Employment Cases Update

British Airways PLC v Unite the Union [2009] EWHC 3541 (QB)

Date published: 26/01/2010

Application for injunction preventing strike action on the grounds that the ballot unfringed Part V of the Trade Union and Labour Relations (Consolidation) Act 1992. An interim injunction was granted.

1HQ/09/1126

Neutral Citation Number: [2009] EWHC 3541 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Thursday, 17th December, 2009

BEFORE:

MRS JUSTICE COX

BETWEEN:

BRITISH AIRWAYS PLC (Claimant)

- v -

UNITE THE UNION (Defendants)

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MR CARR QC and MR GOTT appeared on behalf of the Claimant.

MR HENDY QC and MR PILGERSTORFER appeared on behalf of the Defendant.

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A P P R O V E D   J U D G M E N T
Crown Copyright ©
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J U D G M E N T

1. MRS JUSTICE COX: For the reasons which I am about to give, and to assist everyone at the outset, I have decided that BA is entitled to the relief sought and I therefore grant the application for an interim injunction.

2. The claimant, BA, is the largest airline in the UK based on fleet size, international flights and international destinations.  The defendant trade union, Unite the Union (UNITE), is the sole representative of cabin crew who work on BA’s fleets at Heathrow and Gatwick Airports. These fleets comprise the Worldwide Fleet and Eurofleet at Heathrow, for long and short haul flights respectively, and the Single Fleet at Gatwick covering both long and short haul flights. All the cabin crew employees relevant to this application are members of UNITE.

3. UNITE is currently involved in a trade dispute with BA over a number of matters which affect the working lives of its members. At the heart of the application before me is BA’s decision to reduce the crew complements on aircraft operated by the Heathrow fleets, which UNITE contends is unlawful.

4. On 6th November 2009 UNITE gave notice to BA of its intention to ballot cabin crew employees on all the fleets at Heathrow and Gatwick on industrial action. The ballot was opened on 16th November and closed on 14th December 2009, on which date UNITE notified BA of the result, which was overwhelmingly in favour of strike action.  The evidence shows that only two ballot papers were spoiled, leaving a valid vote of 10,286 employees, of which 9,514  (that is 92.49% of those voting , on a turnout of 80%) were in favour of strike action.  At the same time UNITE gave notice of a 12-day strike by cabin crew, to commence on 22nd December and end on 2nd January 2010.

5. BA now applies to this court for an interim injunction, to restrain the union from proceeding with the strike.  The application is 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 would be unlawful. In essence, BA alleges that UNITE (a) erroneously included in the ballot notification, and then (b) erroneously balloted, several hundred of its members who it knew would not be involved in the proposed strike action, because they would not still be employed by BA at the time the strike was called. This applies, in particular, to a large number of employees who took voluntary redundancy in November and December 2009.  BA further alleges that the union then erroneously included the same members, or at any rate a large number of them, in the strike notification to BA. 

6. Consequently, it is said, UNITE’s statutory immunity from suit under the Act has been lost, as a result of their failure to comply with the statutory balloting requirements, and any strike action called would be unlawful.   BA now seeks an interim injunction, as a matter of urgency, in order to prevent the considerable and unquantifiable damage that it is said will arise from the proposed unlawful strike.

7. UNITE accepts that many of those who took voluntary redundancy were in fact included in the ballot notice, the balloting process and the notice of industrial action, in the numbers which have been identified by BA in the evidence placed before me. The union says, however, that it did its very best to exclude, and did exclude, all those leaving on voluntary redundancy (“VRs”) of whom it was aware, and that it therefore did all that was reasonably practicable in the circumstances, in order to comply with the multiple obligations contained in complex legislation.  Further, it is said on the union’s behalf that its attempt to discover more information, to enable it to comply with the relevant statutory requirements, was thwarted by a lack of cooperation or by intransigence from BA.  UNITE therefore relies on the statutory “defences” which are available to the union, namely that the information provided in the ballot and strike notices was as accurate as was reasonably practicable; and that any failure in relation to the ballot itself was accidental and had no effect on the result of the ballot. 

8. This hearing began yesterday afternoon, and overnight there was a flurry of further witness statements produced, with exhibits attached.  The statements now before me are from Karen Slinger (Manager of Resource Planning) and Geoffrey Ayres (Business Manager) for BA, and Stephen Turner (National Secretary, Civil Air Transport), Blair Veakins (Overall Convenor for CC89 Amicus section) and Adam Marley (local representative and cabin crew member) for UNITE. I have now read all the statements and exhibits produced on both sides. 

