English, Welsh & Scottish Railway Ltd. v National Union of Rail, Maritime & Transport Workers

Statutory notices under the Trade Union and Labour Relations (Consolidation) Act 1992 are construed objectively and in their factual and documentary context. The subjective intention of the union official and the recipient is irrelevant. Separate companies may both receive one valid notice where their industrial relations are conducted jointly, a common representative is authorised to act for both, and the notice and accompanying information identify employees of both. The statutory requirements remain important and require accurate notice to the right employer. They should not, however, be applied with excessive technicality where a reasonable recipient would understand the notice’s scope.

RMT appealed injunctions continued by Wilkie J, following injunctions granted by Gibbs J, restraining industrial action. The injunctions were based on alleged failure to comply with sections 226A and 234A of the Trade Union and Labour Relations (Consolidation) Act 1992.

EWS Ltd and EWSI Ltd were separate companies within the same group. Their industrial relations were conducted jointly under a partnership agreement, through the same industrial relations manager. RMT sent ballot and industrial-action notices addressed to that manager and referring to employees of the company. The central issue was whether the ballot notice was objectively a notice to EWSI as well as EWS.

Appeal allowed unanimously. The notice of ballot was validly given to both EWS Ltd and EWSI Ltd. The respondents were ordered to pay the appellant’s costs, and permission to appeal to the House of Lords was refused.

1. Objective construction. Lord Justice Waller held that the question under section 226A was whether the union had taken such steps as were reasonably necessary to ensure that the relevant employer received notice. The notice had to be construed objectively in its context. The subjective intention of the union’s general secretary was irrelevant, as was the subjective view formed by the recipient.
2. Contextual assessment. Although EWS and EWSI were separate legal entities, the partnership agreement treated them as one negotiating entity. Their industrial relations had consistently been conducted jointly. The same manager was authorised to negotiate and receive notices for both companies. The notice’s reference to employees of the company, read with the surrounding correspondence, therefore naturally covered both entities.
3. Attached information. The schedule accompanying the notice listed sites containing EWSI employees, including a site staffed exclusively by EWSI employees and others where EWSI employees formed a significant majority. This removed any remaining doubt that the notice concerned employees of both companies. Lord Justice Tuckey agreed that any contrary conclusion would take technicality too far, while emphasising that the statutory notice provisions retained their important protective function.
4. Section 234A. The court did not need finally to determine the validity of the subsequent industrial-action notices because the proposed action had been called off. Lord Justice Waller expressed the provisional view that, being in the same form as the ballot notice, they would qualify, although he recognised an argument to the contrary.

• Court of Appeal (Civil Division). On 15 October 2004, the court allowed the appeal unanimously and held that the ballot notice was valid for both companies: [2004] EWCA Civ 1539.
• Queen’s Bench Division. Gibbs J granted injunctions on 4 October 2004 in the absence of RMT. Wilkie J continued them on 8 October 2004, holding that the union had not given the required notices to EWSI Ltd.