Metrobus Limited v Unite the Union

The Court of Appeal dismissed the union's appeal against an interim injunction preventing strike action. The court applied the statutory requirements in the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended) and held that the union had failed to comply with key procedural obligations: a free-standing duty to notify the employer of the result of the ballot as soon as reasonably practicable (section 231A) and the obligation to supply, or enable the employer to deduce, specified information about the employees to be balloted or affected, together with an explanation where required (sections 226A(2)(c) and 234A(3)(a)). The court considered and rejected the submission that those statutory requirements were disproportionate under article 11 ECHR and therefore required a different construction under the Human Rights Act 1998. A small arithmetical error in the strike notices was treated as trivial and not fatal, but the absence of timely notice of the ballot result and the lack of the required explanatory material were held to be material non-compliance that justified the injunction.

Background and facts. Unite (the defendant) balloted Metrobus employees in August 2008 and notified Metrobus of the ballot and then of proposed 24-hour strike dates. The ballot ran from 18 August to 1 September 2008; the scrutineer produced a favourable result and the union gave strike notices on 3 September and 2 October 2008. Metrobus sought and obtained an interim injunction from Mr Justice King on 9 October 2008 restraining the union from calling a strike. The union appealed.

Procedural posture. Appeal from the Queen's Bench Division (King J, HQ08X03948). Permission to appeal was given on the primary grounds by Sedley LJ; the Court of Appeal heard the matter on 1–2 July 2009 and handed down judgment on 31 July 2009.

Nature of the claim / relief sought. Metrobus sought injunctive relief to restrain the union from calling industrial action on the basis that the union's conduct was "not protected" under the statutory immunity regime in TULRCA 1992 because of failures to comply with the balloting and notice requirements.

Issues framed. The court identified and decided these main issues:

• Whether the union complied with the obligation in section 231A to inform the employer of the ballot result "as soon as reasonably practicable";
• Whether the ballot notice and strike notices complied with the information requirements in section 226A(2)(c) and section 234A(3)(a), in particular the duty to provide an explanation of how figures for non-check-off members were arrived at;
• Whether trivial numerical inaccuracies in the notices vitiated them;
• Whether the statutory requirements should be read down or interpreted differently to be compatible with article 11 ECHR and the Human Rights Act 1998.

Court's reasoning and conclusions. The court analysed the relevant statutory scheme in detail (sections 219, 226, 226A, 226B, 230, 231, 231A, 231B, 232B, 234 and 234A and related code of practice). It held that section 231A imposes a free-standing, time-sensitive obligation to notify the employer of the ballot result independently of any later decision to call industrial action; in the circumstances the union did not act "as soon as reasonably practicable". The court also held that, for non-check-off employees, the notices lacked the required explanation of how the figures were derived and so failed to meet the statutory content requirements. The court considered article 11 ECHR and relevant international and Community authorities but concluded that the statutory scheme and its requirements were within the State's margin of appreciation and not disproportionate; there was therefore no need to read the provisions down under section 3 of the Human Rights Act. The court treated the typographical arithmetic errors in the strike notices as de minimis and not fatal, but that did not affect the overall conclusion. The judge's exercise of discretion in granting the injunction was not disturbed.

Separate reasoning noted: one Lord Justice (Maurice Kay LJ) expressed a different view on the construction of the alternative information route in section 234A(3)(a)(ii) (taking a broader view that the union could choose the "deduce" approach for mixed check-off/non-check-off situations) but agreed with the ultimate outcome to dismiss the appeal. The majority judgment (Lloyd LJ) rejected the union's constructions and upheld the High Court's injunction.

Appeal dismissed. The Court of Appeal agreed with the High Court that the union had not complied with statutory balloting and notice requirements: it failed to inform the employer of the ballot result "as soon as reasonably practicable" under section 231A and failed to provide the explanatory material required for non-check-off employees under sections 226A(2)(c) and 234A(3)(a). The court held these requirements were compatible with article 11 ECHR and did not require a different interpretation under the Human Rights Act 1998. The interim injunction was therefore properly granted and the appeal dismissed.

Appeal from the High Court of Justice, Queen's Bench Division (Mr Justice King) (HQ08X03948) arising from an interim injunction made on 9 October 2008. Permission to appeal on the principal grounds granted by Sedley LJ; Court of Appeal judgment delivered [2009] EWCA Civ 829 (31 July 2009) dismissing the appeal.