The Relevant Statutory Framework
9. At this point I shall refer to the statutory provisions which govern trade union calls for industrial action. I shall not set them all out in full, but all the provisions referred to should be read into this judgment.

10. It is common ground that section 219(1) of the 1992 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.  That immunity, however, is subject to section 219(4), the effect of which is that a trade union’s immunity is lost if there is a failure to comply with the statutory requirements relating to balloting and the notice of industrial action given to an employer.

11. The requirement for a ballot before industrial action is contained in section 226(1). There are further requirements which the union has to meet to enable it to show that the industrial action proposed has the support of a ballot. These include those set out at section 226(2)(a)(ii). The effect of these provisions is that the obligations under sections 226A and 227 must be complied with if the trade union is to be protected from liability pursuant to section 219.

12. Section 226A requires the union to provide the employer with notice of the ballot not later than the seventh day before the opening day of the ballot. That notice, of the union’s intention to hold a ballot, must contain the information and be in the form prescribed in section 226A(2).  It must be in writing. It must specify the date which the union reasonably believes will be the opening day of the ballot. It must provide the employer with lists of the categories and workplaces of the employees concerned, as well as figures which identify “the total number of employees concerned.”

13. There is no dispute that there are three ways in which “the total number of employees concerned” can be identified, which I summarise as follows.  Firstly, where members of the union pay their subscriptions by means of the employer’s check-off system for making deductions, the union can supply either numbers, categories and workplaces, or the information set out in section 226(2C), namely “such information as will enable the employer to deduce” the total number of employees concerned and their categories and workplaces.  Secondly, for those members who do not use the check-off system, the obligation is found under section 226A(2B), pursuant to which the union must provide numbers, categories and workplaces.  Thirdly, where there is a mixture of check-off and non check-off members, the union can use a combination of both forms of information. That was the route used by UNITE in the present case.

14. Section 226A (2D) provides what Mr Carr QC, appearing for BA, referred to as a “get out of jail free card”, or “escape clause” for a trade union, as follows:

 “The lists and figures supplied under this section, or the information mentioned in subsection (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 subsection (i)(a).”

15. However, the obligation in respect of the number of employees concerned attaches, under section 226A(2H) to “…those employees of the employer in question who the union reasonably believes will be entitled to vote in the ballot.”  Entitlement to vote in the ballot is governed by section 227, which provides in sub-section (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 my be, to continue to take part in the industrial action in question, and to no others.”

16. BA’s case essentially is that, as UNITE well knew, a substantial number of its members who were employed by BA at the time of the ballot would no longer be employed at the time of strike action, because they had accepted voluntary redundancy and would have left their employment.  There could not, therefore, be any question of inducing these members to breach their contracts and participate in strike action, since their contracts would already have come to an end. This error, it is said, was then compounded by the inclusion of these leavers in the notice of industrial action given to BA by UNITE on 14th December 2009, pursuant to section 234A. 
 
17. The requirement in section 234A largely mirrors that found in section 226A, in relation to the provision of information to an employer as to numbers, categories and workplaces of employees.  I refer specifically to subsections (1), (2) and (3)(a) of that section, as read into this judgment.

18. Section 234A(3B) deals with the figures provided for the purposes of section 234A(3)(a) and states at (a) that the figures referred to in that subsection are “the total number of the affected employees”.  Section 234A(3C) refers back to section 234A(3)(a)(ii) requiring that the information to be provided under that subsection is “such information as will enable the employer readily to deduce (a) the total number of affected employees.” 
The term “affected employees” is defined in section 234A(5C) as follows:

“In this section references to the “affected employees” are references to those employees of the employer who the union reasonably believes will be induced by the union or have been so induced to take part or continue to take part in the industrial action”.

19. Section 234(3D) provides a similar “escape clause” to that which is contained in section 226A(2D), in relation to notice of the ballot, providing that:

 “The lists and figures supplied under this section, or the information mentioned in subsection (3C) 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 subsection (1).”

20. Section 234A(3E) sets out the basis upon which information is taken to be “in the possession of the union” and provides that it is in the union’s possession if it is “in a document, whether in electronic form or any other form”, or “in the possession or under the control of an officer or employee of the union”.

21. BA’s case is that the evidence before the court shows that the figures provided to BA in the notice of industrial action continued to include those who had taken voluntary redundancy and left their employment; that UNITE could not reasonably have believed such persons to be “affected employees”, as defined; and, therefore, that the figures provided under section 234A were not as accurate as was reasonably practicable. UNITE’s case is that the information was as accurate as was reasonably practicable in all the circumstances, and in the light of the information which was in their possession when they served the notice. 

