Employment Cases Update

Metroline Travel Ltd & Ors v Unite the Union [2012] EWHC 1778 (QB)

Date published: 29/06/2012

Judgment setting out the reasons for allowing interim injunctions arising from a ballot for possible strike action.

The claimants operate bus companies in London and were faced with possible strike action concerning bonus payments for employees for working over the period of the Olympic and Paralympic Games. The respondent Union held a ballot, the vote was in favour and strike action planned for 22 June. On 21 June the hearing for these applications was held and the interim relief was granted after the claimant submitted that the Union had not complied with the duties under Part V of TULR(C)A.

In this judgment Supperstone outlines the reasons for granting the requested relief. He reviews the relevant law and the evidence presented before him. He decides that the critical phrase in the ballot notices was that the Union would ballot those "working on TfL contracts either on a full time or part time basis". In his view it was not clear that the phrase covered employees who "might be expected" to work on such contracts, or those who were "associated with" TfL work or those working on TfL contracts whether "directly" or "indirectly".

Accordingly the claimants could not readily deduce

  1. the total number of employees concerned, 
  2. the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and 
  3. the workplaces at which the employees concerned work and the number of them who work at each of those workplaces. 

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Neutral Citation Number: [2012] EWHC 1778 (QB)

Case No: HQ12X02474;

HQ12X02475; HQ12X02476

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27 June 2012

Before :

THE HONOURABLE MR JUSTICE SUPPERSTONE

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Between :

(1) METROLINE TRAVEL LTD; (2) ARRIVA THE SHIRES LTD; (3) LONDON GENERAL TRANSPORT LTD (Claimants)

- and -

UNITE THE UNION (Defendant)

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Andrew Stafford QC (instructed by Messrs Eversheds LLP) for the Claimants

John Hendy QC and Michael Ford (instructed by Messrs Thompsons) for the Defendant

Hearing dates: 21 June 2012

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

THE HON. MR JUSTICE SUPPERSTONE

Mr Justice Supperstone :

Introduction

1. The three Claimants are bus companies that seek injunctive relief to restrain the Defendant trade union, Unite, from inducing its relevant members to breach their contracts of employment with the Claimants by taking part in industrial action by way of discontinuous strike action with the first strike due to commence on Friday 22 June 2012.

2. Arriva The Shires Limited ("Arriva") is a division of Arriva plc, which is one of the largest transport services organisations in Europe. In addition to providing a number of commercial bus services, Arriva is one of many private operators of buses for Transport for London ("TfL"). This case concerns its Watford garage from which Arriva run both TfL bus services and commercial bus services. The Watford garage employs approximately 400 staff and its buses carry approximately 58,411 on the TfL routes and 17,719 passengers on the commercial services per day.

3. London General Transport Services Limited ("London General") is one of four companies owned by the Go Ahead Group plc which provides bus transport services within Greater London. London General operates 60 bus routes across the South and South West London area. It has 9 garages, and approximately 3,000 employees of which approximately 2,500 are bus drivers. Administrative support staff, managers, supervisors and engineers variously make up the remaining 500 members of staff.

4. Metroline Travel Limited ("Metroline") is a subsidiary of Singapore-based ComfortDelGro Corporation, which is the world's second largest listed land transport company. Metroline operates 10 bus garages in North London and carries 250 million passengers every year across 80 routes in North and Central London, using 1200 buses. It employs 3,814 staff.

5. Unite is the largest trade union in the United Kingdom, with over 2 million members in the public and private sectors. It is the independent trade union recognised by Arriva to conduct collective bargaining in respect of (amongst others) Arriva's employees at the Watford garage in the grades of (1) drivers, (2) Engineering, and (3) ACTS, which covers the administrative teams, Duty Managers, iBus Managers, Route Managers and Driving Instructors. It is the main trade union recognised by London General to conduct collective bargaining in respect of the terms and conditions of their members. Unite is the independent trade union recognised by Metroline in respect of all its employees. However, Metroline does not conduct pay negotiations with Unite in respect of its managerial employees.

