Employment Cases Update

London Underground Limited v The Associated Society of Locomotive Engineers and Firemen [2011] EWHC 3506 (QB)

Date published: 23/12/2011

Application for interim injunction to prevent strike action on Boxing Day. Application refused.

The applicants argued for the injunction on two principal grounds: a) that the defendant union had balloted members who could not have in any event been able to strike as they were not rostered to work on the day; and b) that the ballot scrutineer had failed to carry out their duties properly. Further, as submitted by the applicant, the ballot had concerned a strike on Boxing Day only but after the results were announced the Union said that a further three days of action had been agreed. In that case the result of the vote may have been different.

In this judgment Eder J identifies the main issue is that of the scope and effect of s227 of TULRCA 1992. He finds that, at trial, it was likely that the court would conclude that their intended action was not solely limited to Boxing Day, largely on the written evidence of the general secretary of the defendant. He then considers the wording of section 227 and concludes broadly that the insertion of the words to "take part in" used in the statute does not mean that the person balloted has to take industrial action, citing Bolton Roadways in support of that conclusion where Scott J had observed

"Whether an employee is taking part in strike action is … a question of fact. Whether an employee's activity represents a breach of his obligation to attend work, may be relevant to the question whether he is taking part in a strike, but it is not in our view, an essential ingredient. We would take, as an example, the case of an employee who is for the time being on holiday or away sick. That employee by reason of his holiday entitlement or his sickness would not be in breach of his contractual obligation to work; but if he associated himself with the strike, attended at the picket line or took part in the other activities of the strikers with a view to furthering their aims, he would, in our view, be capable of being held to be taking part in the strike. Any other view would be to make nonsense of the plain language of the phrase "taking part in the strike or other industrial action". The phrase is not "on strike"; a person on holiday is not "on strike", he is on holiday. But he may nonetheless be taking part in strike action."

He therefore refused the application, rejecting the second issue, that the scrutineer should not have reported that there were no grounds to believe any requirements had been contravened, as a child of the first and so dismissed for similar reasons.

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Case No: IHQ/11/0903

Neutral Citation Number: [2011] EWHC 3506 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 22/12/2011

Before :

THE HONOURABLE MR JUSTICE EDER

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Between :

London Underground Limited (Claimant)

- and –

The Associated Society of Locomotive Engineers and Firemen (Defendant)

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Mr Bruce Carr QC and Mr Paul Gott (instructed by Eversheds) for the Claimant

Mr Oliver Segal QC and Mr Ben Cooper (instructed by Thompsons) for the Defendant

Hearing dates: 21 and 22 December 2011

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Judgment

Mr Justice Eder:

Introduction

1. The Claimant seeks an urgent interim injunction to restrain the Defendant from calling industrial action on Boxing Day ie 26 December 2011 based on the result of a ballot which closed on 14 December 2011 on the basis that:

a. Issue 1

Contrary to the provisions of section 227 Trade Union and Labour Relations (Consolidation) Act 1992 (the "Act"), entitlement to vote in the ballot was extended to persons whom the Defendant could not reasonably have believed would be called upon to take part in the industrial action. In short, the Claimant submits that the Defendant included in the balloting constituency a significant majority of its members who could not in due course be called on to take strike action on 26 December 2011 as they were not rostered to work on that day. Such persons fell into two main categories viz. (i) those working from depots which are open on Boxing Day but who are not actually rostered to attend for work; and (ii) those working at depots which are closed on Boxing Day (with the effect that none of the drivers based at such depots will be expected to attend for work). [An additional category consists of those on long-term sick or maternity leave. However, this category was relatively small and, as the Claimant conceded, can be ignored for present purposes.]

b. Issue 2

The Scrutineer failed in its duties, contrary to the provisions of sections 226B(1) and 231B and contrary to s226B(3) the Defendant failed to ensure that the Scrutineer carried out the functions conferred on it.

2. The matter came on urgently before the Court and I heard argument at very short notice on 21 and 22 December 2011. Given the urgency and with the agreement of both parties, I indicated my decision following argument at the end of the hearing on the morning of 21 December 2011 ie I refused to grant the injunction. This Judgment sets out my reasons for that decision. Given the limited time, I will limit this Judgment to what I consider to be the main issues.

