Anglian Windows Ltd v The GMB

On an application for an interlocutory injunction against threatened industrial action, the court must consider the balance of convenience together with the likelihood, including its degree, that the trade union will establish statutory immunity at trial. A likelihood of success on immunity is an important factor, but it is not automatically decisive. Where it is more likely than not that the union will establish immunity, the employer’s anticipated losses carry less weight. The statutory ballot provisions require the electorate to comprise those whom the union reasonably believes will be induced to take part in the industrial action. Separate ballots are required only where the members entitled to vote have different workplaces. The adequacy of employee categories in the ballot notice is assessed by reference to the information reasonably practicably available to the union.

The claimant sought an injunction restraining the defendant trade union from taking threatened industrial action arising from a dispute about pay rates at one production unit. The claimant alleged that the union’s ballot failed to comply with the statutory requirements concerning the electorate, separate workplace ballots and the description of employee categories in the ballot notice.

The union relied on statutory immunity for acts done in contemplation or furtherance of a trade dispute. The application required the court to assess the likelihood of that defence succeeding at trial and the balance of convenience.

1. The application for an injunction was refused. Under section 221(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, the court had to consider the balance of convenience, including the likelihood and degree of likelihood that the union would establish a defence under section 219. The approach in NWL Ltd v Woods [1979] ICR 867 was applied.
2. The electorate under section 227 was not confined to employees directly involved in the pay dispute. It comprised all members whom the union reasonably believed would be induced to take part in the proposed industrial action. The union might have been mistaken about the extent to which particular employees were affected, but there was no dispute that some were affected.
3. Section 228 required separate ballots only if the members entitled to vote had different workplaces. The relevant workplaces could be the claimant’s Norwich site as a whole, rather than each individual production unit. The court considered it more likely than not that the union’s contention would succeed at trial, having regard to the common site, the employment documentation and the surrounding circumstances.
4. The ballot notice complied with section 226A if its categorisation of employees was as accurate as reasonably practicable in light of the information in the union’s possession. The description of employees as production workers was arguably insufficiently detailed, but the evidence and the notice indicated that this was probably the best categorisation the union could provide on the available information. The factual dispute could not be resolved finally on the interlocutory application.
5. It was therefore more likely than not that the union would establish immunity from suit. That substantially reduced the weight given to the claimant’s anticipated financial loss and customer delays. The substantial majority supporting strike action also indicated that a further ballot would probably produce the same result. The claimant’s application was refused. Costs and ancillary matters were reserved for further argument.