Ministry of Justice v The Prison Officers' Association

Section 127 of the Criminal Justice and Public Order Act 1994 creates an autonomous statutory tort prohibiting inducements to prison officers to take industrial action. “Withholding of services as a prison officer” includes services performed in that capacity before the proposed withholding, whether or not they are contractually required. The court must assess the likely meaning and effect of a union circular from the perspective of a hypothetical reasonable prison officer, considering the document as a whole and its context. A concerted withdrawal of essential prison services may objectively be action likely to put safety at risk. The implied obligation of faithful service applies to unreasonable performance or interpretation of duties within the contractual scope; it does not ordinarily apply to refusal to perform tasks outside that scope.

The Ministry of Justice sought declarations and final injunctive relief against the Prison Officers’ Association concerning Circular 21/2017. The Circular instructed members to withdraw from specified roles and additional work, including first aid, ACCT assessment, control and restraint duties, detached duty, overtime and Payment Plus.

An interim injunction had previously required withdrawal of the Circular. The central questions at trial were whether the Circular induced withholding of services, whether section 127 covered non-contractual services, whether the proposed action was likely to put safety at risk, whether it induced breaches of discipline or the implied obligation of faithful service, and what relief should follow.

1. The claim succeeded. The Circular was to be read as a whole and assessed by asking how it would have been read and acted upon by a hypothetical reasonable prison officer possessing general knowledge of the employment relationship, contractual terms and governors’ powers. In context, the instruction to withdraw from “voluntary” roles was unqualified, apart from the separate treatment of Payment Plus. It would have been understood as an instruction not to perform those services even if a governor later instructed performance. The Circular therefore induced withholding of services and breaches of discipline.
2. Section 127 of the Criminal Justice and Public Order Act 1994 creates an autonomous, self-contained statutory tort. The phrase “withholding of services as a prison officer” is not confined to contractually obligatory services. It includes any services which the prison officer had been carrying out in that capacity before the proposed withholding. The court declined to insert words limiting the provision to express or implied contractual obligations.
3. The proposed concerted withdrawal also amounted to action likely to put the safety of prisoners and staff at risk under section 127(1A)(b). The risk was objectively assessed. Immediate logistical disruption could not readily be avoided by issuing blanket instructions, and prolonged operation at minimum staffing levels would produce an impoverished regime and unacceptable risks.
4. The “work to rule” authorities did not assist the Ministry on the implied-term issue. Secretary of State for Employment v ASLEF, [1972] ICR 19, British Telecommunications plc v Ticehurst, [1992] ICR 393, and Burgess v Stevedoring Service Ltd, [2002] 1 WLR 2838, established that the relevant implied obligation concerns performance or interpretation of duties within the contractual scope. It did not extend to refusal to perform genuinely non-contractual voluntary tasks.
5. The Ministry was entitled to declarations and a final injunction restraining the POA from inducing, authorising or supporting the specified forms of industrial action or breaches of discipline. The POA was ordered to pay the Ministry’s costs. Permission to appeal was refused.

First-instance decision. The court refused the defendant permission to appeal.