6. The proposed strike action is in connection with a demand by Unite that is members be paid a £500 bonus for working during the Olympic and Para Olympic Games ("the Games"). Each Claimant has refused to award such a bonus. The court of course is not concerned with the merits of the proposed strike action.

7. On 9 May 2012 Unite gave notice to the Claimants of its intention to hold a ballot for industrial action in relation to a trade dispute over the non-payment of the bonus ("the Ballot Notice"). The ballot was opened on 16 May 2012 and closed on 8 June 2012. Thereafter Unite notified the Claimants of the result which was in favour of strike action. On 15 June 2012 Unite gave notice to the Claimants of strike action commencing on 22 June 2012.

8. At the outset of the hearing of these applications at 2.00 p.m. on 21 June 2012 I agreed, at the request of Mr Andrew Stafford QC, for the Claimants, and Mr John Hendy QC, for the Defendant, that at the conclusion of the hearing I would announce my decision and deliver my Reasons at a later date.

9. The applications are made on the basis that Unite has failed to comply with the requirements of Part V of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended ("the Act"), and that, consequently industrial action called pursuant to the ballot is unlawful.

10. For the reasons that I now give I decided that the Claimants are entitled to the relief sought (with minor amendments to the draft order) and therefore I granted the applications for interim injunctions.

The relevant statutory framework

11. S.219(1) of the Act protects a trade union from liability in tort in relation to actions based on, amongst other matters, the inducement of another to break his or her contract. However that immunity is subject to a union having complied with certain statutory requirements relating to industrial action. S.219(4) provides, in part, that

"Sub-sections (1) and (2) have effect subject to … sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action)…"

12. S.226 (Requirement of ballot before action by trade union) requires compliance with the provisions of s.226A. S.226A contains provisions on the information which has to be supplied by the trade union to the employer in advance of the ballot.

13. S.226A(1), in so far as is material, provides that

"(1) the trade union must take such steps as are reasonably necessary to ensure that—

(a) not later than the seventh day before the opening day of the ballot, the notice specified in sub-section (2) …

is received by … the employer of persons who will be entitled to vote in the ballot."

14. S.226A(2) prescribes the content of the ballot notice. The union has a choice of how to provide the prescribed information. In the present case, the Defendant chose to provide information by reference to s.226A(2)(c)(ii), which is an option available "where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union" (known as "check-off").

15. In relation to "check-off" members the union may supply either (1) the lists referred to in s.226A(2A) and the figures in s.226A(2B), or (2) the information mentioned in s.226A(2C).

16. S.226A(2C) provides that

"The information referred to in sub-section (2)(c)(ii) is such information as will enable the employer readily to deduce—

(a) the total number of employees concerned,

(b) the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and

(c) the workplaces at which the employees concerned work and the number of them who work at each of those workplaces."

17. The term "workplace" is defined in s.226A(2I). As for the term "categories", in The National Union of Rail, Maritime and Transport Workers v Serco Ltd t/a Serco Docklands [2011] EWCA Civ 226 at para 124 Elias LJ said:

"There is no statutory obligation requiring the union to use any particular category of jobs, and therefore there is no obligation to adopt the categories used for pay purposes. Indeed, there is clear authority that the only obligation is to provide numbers by reference to general job categories: see Westminster City Council v UNISON [2001] IRLR 524, and these will not reflect the more sophisticated job breakdown typically used in pay negotiations."

(See also the Code of Practice entitled "Industrial Action Ballots and Notice to Employers" at para 15).

18. S.226A(2D) states:

"The lists and figures supplied under this section, or the information mentioned in sub-section (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with sub-section (1)(a)."

19. By sub-section (2E)

"For the purposes of sub-section (2D) information is in the possession of the union if it is held, for union purposes—

(a) in a document, whether in electronic form or any other form, and

(b) in the possession or under the control of an officer or employee of the union."