Background facts

3. The current proposed industrial action relates to a dispute over payments to drivers for working on Boxing Day. The first round of strike action took place last year on Boxing Day 2010. No further dates were called despite the Defendant having made reference to that possibility in its section 234A notice served on 14 December 2010.

4. On 16 November 2011, the Defendant issued to the Claimant a notice under section 226A of the Act stating that its members were to be balloted on the "Boxing Day working dispute" and that those to be balloted were "All Train Operator and Instructor Operator members of ASLEF employed by you and paying their membership subscriptions by check off at [the listed depots]" as well as a further 789 members at listed workplaces who paid their subscriptions by direct debit. By the Claimant's calculations, this would amount to approximately 1950 voters in total.

5. On 14 December 2011, the Defendant sent to the Claimant notice of the ballot result as it is required to do under section 231A of the Act. This recorded that 998 people had voted and that 920 of them had voted in favour of strike action. The Defendant provided notice of the result to the Claimant by forwarding to it a copy of a letter from the Scrutineer which (a) set out the statutory information as to the numbers voting in the ballot and (b) purported to include the Scrutineer's report compiled pursuant to its obligation under section 231B of the Act. However, the Claimant submitted that the number of those voting in the ballot was approximately double the number that could potentially take part in the action, as only about 480 ASLEF members are scheduled to work on Boxing Day

6. In the run-up to the 2011 Ballot, the Defendant had communicated with its members as it is expected to do in accordance with paragraph 36 Code of Practice: Industrial Action Ballots and Notice to Employers (the "COP"), which paragraph provides as follows:

"A union should give relevant information to its members entitled to vote in the ballot, including (as far as is practicable):

* The background to the ballot and the issues to which the dispute relates;

* The nature and timing of the industrial action the union proposes to organise if a majority vote "Yes"

* ………………

In doing so, the union should ensure that any information it gives to members in connection with the dispute is accurate and not misleading." (emphasis added)

7. Mr Carr QC submitted that the information which the Defendant gave to its members was very clear as to the nature and timing of the proposed industrial action. In particular, on 14 November 2011, the Defendant posted on its website a clear statement to the effect that the ballot which was to take place shortly thereafter was one in which members would be asked to vote in favour of "industrial action on Boxing day". Information in identical terms was contained in the "ASLEF Locomotive Journal" for December 2011 – this publication, which is sent by post to all ASLEF members each month, is described on the Defendant's website as follows:

"The Journal keeps our members up to date on key issues within the rail industry as well as the trade union movement."

8. That this was the understanding of those who were actually being asked to vote is reflected, submitted Mr Carr QC, in certain materials put in evidence by the Claimant in which certain members of the Defendant have expressed a view on the issue. In particular:

a. 9 December 2011 – a blogger responsible for the blog "ASLEF shrugged" recording his reticence to vote in a ballot which did not affect him as he was not due to be working on the day of the strike.

b. 14 December 2011 – A London Underground driver, Brett Johnson recorded on the Defendant's Facebook page that members were "angry that they have been misled with the boxing day ballot. They say you have put additional strike days about the issue which was not made clear in the original ballot" Another driver, "Kev Parrot" concurs with the view expressed. (It appears that both these individuals are ASLEF members.)

9. The reference in the Brett Johnson posting to "additional strike days about the issue" arises in the following circumstances:

a. On 12 December 2011, the Claimant wrote to the Independent Scrutineer (Electoral Reform Services Limited) ("ERSL") (copied to the Defendant) raising its concerns about the way in which the right to vote had been extended to members who would not be working on Boxing Day and therefore would not be participating in the proposed strike action;

b. On 13 December 2012, the Defendant wrote to ERSL in response to the Claimant's letter of 12 December, stating that "It is for ASLEF Executive Committee to determine what action if any will be called in the light of the ballot outcome. The Executive Committee [of the Defendant] have not yet determined the action." Mr Carr QC submitted that this suggestion appears wholly at odds with what had been communicated to members prior to the ballot opening which was clearly and unequivocally that in the event of a 'yes' vote, they would be called on to take strike action on Boxing Day;

c. On 14 December 2011, the Defendant issued a notice to "All Branches and Representatives" stating that the Executive Committee had resolved to call for strike action on 3 additional days in 2012 – 16 January and 3 and 13 February.

d. On 16 December 2011 notice was issued by the Defendant to the Claimant under section 234A giving the same 3 additional dates for strike action.