22. In relation to the conduct of the ballot itself, there is an important “escape clause” at section 232B, as follows:
 
“232B  Small accidental failures to be disregarded

(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……

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

23. BA’s primary position in relation to this section is that it is simply not engaged, because the inclusion in the ballot of a large number of those who were known to be leaving on voluntary redundancy, whether or not this was deliberate, could in no sense be regarded as a small accidental failure. 
 
24. In any event, Mr Carr submits that section 232B has no application in relation to breach of UNITE’s obligations under section 226A (notice of the ballot), and section 234A (notice of industrial action), because these sections are not included in the list of relevant sections contained within section 232B(2).

25. UNITE denies that the VR members were deliberately or unreasonably included in the ballot notice or the strike notice. They state that every effort was made to ensure that they were not included. In the circumstances Mr Hendy QC, appearing for UNITE, submits that any breach of the ballot requirement in section 227 was accidental and that any failure to comply was on a scale which was unlikely to affect the result of the ballot and should therefore be disregarded. He invites me to adopt a purposive construction to these statutory provisions, relying on the words of Millett LJ in London Underground Limited v NURMT [1995] IRLR 636 at para 37, where he said:

“Parliament's object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity, but to ensure that such action should have the genuine support of the members who are called upon to take part. The requirement has not been imposed for the protection of the employer or the public, but for the protection of the union's own members…..”

26. In his skeleton argument Mr Hendy developed, in some detail, a series of interesting submissions relating to the incompatibility of domestic legislation with the rights of UNITE under Article 11 of the European Convention on Human Rights.  He did not advance these submissions orally, accepting that I am bound in this respect by the recent decision of the Court of Appeal in Metrobus v UNITE [2009] IRLR 851.
 
27. After reviewing human rights jurisprudence and considering Mr Hendy’s submissions on Article 11, the Court held in that case that the statutory requirements relating to ballots and strike notification Part V of the 1992 Act do not unduly restrict the exercise of the right to strike; that the legislation has been carefully adapted over many years, in order to balance the interests of employers, unions and members of the public; and that its provisions are proportionate. That decision is binding on me and I therefore decide this application on the basis of the statutory provisions to which I have already referred.  Mr Hendy is right, however, to draw attention to the United Kingdom’s international obligations to recognise the right to strike contained in a number of instruments, including the Freedom of Association and Protection of the Right to Organise Convention (No. 87) of the International Labour Organisation, which the UK was one of the first member states to ratify, in 1949.  Sooner or later, the extent to which the current statutory regime is in compliance with those international obligations and with relevant international jurisprudence will fall to be carefully reconsidered.

The Evidence
28. I turn then to the relevant facts.
 
29. Against the recent background, well-known and in the public domain, of severe trading difficulties for the aviation industry generally, and for BA in particular, BA embarked upon an extensive cost-cutting and efficiency exercise. As part of this exercise, in June 2009 they filed an HR1 Form with the Department of Business, Innovation and Skills, stating that it was seeking to reduce cabin crew headcount on a voluntary basis by about 2,000.

30. Collective consultations with UNITE about these proposals commenced and it appears that a total of 1,003 employees, including 580 who were on the check-off system, agreed to accept voluntary redundancy and left, as it transpired, between the end of October and 15th December 2009. I shall return to this later on. 

31. Further negotiations to reduce the headcount beyond the figures obtained by voluntary redundancies have proved unsuccessful. The union contends that the further reductions proposed are unlawful, because its collective agreements with BA create a right for individual employees to allege that BA are in breach of contract in reducing cabin crew numbers. BA disputes this.

32. In November 2009, UNITE issued proceedings in the High Court seeking an interim injunction to prevent BA from introducing the revised and reduced crew complements at Heathrow. At a hearing on 5th November, UNITE’s application for interim relief to prevent these reductions being introduced was refused.  However, the judge did order a speedy trial of what is accepted to be a serious issue requiring determination, namely the alleged breach of contract by BA in imposing these reductions. This trial is now fixed for 1st to 5th February 2010. 

33. There are before me allegations and counter-allegations as to the conduct of the parties arising out of the existence of this litigation. BA says that UNITE has deliberately decided not to await the outcome of this trial, by moving swiftly to ballot for industrial action so as to cause maximum inconvenience over the Christmas period. UNITE says that BA has deliberately decided not to await the outcome of this trial by moving swiftly to impose reductions unilaterally as from 16th November 2009, leaving aggrieved employees no choice but to exercise their right to take industrial action. 