20. In Serco Elias LJ at paragraphs 69-72 agreed with Mr Hendy's submission that "the focus on the information actually in the hands of the union at the time when it complies with its obligation is … crucial. It is not information which the union ought to have had if it had kept proper records, or information which it could obtain, or which the union had in its possession at some other time" (para 69). Elias LJ said at paragraph 71:

"I accept that there will be a duty on the union to obtain any relevant documents from union officers and employees and to collate and analyse that information to enable it to supply the relevant lists and figures to the employer as accurately as it reasonably can. Moreover, it would in my view be in breach of the duty to provide information drawn solely from documentary records when the union knew that the information was actually wrong. The duty is more than simply to replicate in a mechanical way the information in the union's possession. However, in my view what is required, as in the previous incarnations of this duty, is that the union should assist the employer by drawing upon information it already has."

21. S.234A (Notice to employers of industrial action) requires a union, if the industrial action is to be protected as against a particular employer, to take such steps as are reasonably necessary to ensure that the employer receives within the appropriate period a relevant notice. It is similar in form to s.226A. The focus is on "affected employees", that is those employees of the employer whom the union reasonably believes will be induced by the union to take part in the industrial action.

22. In Serco Elias LJ at paragraphs 78-87 considered the application of the de minimis principle to these statutory provisions. I shall proceed on the basis that the doctrine is available to a union in a case such as the present.

23. S.221 requires the court on an application for an interim injunction, in a case such as the present, to have regard to the likelihood of the statutory immunity being established at trial (s.221(2)).

The evidence

24. The Ballot Notice sent to Arriva stated that the union intended "to send ballot papers to all members who are drivers; engineering grades and supervisory grades working on the TfL contracts either on a full time or part time basis, employed at the Watford Depot…". Notices in similar terms were sent to London General and Metroline.

25. On 25 May 2012 Mr Adcock, Area Managing Director for Arriva, wrote to Mr Linger, Regional Officer of the union, stating that it appeared that Unite had failed to comply with its statutory obligations and that any industrial action taken in reliance upon the Ballot will be unlawful. Mr Adcock identified what he considered to be a number of defects in the Ballot Notice. These included the following:

"5. You have failed to provide a clear definition of those to be balloted. It is not clear who will be regarded (or who you regard) as working on a TfL contract 'either on a full time or part time basis'. As you must know, whilst some employees who are drivers, or who work within engineering or supervisory grades regularly work on TfL contracts for the whole, or part of their regular work, others do not. Of those others, some will never work on TfL contracts and others will do so occasionally with differing degrees of frequency. (Page 2)…"

Under the heading "Ballot Constituency" Mr Adcock continues:

"Whilst many of our employees spend all of their time working on TfL contracts, a significant number of our employees who are employed in the groups which it appears to us are being balloted,

* spend no time at all working on these contracts (but are within the grades being balloted and if a member of Unite paying subscriptions via payroll would appear on the check-off lists used by Unite in purported discharge of its obligations under section 226A)

* work very occasionally on TfL contracts, perhaps doing overtime once a month on them;

* undertake work which is related to the TfL contracts (such [as] the Senior Duty Manager, Duty Managers and all staff employed within our Engineering Grades) but which is not directly for those contracts; or

* undertake work which is not assigned to TfL contracts or non-TfL contracts (such as the Senior Duty Manager, Duty Managers and all staff employed within our Engineering Grades).

Due to the very brief description given in the Ballot Notice we have no means of establishing with any certainty whether or not the employees in the second, third and fourth of these categories are being balloted; and in view of Unite's reliance upon check-off, we are concerned that Unite may have balloted members in the first category." (Page 4).

26. Similar letters were written by Mr Trayner, managing director of Go Ahead London to Mr Dillon on 28 May 2012 and by Mr O'Shea, Chief Operating Officer of Metroline to Mr Buckley, Regional Industrial Organiser of Unite on 25 May 2012.

