avoid the result that trivial, accidental omissions would nullify immunity.

The court expressed the hope that Parliament might remedy the drafting errors exposed by the litigation but concluded that, on an interpretation that preserves the protection Parliament intended, the union’s industrial action was protected and the appeal should be dismissed.

Appeal dismissed. The House held that the teachers' refusal to teach P constituted action in contemplation or furtherance of a trade dispute because it related to their terms and conditions of employment, and that the inadvertent omission to send ballot papers to two members did not invalidate the ballot when the balloting provisions (including the reasonable practicability qualification in section 230(2) and the disregard for accidental, immaterial errors in section 232B) are properly construed together with section 232A.

First instance: trial before Morison J (trial on written statements). Court of Appeal: [2001] EWCA Civ 652 (judgment of Waller LJ). Appeal to the House of Lords: [2003] UKHL 8.