EDF Energy v National Union of Rail Maritime and Transport Workers

Permission to appeal will ordinarily be refused where the dispute has become academic, particularly where the underlying industrial dispute has settled and the proposed respondent would incur the burden of resisting a theoretical appeal. The Court of Appeal will not give guidance for larger future disputes in the absence of a live issue. On the domestic issue, a ballot notice under the Trade Union and Labour Relations (Consolidation) Act 1992, section 226A, could properly be required to identify employee categories with sufficient focus, judged by what was reasonably practicable from the union’s information and the circumstances. The court treated itself as bound by Metrobus Ltd v UNITE. A defective notice could be restrained from further reliance, but the statutory issues were not finally determined.

EDF challenged an RMT ballot notice for strike action arising from a pay dispute. The notice described the employees as “engineers/technicians”, while EDF used more specific occupational categories. Blake J held the categorisation defective and restrained further progress towards a strike ballot.

On RMT’s renewed application for permission to appeal, the ballot notice could no longer support strike action and the industrial dispute had settled. The application raised domestic issues under section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992, an Article 11 challenge involving Metrobus Ltd v UNITE, and an argument that the injunction was premature. The central issue was whether any live and suitable basis remained for permission to appeal.

Application refused. Lord Justice Rix and Sir David Keene agreed on the outcome, but Sir David Keene adopted the narrower basis that the matter was academic.

1. The ballot notice was by then too late to support strike action, and the industrial dispute had been settled. The proposed appeal therefore concerned no live dispute. The Court of Appeal was not required to give theoretical guidance for larger future disputes or to impose on EDF the burden and expense of resisting an academic appeal. This was the common basis for refusing the application.
2. Lord Justice Rix considered that, on the particular facts, there was no reasonable prospect of success on the domestic statutory issue. The union could obtain more specific information about the employees’ functions, and “engineers/technicians” was not a reasonably sufficient categorisation. The earlier decisions in the London Underground case [2001] IRLR 228 and Westminster City Council v Unison [2001] IRLR 524 had provided guidance, although they concerned earlier statutory wording.
3. Lord Justice Rix further considered that the statutory purpose of the ballot notice included enabling the employer to make preparations, rather than merely contacting employees. He also rejected the argument that the injunction was premature. Once a defective notice had been given, further reliance on it would be unlawful, and the court had discretion to prevent that reliance. Sir David Keene expressed no view on the statutory construction issues, save that he was not attracted by the prematurity argument.
4. On Article 11, Lord Justice Rix held that RMT was bound by Metrobus Ltd v UNITE [2009] IRLR 85A. The Court of Appeal could not accept the submission that it had been wrongly decided. Applying K v Lambeth LBC [2006] 2 AC 465, a binding domestic precedent could not be set aside absent a later, clear and authoritative Strasbourg ruling necessarily and clearly inconsistent with it. No such basis was shown.

Order: application refused.

• Court of Appeal (Civil Division): On 26 January 2010, the renewed application for permission to appeal was refused. The decision is reported at [2010] EWCA Civ 173.
• Queen’s Bench Division: Blake J held that the ballot notice’s categorisation was defective and restrained further proceedings towards a strike ballot.