Law Report: Proposed strike was not a trade dispute
Friday Law Report: 16 October 1998
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Your support makes all the difference.16 October 1998
University College London Hospitals NHS Trust v Unison
Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Hutchison and Lord Justice Judge) 13 October 1998
A DISPUTE concerning terms and conditions of employment between an unidentified future employer and future employees was not a "trade dispute" within the terms of section 244 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Court of Appeal dismissed the appeal of Unison against the granting of an interlocutory injunction to prevent strike action following a ballot of its members at University College London Hospital.
The hospital trust was in the process of negotiating with a consortium under the "private finance initiative scheme", an arrangement whereby private companies erected and managed new hospitals for National Health Service trusts.
The negotiations would result in union members presently employed by the trust being transferred to the employ of the consortium at the new hospital. The union had sought to persuade the trust to enter into a contractual arrangement with the consortium to ensure that union members working for the consortium would be guaranteed terms and conditions of employment equivalent to those enjoyed by existing employees of the trust.
That guarantee was designed to benefit not only employees who were transferred from the trust to the consortium, but also those workers employed by the consortium who had not previously been employed by the trust. The membership of the consortium was not certain. The trust considered that to enter into such an arrangement would be wholly impractical.
The union gave the trust notice of a ballot in relation to the following trade dispute:
The failure of the trust to agree that TUPE [Transfer of Undertakings (Protection of Employment) Regulations 1981] protection should be written into the hospital new build PFI project, for the duration of the contract.
As a result of the ballot, the overwhelming majority of union members were in favour of strike action, which was due to start on 21 September 1998. The trust was granted an interlocutory injunction to restrain the strike action, the judge holding that it was unlikely that the union would establish that the strike was a trade dispute protected by section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992.
He found, inter alia, that the dispute was not about terms and conditions of employment at all, but about terms and conditions of contracts yet to be entered into between the trust and the new employers; and that, in any event, a reference in the ballot paper to future employees and sub-contracted staff did not fall within the definition of "worker" in section 244(5) of the Act. The union appealed.
John Bowers QC and Charles Ciumei (Beachcroft Stanley) for the trust; John Hendy QC and Damian Brown (John Clinch, Legal Department, Unison) for the union.
Lord Woolf MR said that section 221 of the 1992 Act provided that the court, in exercising its discretion whether or not to grant an interlocutory injunction against a party claiming to be acting in contemplation or furtherance of a trade dispute, should have regard to the likelihood of that party's succeeding at the trial of the action.
Together with the objective of obtaining a guarantee for existing employees, the union was seeking to secure the same guarantee for employees who had never been employed by the trust. Having regard to the definitions of "trade dispute", "employment" and "worker" in section 244(1) and (5) of the Act, it was not possible to apply those subsections in such a way as to cover the terms and conditions of employment of such employees.
Moreover, it was unlikely that the union could take advantage of statutory immunity from action with regard to the existing employees of the trust, since, although it was true that the consequence to them of obtaining the guarantee sought would be to give them added security, that security was sought from an employer who had not yet been identified.
Kate O'Hanlon,
Barrister
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