ISS Mediclean Ltd v GMB

On an application to restrain industrial action, the court must consider the likelihood that the union will establish at trial that the action is protected by statutory immunity. The legislation must be construed practically and workably, having regard to the effective right of workers to withhold their labour. Courts should not introduce additional restrictions by implication into the detailed statutory code.

A dispute about pay may remain a trade dispute even where the employer depends on funding from another body. The continued existence of a dispute is a question of fact and degree, assessed from the perspective of the average reasonable trade union member. Where the union is likely to establish the statutory immunity, an interim injunction should be refused.

ISS Mediclean Limited applied urgently for an interim injunction restraining GMB from taking strike action scheduled for 24 to 26 November 2014.

The ballot complied with the statutory requirements, and the first industrial action had commenced within the required period. The principal issues were whether the earlier industrial action had ended because most matters had allegedly been resolved, and whether the remaining dispute concerning Agenda for Change pay arrangements was a trade dispute under the Trade Union and Labour Relations (Consolidation) Act 1992.

1. The application for an interim injunction was refused. Under section 221 of the Trade Union and Labour Relations (Consolidation) Act 1992, the court had to consider the likelihood that GMB would establish at trial that the proposed industrial action had the protection of the statutory immunities.

2. The statutory requirements governing industrial action form a detailed code. The court adopted a practical and workable approach to construction, having regard to the effective right of union members to withhold their labour. It was inappropriate to impose further restrictions by implication. The approach in RMT v Serco Limited [2011] ICR 848 and British Airways v Unite (No.2) [2010] ICR 1316 supported that conclusion.

3. Whether industrial action had ended was a question of fact and degree. The relevant question was whether the average reasonable trade union member, looking at the matter at or shortly after an interruption, would regard the industrial action as having come to an end. Applying that approach, the claimant had not shown that the dispute had ended. The union’s evidence indicated that the matters said to have been resolved remained disputed.

4. The continuing Agenda for Change dispute concerned pay and therefore fell within the statutory concept of a trade dispute. A dispute between an employer and its workforce about pay could qualify even where the ultimate funding for an increase might come from another source. The employees and GMB regarded the differential in pay rates as central to their dispute with the employer.

5. Collective agreements were not legally binding unless expressly made so, pursuant to section 179 of the 1992 Act. That did not prevent the dispute from being between the employer and its workforce or from relating to terms and conditions of employment under section 244.

6. GMB was likely to establish the statutory immunity. The application for an interim injunction was therefore refused.