The criteria for granting an injunction

10. It is common ground that the test for the grant of an interlocutory injunction in the present case is not the normal American Cyanamid test, but rather whether it is likely that the Defendant will establish a defence under Part V of the Act.

11. Pursuant to s. 221 of the Act, where the s. 219 defence is raised in response to an application for an interlocutory injunction, the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that defence succeeding at trial. If it is held that the Defendant's call for strike action on 26 December is likely to be protected by s. 219, the strike must be allowed to proceed. Conversely, if it is held that the action is unlikely to be protected, it is common ground that the balance of convenience in strike cases generally favours the granting of an interim injunction. See: British Airways plc v Unite the Union (No. 2) [2010] ICR 1316, CA, paras 108-109 per Smith LJ.

12. In construing and applying the provisions of the 1992 Act, regard must be had to the importance of union members having an "effective right to withhold their labour" and to the fact that these provisions "are not designed to prevent unions from organising strikes, or even to make it so difficult that it will be impracticable for them to do so" (BA v Unite (No. 2), paras 109, 113, 153 per Smith LJ). There is no presumption that the immunity from common law liability provided to trade unions is to be narrowly construed (RMT v Serco Ltd; ASLEF v London Midland [2011] ICR 848, CA, para 9 per Elias LJ).

13. For these reasons, it is important to emphasise that in considering the present application for an injunction the court is not concerned with the merits of the underlying dispute. Nor is the court concerned with the balance of convenience between the parties or the convenience of the public. That is not the function of this court. The reason lies in the statutory framework laid down by Parliament. Thus, although a union commits a prima facie tort by inducing its members to act in breach of their contractual obligations to work for their employer when it calls on them to take industrial action, by s. 219 of Act a union has immunity from such liability in tort if it acts "in furtherance of a trade dispute" (there is no issue in this case that such a trade dispute exists) and provided it complies with various specific obligations in respect of (for example) the holding of a ballot, the provision of appropriate notices and information to the employer. If it does not comply with those obligations, the immunity is lost.

14. For present purposes, the main issues in the present case turn on a number of narrow but important points concerning the proper procedure with regard to the ballot that was held. The relevant procedure is governed by various provisions of Part V of the Act which have more than once been described by the higher courts as "complex". In general terms, the courts are required to give these provisions a "likely and workable construction" (P v National Association of Schoolmasters/Union of Women Teachers [2003] UKHL 8 [2003] ICR 386, per Lord Bingham at para. 7).

The statutory framework – (A) Entitlement to vote

15. Section 219 of the Act provides a trade union with potential immunity from suit in relation to actions in tort based on, inter alia, inducement to breach of contract (see section 219(1)(a)). However, that immunity operates in relation to trade unions, subject to the provisions of section 219(4) of the Act which provides as follows:

"Subsections (1) and (2) have effect to subject ……… sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections "not protected" means excluded from the protection afforded by this section…"

16. So, whilst a trade union has prima facie immunity in respect of a claim by an employer based on the tort of inducement to breach of contract, that immunity will be lost if the procedural safeguards put in place by Parliament in relation to balloting are not followed.

17. Under section 226(1):

"An act done by a trade union to induce a person to take part, or continue to take part in industrial action:

(a) is not protected unless the industrial action has the support of a ballot,"

18. Section 226(2) sets out a number of requirements which the union has to meet if it is to be able to demonstrate that the proposed industrial action "has the support of a ballot" and these include at section 226(2)(a) that:

"it has held a ballot in respect of the action-

(ii) in relation to which the requirements of sections 227 to 231 were satisfied."

19. Further requirements are set out at section 226(2)(b) – in order for the action to have the support of a ballot:

"such of the requirements of the following sections as have fallen to be satisfied at the relevant time have been satisfied, namely

(i) Section 226B so far as is applicable after the holding of the ballot, and

(ii) Section 231B"

20. Entitlement to vote in the ballot is governed by section 227 which provides as follows:

"(1) Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others." (emphasis added)

21. The section therefore contains both a positive and negative injunction – the union must include all those who it is expected at the time of the ballot will be induced to take part in the industrial action and must exclude everybody else.

