Ryanair DAC v British Airline Pilots' Association

An interim injunction restraining industrial action is ordinarily determined on the merits. Under section 221 of the Trade Union and Labour Relations (Consolidation) Act 1992, the court assesses the likelihood that the union will establish statutory immunity under section 219. Where that defence is more likely than not to succeed, an injunction should be granted only in a very exceptional case.

The statutory entitlement to vote is distinct from the opportunity to vote. The latter is qualified by reasonable practicability. A reasonable postal-ballot cut-off for late recruits may therefore be lawful. Alternatively, a minor and inconsequential defect may be disregarded under the de minimis principle. Ballot notices need explain how figures were calculated, but need not reconcile figures appearing in separate documents.

Ryanair sought an interim injunction preventing the British Airline Pilots’ Association from calling pilot members to take strike action. The application challenged the legality of a ballot and subsequent notices under Part V of the Trade Union and Labour Relations (Consolidation) Act 1992.

The principal challenges concerned a cut-off date which excluded 12 late recruits from receiving voting papers, an alleged failure to explain differing figures in the result and strike notices, alleged ambiguity about the timing of strike action, and the description of the issues in dispute. The court considered whether those matters were likely to defeat the union’s section 219 statutory immunity.

1. The application was dismissed. An interim injunction to prevent a strike is normally determined on the merits, having regard under section 221 of the Trade Union and Labour Relations (Consolidation) Act 1992 to the likelihood that the union will establish the section 219 defence. Where that defence is more likely than not to succeed, an injunction should be granted only in a very exceptional case.

2. Sections 227 and 230(2) create distinct requirements. Section 227 confers an entitlement to vote on members whom it is reasonable for the union to believe will be induced to take industrial action. Section 230(2) separately requires, so far as reasonably practicable, that those entitled receive voting papers and an opportunity to vote. The inability to give every entitled member an opportunity to vote does not necessarily deny the entitlement or invalidate the ballot.

3. The seven-day cut-off was reasonable in the context of a postal ballot and the applicable Code of Practice. Excluding a small number of late recruits from the opportunity to vote therefore did not breach section 227.

4. Alternatively, any failure was de minimis. The court applied the approach in National Union of Rail, Maritime and Transport Workers v Serco Ltd [2011] ICR 848, including its approval of British Airways plc v Unite the Union [2010] ICR 1316. Minor and inconsequential infringements should not invalidate a ballot.

5. Section 234A(3)(a)(i) required an explanation of how the figures in the notice were calculated, but did not require a further explanation of discrepancies between separate documents.

6. The ballot paper was not ambiguous when read as a whole. Headline points describing the material disputes were sufficient where the reasonable reader had the surrounding factual material, following Argos v Unite the Union [2017] EWHC 1959.