London Underground Ltd v The Associated Society of Locomotive Engineers and Firemen

On an interim injunction application concerning proposed industrial action, the court must have regard to the likelihood that the union will establish statutory immunity at trial. The sufficiency of a union’s explanation of how ballot or strike figures were obtained under the Trade Union and Labour Relations (Consolidation) Act 1992 depends on the evidence and all the circumstances. Identical wording is not necessarily insufficient merely because it failed on different facts in other cases. An explanation may be sufficient where it accurately describes a recent, ballot-specific review and updating process, and the employer identifies no inaccuracy or practical disadvantage caused by lack of detail. An injunction should not be granted to restrain industrial action which is likely to be lawful.

London Underground Ltd applied for an interim injunction restraining ASLEF from inducing breaches of employment contracts and requiring it to cancel proposed strike action on Boxing Day 2010. The dispute concerned whether ASLEF’s notices preceding the ballot and the industrial action complied with the information and explanation requirements in sections 226A and 234A of the Trade Union and Labour Relations (Consolidation) Act 1992.

The parties agreed that the action was in furtherance of a trade dispute. The central issue was whether the notices sufficiently explained how the figures identifying the affected employees had been arrived at, so that ASLEF was likely to establish the statutory defence at trial.

1. Application dismissed. Under section 221(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, the court had to consider the likelihood that ASLEF would establish at trial a defence under section 219. The serious disruption which a strike might cause was not a reason to restrain action likely to be lawful.
2. The notices supplied the required lists and figures. The question was whether the accompanying explanation of how those figures were arrived at was sufficient. Following Metrobus Ltd v Unite the Union [2009] EWCA Civ 829, the explanation requirement serves both to give the employer information about the reliability of the figures and to discipline the union to undertake the necessary process properly.
3. Sufficiency was fact-sensitive. The explanation in this case accurately described information drawn from ASLEF’s membership database, which had been reviewed and updated for the ballot. The evidence did not establish any inaccuracy. The employer had not objected when the notices were received, requested clarification, or identified any investigation or action which it was unable to take because of the explanation.
4. The court distinguished the different factual circumstances in Network Rail Infrastructure Ltd v The National Union of Rail, Maritime and Transport Workers [2010] EWHC 1084 (QB) and in the London Midland case. The fact that similar wording had failed in those cases did not make the wording insufficient in every case. A very bald statement might be inadequate, but the explanation here was sufficient when assessed with the evidence.
5. The use of the word “auditing” was not misleading. It did not necessarily imply independent checking outside the union. On the accepted evidence, “auditing and updating” was a fair, though not ideal, description of the process undertaken.
6. ASLEF was therefore likely to establish its statutory immunity under section 219. The interim injunction was dismissed. Written submissions on costs or any consequential order were directed within 28 days.

Not stated in the judgment.