22. The short point advanced by the Claimant in relation to the ballot of the Defendant's members who are employed by the Claimant is that the Defendant could not reasonably have believed that such of those members who were not due to attend work on Boxing Day would be induced to take part in strike action planned for that same day. In particular, Mr Carr QC on behalf of the Claimant submitted that the inclusion of such persons means that the Defendant has secured a false mandate in that large numbers from its membership have voted for a strike which has no impact on them whatsoever; that the effect of the Defendant's action is that 1950 individuals have been balloted to take part in action which in scope is limited to around 480 of them; that any mandate for industrial action is therefore fundamentally flawed; and that it also means that, given the announcement of 4 proposed days of strike action, it is calling on members to take action in a form for which they had never voted.

23. That error, submitted Mr Carr QC, is compounded by the fact that the Defendant included within the balloting constituency in the region of 122 members whose workplaces were known to be closed on the day of the proposed strike (High Barnet and East Finchley).

24. In short, it was Mr Carr QC's submission that in relation to the stated categories of member, the Defendant could not reasonably have believed that they would be induced to take part in strike action on Boxing Day.

25. I should mention that, as Mr Carr QC recognised, there are "escape" provisions within section 232B of the Act which relieve the union from the consequences of certain mistakes in relation to certain of the balloting obligations. The section provides as follows:

"(1) If:

(a) in relation to a ballot there is a failure (or there are failures) to comply with a provision mentioned in subsection (2) or with more than one of those provisions, and

(b) the failure is accidental and on a scale which is unlikely to affect the result of the ballot, or as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot,

the failure (or failures) shall be disregarded for all purposes (including, in particular those of section 232A(c)).

(2) The provisions are section 227(1), section 230(2) and section 230(2B)."

26. However, Mr Carr QC submitted that that section 232B is simply not engaged in that the inclusion in the ballot of those who were not rostered to work on Boxing Day was in no sense "accidental" but was rather the result of a conscious decision taken by the Defendant; and the failure in question cannot in any respect be described as "small" because the balloting constituency has been subject to a roughly 4-fold increase in relation to non-rostered members alone. The same mistake was made twice over in relation to those employed at the East Finchley and High Barnet depots.

The Statutory Framework – (B) The role of the Scrutineer

27. Under section 226B(1) of the Act, the Defendant is required to appoint an independent scrutineer:

"…whose terms of appointment shall require him to carrying out in relation to the ballot the functions of:

(a) Taking such steps as appear to him to be appropriate for the purpose of enabling him to make a report to the trade union; and

(b) Making the report as soon as reasonably practicable after the date of the ballot and, in any event, not later that the end of the period of four weeks beginning with that date."

28. Section 226B(3) then provides that

"The trade union shall ensure that the scrutineer duly carries out the functions conferred on him under subsection (1) and that there is no interference with the carrying out of those functions form the union or any of its members, officials or employees."

29. The Scrutineer's report is required to comply with the provisions of section 231B as follows:

"(1) The scrutineer's report on the ballot shall state whether the scrutineer is satisfied-

(a) That there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot."

30. As far the scrutineer's report is concerned, Mr Carr QC submitted as follows:

a. The Defendant has not ensured that the Scrutineer has carried out its functions in accordance with section 226B(3)

b. ERSL cannot have been satisfied that there were no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot and failed in its duties under s226(1) and s231B accordingly.

31. The Claimant copied its application and evidence to ERSL on Friday 16 December 2011.

Issue 1

The Claimant's Submissions

32. In light of the statutory framework and against the factual background summarised above, Mr Carr QC submitted that the procedure which had been adopted by the Defendant was flawed for a number of reasons viz.

a. First, having balloted its members to secure a mandate for industrial action on Boxing Day, the Defendant has now purported to call for strike action that day and 3 additional days, a course of action on which the membership were never consulted and on which they have simply not voted.

b. Second, looking at the numbers involved, it is highly likely to be the case that by far the majority of those who voted in favour of the strike on Boxing Day will not in fact be participating in it. Even if, which is most unlikely to be the case, every single one of the Defendant's members rostered to work on Boxing Day returned their ballot papers and voted for strike action, this would still make up just over 50% of those who voted 'yes' in total.

c. Third, to make matters worse, given the inflated balloting constituency and the information provided to those within it, there is no way of establishing what would have been the vote, had the voters been told that they were in fact voting on at least 4 days of strike action. Suffice it to say, it is unlikely to have resulted in the same outcome as the actual ballot which was conducted on the basis of action on Boxing Day alone.