27. On 1 June 2012 Mr Linger replied to Mr Adcock, providing some additional information as to those included under the generic description of supervisory grades and in engineering grades. In response to Mr Adcock's concern about the ballot constituency (see para 25 above) Mr Linger wrote:

"… All the drivers that we identified drive only TfL routes except for four who are on standby but have also been balloted since they might be expected to work on TfL contracts. That number is in any event minimal compared to the overall number being balloted. Those in Engineering grades work on all vehicles which include TfL and commercial. iBus controllers and Route Managers are exclusively TfL. Duty managers are not exclusively TfL but could be expected to carry out some work at least on TfL contracts…"

28. On 8 June 2012 Mr Dillon replied to Mr Trayner's letter of 28 May 2012. He rejected the allegation that the ballot notice did not comply with the union's statutory obligations. Mr Trayner had asked whether the ballot constituency included the following employees: those that work very occasionally on TfL contracts, perhaps doing overtime once a month on them, and those that are Drivers assigned to non-driving duties. Mr Dillon stated that clearly those categories are working on TfL work, whether on a full or part-time basis.

29. Mr Buckley replied to Mr O'Shea's letter on 1 June 2012. Mr O'Shea had also asked about employees who only occasionally do some work on TfL contracts, and about some employees who do work related to TfL contracts but not directly for them (e.g. ferry drivers). As for these categories, Mr Buckley replied:

"… There are about 30 drivers working on commercial routes at Potters Bar. These drivers work TfL routes on rest day working and on overtime. They have therefore been included in the ballot. In any event, the total number of drivers balloted is well over 2,000. Thirty drivers is clearly de minimis in the context of the overall numbers involved. Similar arguments can be made in relation to those in the engineer and supervisory grades categories, who all work at some time or other on TfL contracts, with the possible exception of Potters Bar. Even if that is the case, the same de minimis argument applied.

As for ferry drivers, we understand that there are about 20 of them, and their substantive grade is driver, apart from 2 or 3 who do not hold the PCV licence. This role involves them ferrying drivers working on TfL contracts, to and from their relief points and take over points. Thus, as your category indicates, they are associated with the TfL work and are within the description used. Further, given the numbers involved, in the context of the overall numbers included in the ballot, this issue is clearly de minimis."

30. On 15 June 2012 Unite sent each of the Claimants a Strike Notice, in similar terms, which stated that the Union intended to call "all members employed by your organisation who are Drivers; Engineering Grades and Supervisory Grades, working on the TfL contracts, either on a full time or part time basis, employed at" identified locations "to take part in discontinuous strike action", commencing on 22 June 2012. Each Strike Notice included the following statement:

"We also note the issue raised by you about it not being clear from the notice of ballot which of our members the description 'working on the TfL contracts, either on a full time or part time basis' relates to. Again, we entirely reject that contention; but in the same spirit of co-operation we refer to our letter of 1 June 2012 in relation to that issue from which it will be clear that … this description includes all of our members working on any TfL contracts/routes for any of their working time whether directly (such as drivers working wholly on TfL routes) or indirectly (such as engineers servicing vehicles used on TfL and non-TfL routes) and including for example drivers working mainly on non-TfL routes but who work on TfL routes on overtime."

31. Mr Smales, Arriva's Depot Traffic Manager working at its Watford garage, in his witness statement submitted on behalf of Arriva, states that he does not know from the notices served upon Arriva who has been balloted or who is going to be taking strike action. This makes it almost impossible for Arriva to plan for the impact of the strike action. He states, "We do not know with any clarity what bus routes will actually be adversely affected. We do not know with any clarity what shifts are likely to be adversely affected. We do not know with any clarity what ancillary functions (such as maintenance, repair, supervision and administration) are likely to be adversely affected." (para 13).

32. Mr Farthing, the Personnel Manager for London General, in his witness statement submitted on behalf of London General, makes the same point at paragraph 11; so does Mr O'Shea, the Chief Operating Officer of Metroline, in his witness statement submitted on behalf of Metroline, at paragraph 10.

33. Mr Smales, Mr Farthing and Mr O'Shea in their witness statements at paragraphs 14, 12 and 11 respectively all state that it seems to them highly likely that the union has lists of those who were to be balloted and those who are to take strike action. They refer to a notice which was sent by the union to members employed by Arriva London North Ltd that states that "The names of the members to be balloted are available at Unite's Central Office". They say that they expect that the union will have created and maintained a similar list in respect of each of the Claimants. If such lists exist, they say they can see no good reason why those lists were not sent to them.

