Learning & Skills Council v The Public and Commercial Services Union

For an interlocutory injunction restraining industrial action, Trade Union and Labour Relations (Consolidation) Act 1992, s.221(2), requires the court to consider the likelihood that the defendant will establish at trial a defence under s.219.

Whether a trade dispute exists under s.244 is an objective question. The court may consider the parties’ states of mind as evidence of whether an objective disagreement exists; doing so does not convert the test into a subjective one. A dispute may remain genuine even where an employer has given assurances, if the union reasonably regards them as insufficient. Where a genuine trade dispute is more likely than not to establish a statutory defence, an injunction should be refused.

The Learning and Skills Council sought an interlocutory injunction to prevent the Public and Commercial Services Union from calling members out on strike. The proposed action concerned concerns arising from government announcements about public-sector job reductions, administrative savings, pay and working arrangements.

The Council argued that no trade dispute existed because its employees were not civil servants, its restructuring had already taken place, and it had provided assurances addressing the union’s concerns. The Union maintained that those assurances did not resolve the issues. The central questions were whether a trade dispute existed and whether the proposed action was in furtherance of it.

1. Statutory approach. Under s.221(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, the court had to consider the likelihood that the Union would establish at trial a matter affording a defence under s.219. The parties accepted that whether the action was in furtherance of a trade dispute was subjectively assessed, and that the Union genuinely believed this was so.
2. Existence of a dispute. Whether a trade dispute exists under s.244 was an objective question. The formulation quoted from Conway v Wade required an impending or likely objective event or situation, rather than a matter existing only in the mind. Nevertheless, the parties’ states of mind were relevant evidence because a dispute necessarily involves disagreement between persons. Considering that evidence did not make the test subjective (paras [7]–[9]).
3. Application. The government announcements gave the Union legitimate concerns about their possible effects on employees of a non-departmental public body. The Council’s previous restructuring did not make further effects incapable of arising. Nor was the Union required to treat assurances that there were no current proposals as finally removing the dispute. The correspondence and meeting records showed a genuine continuing disagreement about whether the assurances were adequate (paras [14]–[26]).
4. Disposition. The court found that a genuine trade dispute existed and that the Union was more likely than not to establish a s.219 defence at trial. In light of s.221(2), it was inappropriate to grant the injunction. The application was refused (para [27]).