33. In light of the above, Mr Carr QC submitted that the question then arises as to what the reasonable belief of the Defendant was at the time of the ballot as to those members who would be induced to take part "in the industrial action in question". Further, Mr Carr QC submitted that given the communications to members as to the basis on which they were being asked to vote – namely for a strike on Boxing Day - the choice is a stark one. Either:

a. Did the Defendant act in breach of the provisions of paragraph 36 CoP and mislead its members such that, although it told its members that they were voting for a strike on Boxing Day it did not in fact intend to limit the call for action to that day (as had been done in 2010)? Or, more likely;

b. Did they act in accordance with paragraph 36 CoP and properly inform their members of what it was they were being asked to sign up to by voting 'yes', namely a strike on Boxing Day but without thinking through the section 227 consequences?

34. If it is the latter, then the Defendant has plainly secured a false mandate by extending the right to vote to around 75% of members who it could not reasonably have believed would be called on to take part in the industrial action.

35. The Claimant contends that it is indeed the latter. In particular, Mr Carr QC submitted that the only contemporaneous evidence before the court expresses the Defendant's intention to ballot for industrial action to take place on Boxing Day only. Whilst Mr Whelan contends to the contrary in his witness statement, that statement does not adequately explain the contents of the contemporaneous material and appears to advance an explanation for events which differs from that which the Defendant told the Scrutineer on 13 December 2011.

Discussion

36. The main issue in relation to Issue 1 turns on the proper scope and effect of s227 of the Act (which I have already quoted above) and its application to the facts of the present case.

37. As to the proper scope and effect of that section, Mr Carr QC relied heavily on what he said was its legal context ie the context which that section plays in the overall scheme of Part V of the Act. In particular, he relied on London & Birmingham Ry Ltd v Aslef [2011] ICR 848 per Elias LJ at paras 2-5 including, specifically the dictum by Elias LJ at para 5 that: "In short, the strike must have a democratic mandate". In summary, Mr Carr QC submitted that the democratic nature of a strike would be subverted if the ballot constituency included persons who would not be on strike and could not be induced to be on strike because ex hupothesi they were not going to be rostered to work on the day when the strike would take place.

Was the proposed industrial action (intended to be) limited to Boxing Day ?

38. Thus, an important – indeed crucial – part of Mr Carr QC's argument was that the ballot was a ballot for a strike on Boxing Day ie for the purposes of s227 the "industrial action in question" was a strike on Boxing Day alone. He accepted that if the ballot were one for a strike not limited to Boxing Day but for further days beyond Boxing Day, then the Claimant could not succeed on Issue 1. This gave rise to the first factual issue. The high point of the Claimant's case in this context is the announcement in the Defendant's Locomotive Journal and their website to the effect that the Defendant's members "will be balloted to seek their support for industrial action on Boxing Day." There is no reference there to the proposed industrial action being extended beyond Boxing Day and Mr Carr QC thus invites me to conclude that that was indeed the Defendant's limited intention at that stage – or at least that that is the likely conclusion at trial. Mr Carr QC also relies upon the evidence of the "bloggers" which I have already referred to above to the effect that that is what they at least understood at the time. However, against that, I have the evidence of Mr Whelan (the General Secretary of ASLEF) who says in a statement (signed by Mr Whelan with a statement of truth) that that publicity material was not intended to limit the Defendant's action and that such conclusion is supported by the way in which the 2010 ballot was arranged ie a similar website announcement but a call for strike action not limited to Boxing Day. Further, Mr Whelan states:

"To be clear, I strongly refute the allegations made at paragraphs 53 and 56 of Mr Collins' statement that ASLEF's original intention was to call for strike action on Boxing Day alone, or that the notice of strike action on additional days is a "device" to mask that original intention. We did, of course, hope that LUL would settle the dispute on acceptable terms, but it was certainly never ASLEF's intention to limit its ability to call strike action to Boxing Day alone and it was, at all times, our intention to call for strike action on other dates as well if necessary."

39. In the course of argument, both parties referred to other material including the statutory notice of action served on 16 December and other correspondence. However, it does not seem to me that such material takes the matter any further.