34. Mr King, a Regional Officer for Unite, in his witness statement responding to the witness statements of Mr Smales, Mr Farthing and Mr O'Shea takes exception to the suggestion that the lists were withheld "to make life difficult for the employer". He states at paragraph 17 of his witness statement:

"I did not in any event believe that I was able to disclose a list of the names of the members to be balloted to the employers because of issues surrounding data protection. … Our intention throughout this ballot has been to comply with our legal obligations. I believe that Unite have done so. There is no legal obligation to provide lists of names (s.226A(2G) and 234A(3F) [of the Act]. That is why such lists have not been provided – not some hidden agenda to 'make life difficult' for the employers…"

(Also see witness statement of Mr Linger at paragraph 11).

35. Mr Smales states (at para 60) that he is really not sure which drivers have been balloted by reference to "working on the TfL contracts" as it is totally unclear how Unite have applied this test. Arriva employ 312 bus drivers across its TfL and commercial routes. The 312 drivers at the Watford garage can be broadly categorised as follows: 220 drivers are assigned to TfL contracts ("TfL Drivers"); 89 drivers are assigned to the commercial services ("Commercial Drivers"); and 3 bus drivers are standby drivers who might be expected to work on both TfL routes and the commercial service ("Standby Drivers"). Of the 89 Commercial Drivers some of these spend no time at all working on TfL contracts and in fact are not trained to work on the TfL routes. However approximately 20% of the Commercial Drivers are also trained to drive the TfL buses. He states that it is difficult to define simply those drivers that might be said to work upon TfL routes "regularly" or "occasionally" (para 50). Despite the additional information and clarification provided by the union, he says, it remains impossible to ascertain who has been balloted under the category of "engineering grades" for the reasons he sets out. Further he states as the ballot constituency is defined by reference to work on TfL contracts, he has no means of establishing within any certainty which "supervisory grades" are being balloted (para 74).

36. Mr Farthing at paragraphs 53-61 of his witness statement explains the problems for London General in identifying which members of the union were being balloted because of the qualification of the ballot constituency by reference to whether the member was working full or part time on TfL contracts.

37. Mr O'Shea, at paragraphs 29-60 of his witness statement, explains the difficulty for Metroline in knowing whether ferry drivers are included within employees "working on TfL contracts".

38. Mr King states this trade dispute concerns a claim for a £500 bonus for all Unite members working in certain grades on TfL contracts. The bonus is requested as a reward for the increased work they will have to undertake as a result of the Olympics. He states he has been responsible for co-ordinating Unite's campaign on this issue. The dispute involves over 21,000 members, spread across 80 garages and involves 21 employers, including the 3 Claimants. At paragraphs 10-17 of his statement he describes the ballot process. He states that great efforts were made to update the union's database of members in preparation for the ballot. Neither the nominal role nor the check-off lists themselves specify whether members work on TfL contracts. It was up to the Regional Officers to get the branches to identify which members worked on TfL contracts. The generic categories chosen to ballot for industrial action were Drivers, Engineers and Supervisory Grades. These were chosen since they are the categories of employees on whose behalf the union collectively bargained. He has no doubt that the Claimants knew what the union meant by the use of those categories.

39. As for Unite's use of the term "working on the TfL contract on a full time or part time basis", Mr King states (para 16) that the union's database only contains records of a person's employer and job category, based on information supplied to the union by the member. The union has no information as to whether a person works or does not work on a TfL contract. He states

"The intention of the words ['working on the TfL contracts'] was simply to make clear, to avoid any doubt, the relevant workplaces where we believed the workers worked on TfL contracts. We had no information in our possession that any workers at those workplaces in the categories of drivers, engineers and supervisory grades did not work on TfL contracts. The words were added in an attempt to be helpful to an employer. When specific issues were raised [with] us by an employer we answered them…" (para 16).

40. Mr Dillon in his witness statement at paragraphs 11-15 responds to Mr Farthing's complaint that London General is not able to readily deduce who is included in the ballot. He says that the s.234A notice put beyond doubt who was to be called to take industrial action (para 16). Mr Linger in his witness statement, at paragraphs 15-26, gives his response to Mr Smales' criticisms of the ballot notice to Arriva. He states that the union has invested a significant amount of time and effort in ensuring that the ballot is conducted lawfully and estimates that over 500 hours in total have been spent by himself and his colleagues at Regional Office on these matters (para 14). (See also Mr Buckley at para 13: 890 hours).