34. This is neither the time nor the place for consideration of allegations of that kind. Whilst they illustrate the extent to which feelings are running high on both sides in this dispute, they do not assist me in determining, on the evidence available, whether to grant the injunctive relief sought.  Regret for the state of affairs which has resulted in this litigation has been expressed by both sides to this dispute, from their different perspectives.  BA is acting to protect its commercial interests.  UNITE is acting to protect its members’ interests. Assessing the relative degrees of blameworthiness for the current impasse resolves nothing. UNITE is entitled in law to ballot its members for industrial action, but in order for the union to be protected from suit for the damage that may result the law presently requires them to comply with all the statutory provisions contained in Part V of the Act, to which I have referred. 

35. It is not in dispute that a substantial number of those taking voluntary redundancy were in fact included in all three stages of the balloting and notification process. The crucial question in this case is what the evidence shows that the union knew or understood to be the case, and whether the evidence before me supports the union’s submission that it can rely on (a) the “reasonable practicability” defences, in relation to the ballot notice and the strike notice; and (b) on the defence of reasonable belief as to who would be induced to take part in industrial action, contained in section 227, and the specific defence accorded in respect of that section in section 232B (accidental failures).

36. I turn, therefore, to what that evidence shows, and I shall consider first the matters which were relied upon by BA.

37. By the letter dated 6th November 2009 UNITE sent notice of its intention to ballot its members for industrial action, i.e. cabin crew members of the union. This letter included the following passage:

“Please note that the following description has been prepared from central membership records which have been checked and updated as necessary for this ballot.

Your employees who will be entitled to vote will be those who are members of Unite the Union employed by you – British Airways PLC – at Heathrow (Worldwide Fleet) Heathrow (Eurofleet) and Gatwick (Single Fleet) in the categories of Main Crew, Purser, Cabin Manager and Cabin Services Director.

Those members in the above categories who pay union subscriptions through check-off are known to you, including their category and workplaces, and we believe that they number 11190.

A number of, we believe 1590 members pay union subscriptions by means other than check-off.

The attached matrix provides such information as the union possesses about the non check off members.

We believe that the total number of your employees who will be entitled to vote in the ballot (both check-off and non check-off) is therefore 12780.

The explanation of how we arrived at this information with regards to non-check off members is that it is derived from information in our possession relating to the numbers, category or workplace of such members which is held in any document, including any document in electronic form, which is in the possession of any union officer or employee.”

38. There was then a list of the union officers or representatives said to have checked this information, and the letter concluded with the following words:

“The information set out in this notice is as accurate as possible in the light of the information in the possession of the union at the date this notice is given.”

39. It is not in dispute that those figures included a number of those volunteering for redundancy. Nor is it in dispute that the voluntary redundancy programme has in fact resulted in the following numbers of cabin crew ceasing to be employed by BA:

(1) 192 employees leaving on 31st October 2009;
(2) 742 employees, including 532 on the check-off system, leaving on 30th November 2009;
(3) 69 employees, including 48 on the check-off, leaving on 15th December 2009.

40. The letter of 6th November made no reference to the fact that UNITE recognised the need to exclude from the balloting process those who would be leaving BA in November and December; or to the fact that the union would be taking steps to ensure that they did not vote.  Nor did it contain any requests to BA for further information about those employees who were taking voluntary redundancy.  The explanation advanced for the non check-off figures provided says no more than that those figures were derived from information in the union’s possession.  In relation to the check-off employees, the plain meaning of the statements made is, in my view,  that the union reasonably believed that all 11,190 of its members were entitled to vote on the basis that they would be induced to take part in any future strike action.

41. Mr Carr submits that the union cannot reasonably have believed that figure to be accurate, because they knew by then that hundreds of members would be leaving on voluntary redundancy terms.  He relies on the following facts which he says are demonstrated by the evidence before the court:

(i) the fact that UNITE was in general well aware of the voluntary redundancy programme and of the potentially large numbers of members who would be involved in it;

(ii) the fact that on 12th October 2009 representatives of the union attended a Manpower meeting at which it was confirmed, on behalf of BA, firstly that all cabin crew who had applied for voluntary redundancy were to be released from employment with effect from 30th November 2009, with the exception of Cabin Service Directors (“CSDs”) on BA’s Worldwide Fleet, who would go on 15th December 2009; and secondly, that a total of 1,011 cabin crew would leave under the voluntary redundancy programme, including 192 who were to go on 31st October 2009, with the last departures being the CSDs on 15th December 2009.

