The Secretary of State for Education v National Union of Teachers (NUT)

A minister may seek an urgent interim declaration concerning the lawfulness of industrial action where there is a real legal dispute and determination is necessary in the public interest. The court should consider the likelihood of a statutory trade-dispute defence succeeding, even though the statutory provision governing injunctions does not expressly apply to declarations.

A dispute with a minister may qualify as a trade dispute if it relates wholly or mainly to employment matters and cannot be settled without the minister exercising a statutory power. The court must assess the union’s true predominant purpose objectively. A campaign to secure public funding may qualify where the evidence shows that the immediate objective is protecting workers’ pay, jobs or conditions. The balance of convenience may nevertheless require refusal of interim relief.

The Secretary of State for Education sought an urgent interim declaration that a one-day strike by members of the National Union of Teachers at sixth form colleges was unlawful. The teachers were employed by the colleges, not by the Secretary of State. The dispute arose from the level of public funding available to sixth form colleges and its alleged effect on pay, working conditions and employment.

The Secretary of State argued that there was no trade dispute with the colleges or with her, and that the union’s predominant purpose was political: securing increased funding for the sector. The NUT relied on the statutory trade-dispute protections in the Trade Union and Labour Relations (Consolidation) Act 1992. The issues were whether the court should entertain the interim declaratory application, whether a statutory defence was likely to succeed, and whether interim relief should be granted.

1. Jurisdiction and interim declarations. The court entertained the application. The principles governing bare declarations are not a rigid statutory code. There was a real dispute about legality, the issue was not academic, and urgent determination served the public interest because the strike would affect students, parents, colleges and the wider public.
2. Interim approach. Although section 221(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 concerns injunctions, the court should give proper weight, when deciding whether to grant an interim declaration, to the likelihood that a trade-dispute defence would succeed at trial, together with the other balance-of-convenience factors. The approach in NWL Ltd v Woods [1979] ICR 867 HL was relevant.
3. Dispute with the colleges. The NUT was unlikely to establish a trade dispute between the teachers and their employers. The evidence showed a dispute with the Secretary of State over funding, but no specific disagreement between the teachers and individual colleges. The possibility that funding came from outside the employers did not itself prevent a trade dispute, but it did not establish one on these facts.
4. Dispute with the Secretary of State. A dispute within section 244(2) could qualify where it related wholly or mainly to pay, jobs or working conditions and could not be settled without the Secretary of State exercising statutory powers under sections 14 and 16 of the Education Act 2002. Those powers could potentially support earmarked funding or funding without conditions intended to facilitate pay increases or protect employment.
5. Predominant purpose. The material question was whether the strike was principally intended to protect teachers’ employment interests by securing funding, or to preserve the sixth form college sector as an end in itself. The union’s own publications, ballot wording and leadership statements showed that protecting members’ pay, jobs and conditions was more likely than not the predominant purpose. A political dimension did not exclude an employment-related trade dispute.
6. The existing statutory limits on trade-dispute immunity were unlikely, at trial, to breach article 11 of the Convention. However, the severe disruption likely to result from the strike and the risk that a wrongly granted declaration would defeat effective industrial action outweighed the case for interim relief. The application was dismissed.