41. Mr Smales in his witness statement at paragraphs 96-104, Mr Farthing in his witness statement at paragraphs 74-80 and Mr O'Shea in his witness statement at paragraphs 61 and 62 deal with the impact of strike action on the businesses of Arriva, London General and Metroline respectively and issues of balance of convenience and adequacy of damages generally. Mr Smales states that even if the strike is limited to 22 June 2012 it will have a significant and detrimental impact on Arriva's business. He estimates that each day of disruption is likely to cost Arriva approximately £41,000 in TfL mileage penalties and in addition there may be losses caused by an inability to run commercial routes. Mr Farthing estimates London General's direct daily financial losses at approximately £300,000. Mr O'Shea estimates that each day of strike action will cost Metroline approximately £600,000 in lost revenues. In addition each company will suffer damage to its goodwill and each Claimant is concerned that the proposed action would, of course, bring very considerable inconvenience to the travelling public.

The parties' submissions

42. Mr Stafford submits that the ballot and strike notices served upon the Claimants by the Defendant do not comply with the statutory requirements. Accordingly the union cannot successfully invoke the immunity from legal action in respect of the forthcoming strike.

43. The critical phrase used in each of the notices is "working on TfL contracts either on a full time or part time basis". It is imprecise and incapable of being used so as to permit the companies readily to deduce the statutory information. First, neither the payroll information nor the check-off information held by the companies describes whether an employee is working on the TfL contracts, whether full time or part time. Second, there had been no previous negotiations which could have served to remove definitively any uncertainties.

44. Mr Stafford submits that, in the hands of the employer embarking upon a process of deduction, the phrase requires a number of issues to be resolved, which he identifies at paragraph 30 of his "Outline Submissions on behalf of the Claimants". They all go to the question as to what it means to be working on TfL contracts.

45. Mr Stafford submits that it is highly likely, in the light of the flyer encouraging members to participate in the strike vote at Arriva North, that lists of members entitled to be balloted were held by Unite Central Office in respect of each ballot. The existence of a centrally-held list in respect of each separate ballot would have provided a source of information from which, in combination with the employer's check-off records, the prescribed information could have been readily deduced.

46. Mr Stafford submits that damages would not be an adequate remedy in respect of the damage which each of the companies will suffer and balance and convenience favours the grant of the relief sought.

47. Mr Hendy accepts that the phrase "working on TfL contracts, either on a full time or part time basis" is not as well drafted as a lawyer would construct it. However, these notices were not drafted by lawyers and should not be construed as though they were. The words were included to make clear that anyone who worked on TfL contracts was to be balloted. In practice, and in relation to the three Claimants, this meant that almost everyone in the relevant grades and workplaces was included in the constituency (cf. Arriva, where there were some commercial drivers).

48. Mr Hendy points out that s.226A(2D) requires the information supplied to be as accurate as is reasonably practicable in the light of the information in the possession of the union at the relevant time. He submits that the Defendant has given so far as is reasonably practicable the statutory information in the light of information in its possession, having regard to the fact that the union is not required to provide the names of the employees concerned (s.226A(2G)).

49. Mr Hendy further submits that the Claimants' real complaint is that they do not know (now that a strike has being called) who is to be called out on strike and who not. Mr Hendy suggests that their state of understanding should be considered in the light of the letters of explanation of the s.226A Notices, their decision not to ask further questions in the light of those explanations and the s.234A Notices in which the Defendant provided additional information not in the s.226A Notices. Mr Hendy contends that any doubts the Claimants had in relation to the s.226A notices have now been clarified by the subsequent correspondence and the contents of the s.234A Notices. He submits that whilst there are some queries now raised in respect of which it is alleged there is a doubt, these could probably be answered if the union had more time, and they are in any event de minimis.

