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

For an interim injunction in a claim that a trade union induced breaches of employment contracts, the claimant must show a good arguable case that the employees were contractually obliged to obey the instruction, that the union’s conduct induced non-compliance, and that the union intended that result. Communications framed as factual information may nevertheless amount to inducement when viewed realistically in their industrial context. Collective agreements incorporated into employment contracts must be construed objectively and any restriction on otherwise broad managerial powers construed narrowly. Where damages would not adequately protect the public or the employer’s operations, the balance of convenience may justify an injunction.

The claimant, which operated Gatwick Express, sought an interim injunction restraining ASLEF from inducing drivers to refuse to operate 12-car trains on a driver-only operation passenger basis. The claimant alleged inducing breach of contract. ASLEF argued that the drivers’ contracts, including incorporated collective agreements, did not require them to operate such trains. It also argued that its communications merely stated that no agreement had been reached and that it had not intended to induce breaches.

The application was heard urgently before the claimant introduced replacement rolling stock. The central issues were whether the drivers were contractually obliged to comply, whether ASLEF’s communications constituted inducement, and whether ASLEF had the necessary intention.

1. Applicable test. The claim was governed by the tort of inducing breach of contract as explained in OBG Limited v Allan [2007] UKHL 21; [2008] 1 AC 1. For the interim application, the claimant had to establish a good arguable case, show that damages would be inadequate, and demonstrate that the balance of convenience favoured relief.
2. Contractual obligation. On the face of the Gatwick Express, Southern and Connex contracts, the employer could require a competent driver to operate a 12-car driver-only train, subject to the contractual qualification that an instruction must not be unreasonable. The relevant collective agreements, if incorporated, were to be construed objectively in their factual context. They were strongly arguable as referring to conductor provision during service disruption and to specified train classes, rather than restricting the regular extension of Gatwick Express driver-only operation from 10 to 12 cars. Any restriction modifying the employer’s otherwise broad contractual power would be construed narrowly. The reasoning was consistent with Bull v Nottinghamshire Fire and Rescue Authority [2007] EWCA Civ 240; [2007] ICR 1631.
3. Inducement and intention. Although ASLEF’s messages were expressed as statements that no agreement existed, it was realistically arguable that telling union members this in a workplace regulated by agreements was intended, or understood, as persuasion not to comply with management’s instruction. The claimant’s case on ASLEF’s actual intention was weaker, but remained properly arguable under OBG Limited v Allan, including the requirement that the defendant realise the contractual effect of its conduct.
4. Interim relief. The claimant had a good arguable case overall. The consequences for passengers and the claimant’s operations meant damages were inadequate. The balance of convenience favoured an injunction, with the precise form of order to be settled after hearing counsel.