42. Miss Slinger (for BA) states that the minutes of that meeting were provided to the union, and that two of the union’s officers who were in attendance at the meeting wrote down the figures that had been stated by BA with regard to the numbers involved and the timing of their departures.
 
43. Mr Turner, in his first witness statement submitted on behalf of UNITE, states that at this meeting the union was given only intended members of redundancies in the various categories, together with proposed dates of termination.  They were not given the identities of those who were to be made redundant, and there was no indication that that information would be forthcoming, so that the union did not know which members were to be made redundant and when.

44. Clearly, the identities of those to be made redundant were not before the union on that occasion. However, an email dated 12th October from some of those union personnel attending this meeting suggests to me a more detailed knowledge than Mr Turner’s statement suggests.  Mr Loveland refers to the leaving dates as 31st October for the initial group, followed by 30th November for everyone else, save for the Worldwide CSDs who would leave on 15th December. A table then sets out the headcount figures for voluntary redundancies, disaggregated by fleet and cabin crew categories, with a total of almost 1,000 employees. 

45. This evidence indicates to me that it was known to the union by 6th November, when the ballot notice was sent, that these numbers and categories of employees would be leaving BA’s employment on or before 15th December. Given the period of time that would have to elapse before the statutory balloting requirements were completed and the strike could be called, the union would also be aware at this time that the earliest date for strike action would be after 15th December 2009.

46. Mr Carr relies further on the fact that UNITE was served with a witness statement from William Francis (for BA) dated 4th November 2009, in preparation for the court hearing on 5th November. At paragraph 58 Mr Francis provided further details regarding those taking voluntary redundancy, referring to 742 staff leaving on 30th November, with a further 69 people going on 15th December. Mr Carr submits that the union was therefore well aware that, by the date of any industrial action, a further 811 members of the cabin crew staff would have left BA’s employment.

47. In the light of the information in UNITE’s possession as at 6th November, it therefore seems clear that the union was aware, or certainly ought to have been, that the figures provided to BA in the ballot notice included a substantial number of those who were shortly to leave on voluntary redundancy, and therefore included members who the union could not reasonably have believed would be entitled to vote in the ballot.  It also seems clear that the fact that ballot papers were subsequently issued by the union to the members identified in the ballot notice must be subject to the same criticism. The union must have been aware that the total number issued included a substantial group of employees who had no entitlement to vote. 

48. Mr Carr submits that the decision not to exclude those employees leaving in November and December appears to have been a deliberate one, taken in the knowledge of the importance of providing BA with accurate information in relation to a ballot for industrial action. He relies on the fact that, on 7th October 2009, UNITE posted a communication on the BASSA website headed “Calling all leavers”.  This said as follows:

“In the interest of keeping the BASSA database as accurate as possible would all members who are due to leave BA this month please inform us via the following address with details of date of leaving and staff number.  Good Luck for the future.
…….
If you have recently joined up from CC89 and received their latest correspondence that will mean you are still on their database and you will need to contact them to have it removed.  Also if anybody knows of anyone who has left BA over the last few months please encourage them to confirm their departure to BASSA as BA never let us know the name of the leavers.  With a ballot looming it is important we are scrupulous in our administration.  Regards….. ”

49. There is no evidence that any similar posting was provided to alert those employees leaving in November and December to the importance of confirming their leaving date. On the contrary one month later, on 12th November 2009, a union member posted a question on the BASSA website asking the following question:

“I was just wondering if all the crew that are leaving under VR at the end of Nov will be able to vote in the ballot or not?  As they will no longer be employed by the company at the time of the strikes will their vote be void?”

50. The answer posted back within a few minutes by the BASSA Branch Chair and member of the NEC, Ms Lizanne Malone, stated: “As long as your  employed when you vote, it is ok.”   

51. I reject BA’s submission that the evidence is indicative of a deliberate decision by the union to include the VR leavers in the balloting process. In my view, the state of the evidence does not permit such a finding and UNITE strongly denies the allegation.

52. However, nor do I regard as satisfactory Mr Turner’s explanation, in his first witness statement, that Miss Malone simply “answered the question in good faith from her own understanding” and that it “did not represent the considered view of the union.”  Since Miss Malone’s name appears amongst those named, in both the ballot notice and the notice of industrial action, as having checked the accuracy of the information provided to BA, this weakens the suggestion made by Mr Turner that a great deal of effort went in to checking the records to ensure that the union excluded from the process all those who would have left by the time of any strike. 

