Thomas Cook Airlines Ltd v British Airline Pilots Association

For the purposes of an interlocutory injunction concerning industrial action, the court must assess the likelihood that the union will establish at trial a defence under the statutory protection for conduct in furtherance of a trade dispute. Under Trade Union and Labour Relations (Consolidation) Act 1992, section 229(2D), a voting paper need indicate the period within which industrial action is expected to take place. It need not specify particular strike dates or an exhaustive level of detail. The provision must be construed against the uncertainties inherent in trade disputes and in a way that remains workable. A stated period which corresponds prima facie with the proposed period of action may satisfy the requirement.

The claimant airline sought an injunction to restrain the respondent trade union from calling a strike in a dispute over pilots’ pay and conditions. The union relied on the statutory protection for acts in furtherance of a trade dispute and had conducted a ballot asking members whether they were prepared to take part in strike action.

The claimant argued that the voting paper failed to comply with the newly introduced section 229(2D) of the Trade Union and Labour Relations (Consolidation) Act 1992, because it stated that strike action would occur on dates to be announced over a specified period. The issue was whether it was more likely than not that the union had failed to comply with that provision.

1. Interlocutory test. By agreement, the ordinary American Cyanamid principles did not apply. Under section 221(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, and applying the guidance in RMT v Serco [2011] ICR 848, the question was whether it was more likely than not that the union had failed to comply with section 229(2D). If so, an injunction would follow; otherwise it would not.
2. Construction of section 229(2D). The voting paper stated that discontinuous strike action was proposed on dates to be announced over the period from 8 September 2017 to 18 February 2018. That prima facie indicated a period within which the industrial action was expected to take place. The provision did not require specific dates, or further detail of an undefined kind.
3. Purpose and workability. The paramount purpose was that union members should understand what they were being asked to approve. The stated period enabled members to make that decision. A construction requiring a union to predict the eventual course of a dynamic and uncertain trade dispute could produce vague and potentially unworkable requirements.
4. Result. The court was not finally determining compliance at trial, but considered it unlikely that the claimant would establish non-compliance. The application for an injunction was dismissed.