50. Mr Hendy accepts that if a claim in tort succeeded damages, capped by s.22 of the Act, would not be an adequate remedy. However he submits that injunctive relief should be refused by reason of the Claimants' delay and conduct. He contends that the Claimants delayed unreasonably in making the application for an interim injunction. The consequence in the present case is that if the union is injuncted in relation to the strike planned for 22 June by reason of a defective s.226A Notice it will be unable to rely on the ballot in relation to any further industrial action and will have to recommence the balloting process which would effectively prevent any industrial action before the Olympic Games commenced.

51. The Claimants are in breach of the rules which require three clear days' notice of an injunction hearing to be given: CPR 23.7(1)(b). Further, after the Defendant's letters of clarification dated 1 June 2012 to Arriva and Metroline and dated 8 June 2012 to London General, there was no suggestion that any of the Claimants were under any misapprehension as to who was to be balloted. Nothing further was heard from the Claimants about any complaint of breach of the balloting rules until 19 June 2012. At 10am on 19 June Metroline's solicitors informed the Defendant by e-mail that they were instructed to make an application for an interim injunction and anticipated serving evidence on the following day. The letter gave no details of the ground of complaint, other than referring to the letter of 25 May 2012. The Defendant's solicitors replied by e-mail on 19 June, complaining inter alia of the failure to comply with Practice Direction 25A or to offer any explanation of the delay. They requested the Claimants' evidence be served by 1600hrs that day. Metroline's solicitors did not reply to that letter and when the 1600hrs deadline had passed without any response it was assumed by the Defendant's solicitors that the Claimants would refrain from serving their evidence until the following day as they had indicated. The Defendant acted on that basis. However, after the close of business at 17.02 (Arriva) and at 17.11 (Metroline) served some evidence in draft form. The evidence for London General was served at 12.56 on 20 June.

52. Mr Hendy submits that the delay on the Claimants' part is unreasonable and it has caused significant prejudice to the Defendant in preparing for this application. In support of this submission he relies upon the witness statement of Mr Arthur, a partner in the firm of Thompsons Solicitors LLP, who has the conduct of these proceedings on behalf of the union. At paragraph 25 of his witness statement Mr Arthur states that "…in the time available, it has not been possible for us to take detailed instructions. In particular, I would have wanted my team to take detailed instructions on the Union's behalf from the branch officers, shop stewards and convenors at each of the relevant depots and garages so as to put before the court their evidence as to exactly why, in the particular circumstances of each location, it would have been clear to the Claimants which members [were] to be balloted and called to take action. Had notice of the possibility of legal proceedings been given earlier, this would have been possible. But, in the circumstances, and despite the best endeavours of everyone on behalf of the union, it has not been."

53. Mr Stafford rejected the suggestion that any delay or conduct of the Claimants disentitled them to the relief sought.

Discussion

54. The legislative history of the notification requirements is considered by Elias LJ in Serco at paragraphs 60-77. The legislative purpose of both sets of notice provisions is to enable an employer to know which part or parts of its workforce are being invited to take industrial action so that it can best prepare for such action if it takes place (see Westminster City Council v Unison [2001] EWCA Civ 443, per Pill LJ at paras 53 and 54 citing Robert Walker LJ in London Underground Ltd v RMT [2001] ICR 647 at para 45).

55. S.226A(1)(a) requires the union to take such steps as are reasonably necessary to ensure that "not later than the seventh day before the opening day of the ballot" the notice specified in sub-section (2) is received by the employer of persons who will be entitled to vote in the ballot. In the present case that meant that by 9 May 2012 the notice containing the information mentioned in sub-section (2C) had to be served on the Claimants if there was to be compliance with the statutory regime.

56. However in my view the Claimants cannot readily deduce from the information supplied in the Ballot Notices of 9 May 2012—

i) the total number of employees concerned,

ii) the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and

iii) the workplaces at which the employees concerned work and the number of them who work at each of those workplaces.

