Govia Thameslink Railway Ltd v The Associated Society of Locomotive Engineers and Firemen

For statutory immunity to apply to industrial action, a union must comply strictly with the statutory ballot requirements. A prior communication may amount to a call for industrial action even if it does not use imperative language, particularly in a disciplined and unionised workplace. The later ballot need not concern action exactly co-extensive with the earlier call, provided the earlier action is industrial action to which the ballot relates. For an aggregate ballot, the voting constituency must comprise members directly affected by the relevant employer decision. A remote possibility of being affected is insufficient. Statutory provisions disregarding small accidental failures do not cure a breach of the aggregate-ballot requirements.

Govia Thameslink Railway Ltd sought an interim injunction restraining ASLEF from inducing drivers to breach their employment contracts by refusing to operate twelve-car trains on a driver-only basis on the Gatwick Express service.

Langstaff J had granted an injunction on 22 April 2016. ASLEF had subsequently conducted an industrial-action ballot, in which members voted in favour of action. The parties agreed that three issues required determination: whether ASLEF had made a prior call for action to which the ballot related; whether the ballot improperly included members at workplaces not affected by the dispute; and whether the earlier injunction should be discharged.

1. Prior call. The court held that GTR had a strong case that ASLEF’s communications of 4 and 5 April constituted a call to drivers to refuse to operate twelve-car Gatwick Express trains. In the context of the communications, their timing and the highly unionised environment, the messages were strongly arguable as a clear instruction, notwithstanding their presentation as information.
2. The court considered it at least arguable that a call under Trade Union and Labour Relations (Consolidation) Act 1992, section 233(3)(a), had to amount to the tort of inducing breach of contract. Knowledge of the contractual effect was arguable because ASLEF’s officers had either wilfully blinded themselves to the possibility of breach or were indifferent to it. Positive intention to cause breach was not required on the facts.
3. The phrase industrial action to which the ballot relates was given a broad meaning. The earlier call need not concern exactly the same form or extent of action as the later ballot. It was sufficient that both related to refusal to operate twelve-car driver-only trains on the Gatwick Express service.
4. Voting constituency. The dispute was principally about introducing twelve-car driver-only trains on the Gatwick Express. Only Gatwick Express drivers and certain Southern drivers who provided cover were directly affected. A remote possibility that Caterham drivers might exceptionally be required to operate such trains did not satisfy section 228A(2) or (5). The union’s reasonable but mistaken belief was insufficient.
5. The small-accidental-failure provision in section 232B did not apply to a breach of section 228A. The breach was substantive rather than technical, and the possible consequences of including the wrong workplace were not de minimis.
6. The statutory likelihood-of-success test favoured GTR on the first two issues. Damages were inadequate and the balance of convenience favoured maintaining the injunction because the likely disruption and public inconvenience outweighed the union’s asserted prejudice. GTR’s application was granted, and ASLEF’s application to discharge Langstaff J’s injunction was refused.

First-instance interim decision. Langstaff J had granted an injunction on 22 April 2016. Permission to appeal was refused by Langstaff J and an application to the Court of Appeal was refused by Christopher Clarke LJ on 25 May 2016.