Birmingham City Council v UNITE the Union & Anor

For an interim injunction against industrial action, Trade Union and Labour Relations (Consolidation) Act 1992, sections 221 and 219 require the court to focus principally on the likelihood that the union will establish statutory immunity at trial. The court must identify the union’s genuine reasons for acting. Section 222 removes protection only where one reason is the belief that the employer is failing to discriminate against a non-member. A demand for parity with workers who received a payment is not, without more, a demand for preferential treatment of union members. The historical purpose of section 222 and the consequences of the industrial action cannot replace the statutory inquiry into the reasons for the action. Where immunity is more likely than not to be established, an injunction should be granted only in a very exceptional case.

Birmingham City Council sought interim injunctions restraining Unite and UNISON from organising continuing industrial action by waste-service employees. The unions sought payments equivalent to sums paid to GMB members, whom they believed had been treated more favourably.

The Council argued that section 222(1)(b) of the Trade Union and Labour Relations (Consolidation) Act 1992 removed the protection otherwise provided by section 219 because the action sought preferential treatment for union members. The unions contended that their purpose was to obtain parity and to remedy alleged discriminatory treatment of their members.

The court also considered whether delay should bar relief, but that issue did not require determination. The central question was whether the statutory immunity was likely to be established at trial.

1. Interim injunction test. The application was dismissed. Under section 221(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, the court had to give particular weight to the likelihood that the unions would establish the section 219 protection at trial. The ordinary questions of adequacy of damages, balance of convenience and public convenience were subordinate to that statutory consideration.
2. Meaning of section 222. The relevant inquiry was the reason, or one of the reasons, for which the unions acted. The evidence indicated that Unite and UNISON genuinely sought equal payments for workers who had not received them. Their purpose was not to secure more favourable treatment for their members than for non-members, nor to enforce union membership.
3. The fact that the unions made demands on behalf of their own members did not alter the character of the demand. The evidence showed that they did not object to equivalent payments being made to non-members or members of other unions. A construction which treated the consequences of the action as its reason, or extended section 222 far beyond its closed-shop context, was not a likely or workable construction.
4. The statutory heading and historical context provided some assistance but could not displace the natural and ordinary meaning of the operative words. The court therefore considered it more likely than not that section 222 would not remove the section 219 protection at trial.
5. Since this was not the very exceptional case in which an injunction should be granted despite the likely establishment of immunity, interim relief was refused. The court did not determine the separate delay issue.