Milford Haven Port Authority v Unite

Under section 234A(3)(b) of the Trade Union Labour Relations Consolidation Act 1992, one notice may cover both continuous and discontinuous industrial action. The statutory disjunction applies to each identified action, rather than necessarily to the notice as a whole. The notice must clearly classify each action and accurately state when it will occur. An employer should not have to infer which action applies at a particular time, because the notice must enable it to respond to and plan for disruption. The court left open whether a union may notify alternative forms of action and choose between them later.

The Port Authority employed pilots and launch crews who were members of Unite. Following a dispute concerning pension arrangements, the union balloted members and served notices of proposed industrial action. The notices described both continuous and discontinuous action, including a two-day stoppage and other measures beginning at the same time.

The Port Authority obtained an urgent injunction from Sweeney J in the Queen’s Bench Division. The union appealed, arguing that the notices complied with the statutory requirements. During the appeal the parties reached agreement, but the union pursued the issues of principle. The central questions were whether one notice could cover both forms of action and whether the notice was defective because the actions were said to begin simultaneously.

Leveson LJ gave the leading judgment. Laws LJ and Lloyd LJ agreed.

1. Disposition. The formal order was that the appeal be dismissed. Because the parties had reached agreement, the injunction granted by Sweeney J was discharged. The court did not determine the validity of the fresh notices subsequently served.
2. One notice covering different forms of action. The statutory protection under the Trade Union Labour Relations Consolidation Act 1992 depended on compliance with the notice requirements. Section 234A(3)(b) was disjunctive only in relation to each particular industrial action identified in the notice. A single notice could therefore cover both continuous and discontinuous action, provided that the notice clearly stated which description applied to each action and otherwise complied with the legislation.
3. Purpose and clarity. The notice provisions were construed consistently with their purpose: enabling the employer to identify the affected workforce, seek to dissuade employees from taking action, and plan to avoid or minimise disruption. That approach was consistent with Westminster City Council v Unison [2001] EWCA Civ 443 and the explanation in NURMT v London Underground [2001] IRLR 228, which had been followed in Metrobus Limited v Unite the Union [2009] EWCA Civ 829.
4. Accuracy of timing. The notice appeared to require members to perform lesser continuous measures while simultaneously taking part in an all-out stoppage. It should have stated the intended position accurately. The employer should not have to rely on inference or assumption to decide which action would operate at which time.
5. Issue left open. The court left open whether a union could give notice on an alternative basis, reserving a later choice between continuous and discontinuous action. Laws LJ considered that question to require fuller argument.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 400, the court held that one notice could cover both continuous and discontinuous action, but that the intended timing had to be stated accurately. The injunction was discharged following agreement, and the formal order was appeal dismissed.
2. Queen’s Bench Division: Sweeney J granted an urgent injunction on 17 February 2010, accepting the Port Authority’s objections to the notices.