57. The phrase "working on TfL contracts either on a full time or part time basis" is plainly imprecise. Mr Linger's letter dated 1 June 2012 to Mr Adcock states that four Arriva drivers who are on standby have been balloted "since they might be expected to work on TfL contracts". Mr Buckley's letter of the same date to Mr O'Shea states that ferry drivers employed by Metroline have been included in the ballot because "they are associated with the TfL work" (emphasis added). On 15 June 2012 the s.234A Notices stated that the description "working on the TfL contracts, either on a full time or part time basis"

"includes all of our members working on any TfL contract/routes for any of their working time whether directly (such as drivers working wholly on TfL routes) or indirectly (such as engineers servicing vehicles used on TfL and non-TfL routes) and including for example drivers working mainly on non-TfL routes but who work on TfL routes on overtime." (Emphasis added).

58. It was not, in my view, clear from the Ballot Notices that the phrase "working on TfL contracts either on a full time or part time basis" included employees who "might be expected" to work on such contracts, or those who were "associated with" TfL work or those working on TfL contracts whether "directly" or "indirectly".

59. Mr King, who has been responsible for co-ordinating Unite's campaign, states that "the intention of the words ["working on the TfL contracts on a full time or part time basis"] was simply to make clear, to avoid any doubt, the relevant workplaces were we believed the workers worked on TfL contracts" (see para 39 above). However that phrase was used in the Ballot Notices by reference to the generic categories, not by reference to location.

60. On 1 June 2012 Mr Linger wrote to Mr Adcock

"From your check list, you know who the Unite members are, and you know which workplace is included in the ballot. You are able to determine from your own records which members on your check-off list are included in the general category of 'drivers, engineering grades and supervisory grades'." (Page 2).

Significantly Mr Linger did not suggest that Mr Adcock could ascertain from that information the identity of Arriva employees working on TfL contracts.

61. I consider that the likelihood is that the union will fail to establish at trial that it complied with the statutory requirements in respect of the Ballot Notice. I have reached the same conclusion in relation to the Strike Notice. The Claimants cannot readily deduce, in the light of statements made by the Defendant since the service of the Ballot Notice, the identity of their employees working "indirectly" on TfL contracts. The de minimis principle has, in my view, no application in the present circumstances.

62. I turn next to the question of relief. Mr Hendy accepts that damages will not be an adequate remedy for the Claimants.

63. The Claimants cannot be criticised for not challenging the Ballot Notice at an earlier stage. They were entitled to take the view that the issue of proceedings in a matter such as this before the issue of the Notice of Industrial Action was premature. The Defendant gave notice of industrial action to take place on 22 June at 3.48 p.m. on Friday 15 June. At 10.02 on Tuesday 19 June the Claimants gave the union notice of their intention to apply for interim relief on 21 June.

64. The Claimants gave notice as required by s.221(1). In the circumstances three clear days' notice could not be given. In their Application Notices the Claimants ask for an order that time for service and/or hearing of their applications be abridged. I am satisfied that it is appropriate to make such an order abridging time.

65. There has, in my view, been no delay or conduct by the Claimants that would warrant the withholding of the relief sought. I reject the contention that any delay that has occurred has resulted in prejudice to the Defendant. I am satisfied that no evidence from the Defendant's branch officers, shop stewards and convenors at the relevant depots and garages (see paragraph 25 of Mr Arthur's witness statement) could have affected the outcome of these applications for interim relief. The focus of this hearing has properly been on the contents of the notices and the evidence readily available to the union, through its paid officers. (S.226A(2E))

66. Further I reject Mr Hendy's submission that even if there had been technical breaches of the notice provisions, the main thrust of the Claimants' case has been that they did not know which of their employees was going on strike, and that is something they now know. For the reasons I have given, I consider it unlikely that the union will establish that the information to which the Claimants have a statutory entitlement has been provided. If that be so, the fact is that the union will not have complied with the statutory requirements, as a result of which it has no immunity from suit.

67. In having regard to the balance of convenience, I take into account the very serious inconvenience that the proposed action is likely to cause the travelling public. The balance of convenience, in my judgment, lies firmly in favour of granting relief.

Conclusion

68. In my judgment, for the reasons I have given, the likelihood is that the union will fail to establish at trial that it has complied with the statutory notification requirements and the Claimants are entitled to interim injunctions in the terms set out in the order I made at the hearing on 21 June 2012.