53. It also considerably weakens the union’s submission that this was merely an “accidental” failure, which should be disregarded under section 232B, and I shall return to that later on.

54. There is no witness statement before me from Miss Malone herself. In his second statement, served this morning, Mr Turner says that he has now checked the website viewing data and, as at 4.25 p.m yesterday, that data showed that only 176 viewings were made of Miss Malone’s posting. From this, he seeks to suggest that her posting would have had no tangible effect upon this ballot.

55. I do not consider that this is a fair conclusion to draw.  This was a statement posted on the website in answer to a member’s question directly on the point. It was sent by a Branch Chair and member of the union NEC.  It was then left there throughout the entire balloting process and was still there yesterday afternoon. The number of people who read it or became aware of and relied upon the advice it contained is unknown.  It is simply not possible to say that this message, conveyed in this way and from a senior member of the union, would have had no tangible effect upon this ballot or those participating in it.

56. What, then, is the evidence upon which Mr Hendy relies in support of his submission that the union can rely on the statutory defences contained in section 226A(2D), 234A(3D) and 232B?  He submits essentially as follows.

57. First, the evidence shows that the union made “huge efforts” to ensure that the figures provided to BA were correct. He relies on passages in the second statement of Mr Turner and in the statements of Mr Veakins and Mr Marley, to which he drew my attention. He submits that these refer to:

(a) downloading the union’s database of members, and checking the details against the information available in the BA system and spreadsheets, so as to try to rule out anyone on the check-off who was no longer a member of the union. It appears that at least some names were removed in this way.

(b) giving advice on a hotline to those members who raised questions about who should vote, and informing them that if they were VR leavers they should not vote.

58. Secondly, Mr Hendy submits that that there was no clarity or certainty as to when, or if, any particular individual would in fact leave on voluntary redundancy. Those who were going were known to BA, but not to the union. The dates on which people were leaving also tended to change over time.
 
59. Thirdly, Mr Hendy submits that there was intransigence on the part of BA in disclosing to the union the names of those who were to be made redundant. BA knew who was to be made redundant and when they would be leaving, but the union did not possess this information. It was therefore reasonable, he submits, for the union to believe that all the members to be balloted would be induced to take industrial action, unless and until some of them were made redundant.

60. This submission is clearly predicated on the fact that the union knew that some of its members would not in fact be taking part in the industrial action, but that it went ahead with the ballot anyway because it could not discover who those members were;  and that it was reasonable for UNITE to adopt this approach.

61. Fourthly, Mr Hendy submits that before the notice to strike was served, Mr Turner makes clear in his witness statement that he had himself spent  considerable time re-checking the position and taking account of the spreadsheets he received relating to November and December. Mr Turner refers to having himself removed 101 names from the membership database at this stage.  Thus, says Mr Hendy, this evidence shows that the union was doing all that was reasonably practicable in the circumstances at this stage of the process in addition.

62. Fifthly, Mr Hendy submits that the union’s belief as to who would be induced to take part in the strike was reasonable, for the purposes of section 227 and the ballot itself.  Alternatively, he submits that he is entitled to rely on the provisions of section 232B, there having been an accidental failure in terms of including any members who were not in fact entitled to vote.  This is on the basis that, although the union did not want to include those who were taking voluntary redundancy, they were simply unable to discover who all these people were. This was therefore something which was forced upon them, rather than something that they wished to happen. It was, in this sense, something which was unintentional or unavoidable, which he submits falls within the meaning of an “accidental” failure under section 232B(1)(b).

63. In relation to all these statutory defences Mr Hendy accepts that the union cannot just sit on its hands, say no more than that it does not have the necessary information, and make no effort to obtain information which is relevant to that which they have to provide.  I was referred in this respect to a recent judgment of Blake J in the case of EDF v NURMT [2009] EWHC 2852 QB, where he makes observations to this effect at paragraph 18(5) to (8), observations with which I respectfully agree.  Mr Hendy’s submission is that, whilst UNITE could not sit on its hands, the evidence shows that it was neither practicable nor reasonable for the union to discover who amongst its members was to be made redundant and when.

64. I have considered the evidence and Mr Hendy’s submissions carefully, alive as I am to the inordinate complexity of the statutory procedures, to the need to give effect to the words of Millett LJ in the London Underground case, and, as Mr Hendy put it, to the clearly expressed wish of the union, after Metrobus, to “get it right”.  On analysis, however, the evidence upon which he relies in this case does not avail him.

