London Underground Ltd v The Associated Society of Locomotive Engineers and Firemen (Rev 1)

For an interlocutory injunction restraining industrial action, the relevant question is whether the union is likely to establish a defence under Part V of the Trade Union and Labour Relations (Consolidation) Act 1992. The court must have regard to the statutory protection of the effective right to withhold labour and give the provisions a likely and workable construction.

Section 227 does not confine the ballot constituency to members who will personally withdraw their labour. It may include members whom the union reasonably believes will be induced to take part in the industrial action, including by supporting the strike or attending picket lines. The Industrial Action Code of Practice is not an enactment for the purposes of section 231B.

London Underground sought an urgent interim injunction restraining ASLEF from calling industrial action on Boxing Day 2011. It alleged that the ballot included members whom ASLEF could not reasonably have believed would be called upon to take part in the action, contrary to section 227 of the Trade Union and Labour Relations (Consolidation) Act 1992. It also alleged breaches of the statutory duties concerning the independent scrutineer and its report.

The ballot had produced a substantial majority in favour of action. ASLEF contended that members not rostered to work might nevertheless be induced to support the industrial action. The central issues were the proper meaning of taking part in the industrial action and the scope of the scrutineer's statutory duties.

1. Application refused. The court refused the interim injunction.
2. The applicable interlocutory test was not the ordinary American Cyanamid test. Under section 221 of the Trade Union and Labour Relations (Consolidation) Act 1992, the court had to consider the likelihood that ASLEF would establish a defence under Part V. If the action was likely to be protected by section 219, it had to proceed. The statutory scheme required a likely and workable construction and recognised the importance of an effective right to withhold labour.
3. The expression in section 227 concerning members whom the union reasonably believed would be induced “to take part” in the industrial action was wider than members who would themselves withdraw their labour in breach of contract. The distinction between taking part in industrial action and being on strike was material. A member not rostered to work could take part by associating with the strike, supporting its aims or attending a picket line. The court considered the reasoning in Bolton Roadways Ltd v Edwards [1987] IRLR 392 persuasive and likely applicable.
4. On the evidence, ASLEF had reasonable grounds to believe that all the balloted members might be induced to take part in the proposed action. The likely conclusion at trial was also that the contemplated action was not limited to Boxing Day. Either conclusion was fatal to the section 227 challenge at the interlocutory stage.
5. The scrutineer issue failed. The argument based on the alleged section 227 breach was parasitic on Issue 1. The Code of Practice was not an enactment for section 231B purposes, so the scrutineer was not required to report on an alleged breach of it under that provision. The additional argument that the report was premature was also rejected.
6. The court recognised the potential public disruption but held that the result was required by Parliament's statutory framework.