40. Notwithstanding the material relied upon by the Claimant in this context, it seems to me that the direct evidence of Mr Whelan cannot simply be ignored. On the contrary, it seems to me that at this interlocutory stage, the right approach is to say that it is likely that what Mr Whelan says will be accepted at trial unless there is strong evidence to tip that at this stage. I do not consider that the material from the Defendant's Journal and at the website fall into that category.

41. Thus, on this basis of the material presently before the court, it is my view that the likely conclusion at trial is that the industrial action being considered by the Defendant was not limited to Boxing Day. As Mr Carr QC conceded, that conclusion is, of itself, fatal to the Claimant's application for an interlocutory injunction under this head.

"…taking part in the industrial action in question…"

42. Mr Carr QC submitted that these words were, in effect, to be construed as limited to persons who were withdrawing their labour in breach of contract. In support of that submission, he advanced two main arguments.

43. First, he submitted that this was the obvious and necessary construction of these words given the overall scheme of Part V of the Act and, in particular, the overriding requirement that any strike must have a democratic mandate. In that context, he also emphasised that the whole purpose of a ballot was to ensure that those who participated in industrial action would have the necessary "immunity". Thus, Mr Carr QC submitted that there would be no purpose in balloting anybody who would not be withdrawing their labour in breach of contract because they would not need any "immunity".

44. Second, Mr Carr QC submitted that this was a conclusion founded on authority and, in particular, the decisions of the Court of Appeal in McCormick v Horsepower Ltd [1981] ICR 535 and Coates v Modern Methods & Materials Ltd [1982] ICR 76.

45. I do not accept the thrust of these submissions nor the conclusion urged by Mr Carr QC for the following reasons.

46. First, although I accept the general notion that a strike should have a democratic mandate, it seems to me that that begs the question as to what is the relevant ballot constituency. It does not seem to me necessarily to follow that the persons who should be balloted must be limited to those who will be on strike ie actually withdrawing their labour in breach of contract on a particular day.

47. Second, in my view, the answer to that question must depend upon the relevant statutory wording. In that context, it seems to me important that the relevant wording in s.227 refers to persons whom the union believe will be induced "to take part…. in the industrial action in question". The statutory wording could have said but did not say "take…the industrial action in question". It seems to me that the insertion of the words "take part..in" is a very strong indication that the ballot is not to be restricted to those who will actually take the industrial action in question ie withdraw their labour in breach of contract but extends to those who will take part in it. In that context, Mr Carr QC submitted that this was what he described as a "nuance without a difference". I do not agree.

48. Third, that conclusion is supported by the observations of Scott J when sitting in the Employment Appeal Tribunal in Bolton Roadways Ltd v Edwards & ors [1987] IRLR 392, at para. 20:

"Whether an employee is taking part in strike action is … a question of fact. Whether an employee's activity represents a breach of his obligation to attend work, may be relevant to the question whether he is taking part in a strike, but it is not in our view, an essential ingredient. We would take, as an example, the case of an employee who is for the time being on holiday or away sick. That employee by reason of his holiday entitlement or his sickness would not be in breach of his contractual obligation to work; but if he associated himself with the strike, attended at the picket line or took part in the other activities of the strikers with a view to furthering their aims, he would, in our view, be capable of being held to be taking part in the strike. Any other view would be to make nonsense of the plain language of the phrase "taking part in the strike or other industrial action". The phrase is not "on strike"; a person on holiday is not "on strike", he is on holiday. But he may nonetheless be taking part in strike action."

Mr Carr QC submitted that these observations formed part of a long paragraph in the judgment and, in some respect at least, were not necessary for the decision in that case. If necessary, he submitted that these observations were wrong in law and that I should not follow them. Moreover, Mr Carr QC submitted that these observations were inconsistent with both McCormick or Coates. That is, in my view, a very bold submission and one which I do not accept at least at this interlocutory stage. In my view, those latter two cases involved very different questions and do not support the very broad proposition for which they were cited by Mr Carr QC. The high point of Mr Carr QC's argument in this context are certain comments of Eveleigh LJ (who dissented) but I do not regard them of general application. Moreover, if Mr Carr QC were right and there were an inconsistency between Bolton (on the one hand) and McCormick and Coates (on the other hand), it is rather odd (i) that there is no reference in any textbook (including Harvey on Industrial Relations) so far as Counsel have been able to find to suggest any such inconsistency; and (ii) that the draughtsman of the 1992 Act (some time after all three cases) did not take the opportunity to clarify the position.