65. Having read all the evidence submitted on behalf of the union, and recognising the haste in which it had to be obtained in order to enable it to respond to this application, I nevertheless find that some obvious questions remain unanswered.  I fail to see why it was not practicable or reasonable for this union to enquire of its membership whether they were leaving in November and December. Sensible steps had been taken in October, as can be seen from the 7 October posting referred to above.  For reasons which are unclear, no similar exercise was conducted for November and December, even when the union was aware, on its own case, that a substantial number of its members would then be leaving and would not, therefore, be entitled to vote. 

66. Further, even allowing for the union’s concerns as to the accuracy of its figures, there is no document before me which shows that the union ever issued clear instructions to its membership, informing them that if they were leaving in November and December they were not entitled to vote and must not vote in the ballot.  That, in my view, would have been both a practicable and reasonable step for this union to take in the circumstances. It was not taken however, despite there being opportunities to include such instructions in some of the documents, bulletins and postings to which my attention has been drawn in this hearing.  A number of these provided information or instructions relating to the ballot and the balloting process generally, but all of them were silent on this important point. 

67. The posting by Ms. Malone, which the union accepts gave members legally incorrect advice directly on the point, could have been removed from the website, but it was not.

68. In relation to the November hotline referred to by Mr Marley (at paragraphs 4-9 of his statement), I agree with Mr. Carr that the effect of this evidence is that the matter was left entirely to chance. If a caller happened to ring the hotline, indicating that he was due to take voluntary redundancy, then he would be told not to vote and to destroy the ballot. This happened on a few occasions.  The primary purpose of this hotline, however, on Mr Marley’s own evidence, was to help in making sure that those members entitled to vote received their ballot papers, not to weed out the voluntary redundancy leavers in order to exclude them. It is not possible to rely on this evidence as demonstrating that everything reasonably practicable was done to ensure the accuracy of the information being provided to BA.

69. In relation to the alleged intransigence of BA, the evidence about this, at paragraphs 12 to 14 of Mr Marley’s statement, is limited to a couple of telephone calls made to an unidentified individual, taking place at around 7th or 8th December, by which time no doubt the entitlement to vote had in any event been extended to and exercised by many hundreds of people who were in fact leaving on voluntary redundancy and should not have voted.  The calls therefore came too late, and this evidence is in any event insufficient to support an allegation of intransigence. 

70. The remainder of Mr Marley’s evidence, and much of Mr Turner’s evidence, relates to the way in which the union sought to keep its membership details accurate and up to date. I agree with Mr Carr, however, that none of this evidence addresses the vital question of the steps taken by the union to ensure that members not entitled to vote did not in fact vote. Nor does their evidence about the unsatisfactory appearance and layout of the spreadsheets, and the suggestion that the information contained is confusing, take this point any further. 

71. The other evidence concerning the alleged intransigence of BA is contained in the statement of Mr Veakins, at paragraphs 5 to 12.  He contends that he made specific requests to Mr Ayres of BA to provide him with the information as to the voluntary redundancy leavers, and that Mr Ayres refused those requests. Mr Ayres, however, disputes this allegation, and the matter is therefore incapable of resolution at this hearing.  In any event, this evidence relates to a conversation taking place in the week of 7th December. At its highest, therefore, it could go only to the defence available to the union under section 234A.

72. In my judgment, there is insufficient evidence before me to indicate that any of the inaccuracies in information being provided by the union was due to intransigence or a lack of co-operation on the part of BA.

73. Mr Veakins’ reference at paragraph 13 to sending a text to one named person, with information that a voluntary redundancy leaver should not vote, takes the matter no further. Further, the SMS text message referred to by Mr Turner in his second statement, sent on 23 November 2009 to those members who had provided their mobile numbers to the union, said only this: “If you have left or are leaving BA, good luck and please tell BASSA by emailing [address]. If you are staying, please remember to vote Yes.”  This is hardly a clear instruction to the membership not to vote if they were leaving, and it does not seem to me to address the specific problem, particularly when read in the light of the website posting from Ms Malone, to which I have already referred.

74. The documentary evidence referred to by Mr Hendy as indicating the union’s uncertainty about the numbers taking voluntary redundancy relates in fact to September 2009. The other evidence I have referred to above shows, as indeed he accepts, that the position became much clearer as time went by, and as the numbers specifically referred to as departing in late October and then in November and December were clarified.

