East Midlands Trains Ltd v National Union of Rail, Maritime and Transport Workers

A collective agreement incorporated into employment contracts must be construed as a whole, in its factual setting and with common sense. A contractual power to cancel rostered work is not confined to cases where staff are physically prevented from completing an entire journey or where a quantitative comparison shows extensive change. Where assigned work has become unworkable and no practical alternative exists, the employer may cancel turns and issue replacement diagrams to the extent reasonably necessary, provided it does not circumvent an express obligation or breach its duty of co-operation. Agreed links and certainty of working patterns remain important constraints. On that construction, an injunction was granted.

East Midlands Trains Ltd sought an injunction restraining the National Union of Rail, Maritime and Transport Workers from inducing or procuring breaches of the employment contracts of senior conductors and train managers. The dispute arose from planned engineering works closing Nottingham station and requiring changes to rostered work patterns.

Mr Justice Lewis refused the application, holding that the proposed changes revised rather than cancelled the relevant diagrams and therefore required agreement. The central issue on appeal was whether the collective agreements permitted East Midlands Trains, without staff agreement, to cancel existing turns of duty and issue replacement diagrams where the original work patterns had become unworkable.

Disposition

The appeal was allowed and an injunction was granted. The court proceeded on the basis that RMT had instructed staff to work to the original diagrams and that inducement of breach was conceded below.

1. Construction of the agreements. Collective agreements incorporated into contracts of employment are construed like other agreements. The court must give the words a fair meaning in the factual context known to the parties, read the agreement as a whole and adopt a common-sense approach. Ambiguity is not a prerequisite to considering the factual setting. This approach was supported by Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 at 912 and Adams v British Airways PLC [1996] IRLR 574.
2. Cancellation. The cancellation provisions in the Conductor’s Restructuring Initiative and the Mainline Services Collective Agreement had broad, undefined content. They could not be used to circumvent an express obligation to agree links, but they had to retain sensible contractual effect. The absence of a definition did not confine cancellation to a narrow class of emergencies. Ali v Christian Salvesen [1996] ICR 25 supported the conclusion that a collective agreement may deliberately leave contingencies uncovered.
3. Unworkability. Cancellation could occur where the assigned work could not be completed for a reason affecting it and no practical alternative existed. It was unnecessary for staff to be physically prevented from completing the whole original journey. Nor was cancellation to be determined by a quantitative or qualitative threshold comparing the old and new diagrams. The decision whether cancellation was necessary was a function of management.
4. Limits on the power. The power was limited by the agreed movement in starting times, limits on turn length, the express terms of the collective agreements and the employer’s duty of co-operation. That duty had a gap-filling role. East Midlands Trains would have to use contractual dispute-resolution mechanisms if failure to do so breached that duty, but the court left open whether those mechanisms were incorporated into the employment contracts.

Section 221(2) of the Trade Union Labour Relations (Consolidation) Act 1992 required consideration of the likelihood of a defence under section 219, but did not prevent an injunction once the contractual issue was resolved. The court did not separately determine the Article 11 issue or whether the industrial action fell outside the ballot, those matters being conceded or governed by binding authority.

1. Court of Appeal (Civil Division): allowed the appeal and granted an injunction. [2013] EWCA Civ 1072
2. High Court of Justice, Queen’s Bench Division: Mr Justice Lewis refused East Midlands Trains Ltd’s application for an injunction in a judgment dated 31 July 2013.