49. For these reasons, it is my view that it is likely at trial that the Defendant will succeed on their construction of s227 ie the ballot is not required to be limited to those persons who will be induced to withdraw their labour in breach of contract but extends to all those who will be induced to take part in the industrial action in question in the sense described by Scott J in Bolton.

50. In my view, that conclusion is also arguably supported by the comments of Waller LJ in P v NAS/UWT [2001] EWCA Civ 652 at 89-91 although I accept that that is perhaps a matter of debate.

51. The result, in my view, is that even if I am wrong with regard to my earlier conclusion as to the intention of the Defendant with regard to the proposed industrial action extending beyond Boxing Day and, thus, even if I assume that the proposed industrial action was limited to Boxing Day, I do not consider that the fact that the ballot included persons who would not themselves go on strike renders the ballot held in breach of s227.

52. For the avoidance of doubt, I should note that the evidence adduced on behalf of the Defendant (which I accept for present purposes) was that there were, at the relevant time, reasonable grounds for the Defendant to believe that all the balloted members would be induced by the Defendant (in the sense that the Defendant would seek to persuade) to take part in the industrial action in question on Boxing Day by inducing either (a) those contractually obliged to work on Boxing Day to join in a concerted stoppage including those not only who were initially rostered but also anyone who was restored subsequently; or (b) those not rostered to work to associate themselves and to support the strike eg by joining picket lines.

53. In this context, a further factual issue arose. In particular, it was the Defendant's submission that, as appears from the statement of Mr Collins at paragraph 30, the Defendant could not have known the final rosters for Boxing Day until approximately 28 days in advance ie on or about 28 November 2011 after the ballot papers were sent out. This gave rise to some debate. In particular, Mr Carr QC submitted that it had been agreed that at least certain of the persons balloted would be given annual leave so as not to require them to work on Boxing Day. Mr Segal QC submitted that this was simply wrong. Moreover, Mr Segal QC submitted that the Claimant could have altered the rosters (at least up to about 28 November) so as to require non- balloted members to attend for work; and that a construction of s227 which in effect would render the Defendant powerless to persuade those persons not to work their new rosters would be one which was not "likely and workable". In the event, it does not seem to be necessary to decide this point - even on the basis of a likelihood as to which party is likely to succeed at trial. My tentative view is that the Defendant has the better of the argument and this would, in my view, again be fatal to the claim for an interlocutory injunction by the Claimant. However, as I say, I do not consider that it is necessary to reach even a preliminary decision on this point.

Issue 2

54. Under this head, Mr Carr QC submitted that ERSL as the Scrutineer was faced with precisely the same stark choice as summarised above; that the full content of the Defendant's 14 November 2011 News & Media article was set out in the Claimant's letter to ERSL of 12 December 2011; and that ERSL had reasonable grounds for believing that:

a. S227 had been contravened, because entitlement to vote had been accorded all the Defendant's Driver Members, when in fact it should have been accorded only to those scheduled to work on Boxing Day; or

b. S226 and §30 of the CoP had been contravened, because the Defendant's Driver members had been misled.

55. Either way, Mr Carr QC submitted that the Scrutineer should not have provided a report stating that "there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot."

56. These submissions gave rise to a wide-ranging debate. But, in my view, this part of the Claimant's case is hopeless; and I propose to deal with it very shortly. First, the argument in (a) above is, in effect, parasitic on Issue 1 and it fails for similar reasons. Second, as to the argument in (b) above, the CoP is only relevant if it is properly regarded as an "enactment" for the purposes of s231B(1)(a). In my view, it is plainly not an "enactment"; and that therefore is an end of that argument. I should mention that both parties raised further arguments in this context. In particular, the Claimant raised a separate argument that the Scrutineer's report was "premature" and, as I understood, invalid for that reason. I do not agree broadly for the reasons set out in the Defendant's written submissions. The Defendant also raised further arguments in support of their position which are, in my view, unnecessary to address given my earlier conclusions.

Conclusion

57. For these reasons, I refused the injunction sought by the Claimant. I recognise that this conclusion will cause disruption to the public who would want to use London Underground on Boxing Day. That is regrettable. But the decision which I have reached is, in my view, inevitable given the statutory framework laid down Parliament.