75. Events moved on. Before the ballot closed on 14th December BA wrote to UNITE on 11th December, asking them to confirm the accuracy of the numbers and asking whether or not voluntary redundancy leavers had in fact been included in the figures.  Unite did not reply.  Whilst this no doubt reflects the state of the relationship between the parties by this stage and the realities of an intense industrial dispute, it undermines the explanation now being advanced for breaches of the statutory requirements that UNITE had done its best to ensure both that the figures were accurate, and that those leaving on voluntary redundancy had been removed from the list of those entitled to vote.  If, as UNITE contends, its attempts to ensure the accuracy of the information provided were being thwarted by BA, this was surely the occasion to point this out in reply. The union did not do so, in circumstances where I find that it was clearly on notice that the figures it had been providing were or may have been inaccurate, and that the balloting process was therefore flawed.

76. In the absence of a response from the union, BA wrote a more detailed letter on 14th December, i.e. the day that the ballot closed. This informed the union in the clearest terms that BA was concerned as to the inclusion of voluntary redundancy leavers in the process. Rather than respond to that concern, however, UNITE served on BA the result of the ballot and the notice of industrial action. There is no dispute that that notice once again included in the figures both those employees who had left on 30th November and those who were due to leave on the following day.  In fact, the total number of employees referred to dropped from 12,780 on 6th November to 12,605; a reduction of 175 in relation to the non check-off employees. Thus, it appears that a relatively small number of voluntary redundancy leavers had been removed from the list at this stage, although, as Mr Carr points out, this would suggest that they had in fact been accorded the entitlement to vote at an earlier stage in the process. The number of check-off employees had in fact increased slightly, for reasons which are not entirely clear, but which is irrelevant for the purposes of this application. 

Conclusions
77. In this judgment I have summarised the main features of the evidence relied on by both sides, although I emphasise that I have read all of it. As far as the evidence relied on by UNITE is concerned,  I do not consider that it provides the union with any real prospect of success in establishing either of the reasonable practicability defences for the purposes of their statutory obligations under section 226A and 234A. 

78. Further in relation to section 227, I do not consider that there is evidence capable either of establishing that UNITE held a reasonable belief in the entitlement to vote of all its members, or enabling it to rely on an “accidental failure” within  section 232B.  In my judgment, an unintentional failure, as it was categorised by Mr Hendy in the circumstances of this case, cannot be regarded as an accidental failure within the meaning of that section, even applying a purposive construction to its provisions. Mr Hendy does not therefore surmount the first hurdle that he must do in order to rely upon that defence.

79. In the circumstances, there is no need for me to go on to consider the interesting arguments advanced before me as to the meaning of the second limb of section 232B(1)(b), and whether a prospective or retrospective test is to be applied in deciding whether the accidental failure is “on a scale which is unlikely to affect the result of the ballot.”  I shall say no more about that in this judgment.

80. In considering whether or not to grant this injunction I have had regard to the provisions of section 221(2) of the 1992 Act, and the adjustments to the American Cyanamid test required when a court is considering an application for an interlocutory injunction against a party claiming to have acted in furtherance of a trade dispute.  On the present state of the evidence, the union’s prospects of succeeding on the statutory defences at trial are in my judgment poor, for the reasons that I have given.

81. I turn then, to the question of relief. Mr Hendy realistically accepts that damages would not be an adequate remedy for BA and rightly acknowledges, as is the fact, that if this strike were to proceed the damage likely to be sustained by BA is grave indeed. He points out on behalf of his client, however, that UNITE and its members would also suffer serious damage if this strike, which was voted for by an overwhelming majority of those members, was not allowed to proceed.  In addition, Mr Hendy places reliance on the fact that BA has pointed to no detriment caused to the airline, from what he describes as merely “technical failures” by the union to comply with the legislation. He acknowledges, however, that I can and should have regard to the wider public interest in considering whether or not to grant the relief sought.

82. I do not consider that the breaches of these statutory provisions should be described as technical failures. A more accurate description is perhaps that they are breaches of technical requirements. Whatever the correct description, however, and notwithstanding the overwhelming support for industrial action demonstrated by UNITE’s membership, the fact remains that these are procedural requirements contained in an Act of Parliament, which all trade unions must currently comply with if any call for industrial action is to be lawful and the union is to have immunity from suit. 

83. A strike of this kind taking place now, over twelve days of the Christmas period, is in my view fundamentally more damaging to BA, and indeed to the wider public, than a strike taking place at almost any other time of year. For the reasons I have given the balance of convenience, in my judgment, lies firmly in favour of granting relief.  BA is therefore entitled to the injunction sought.