In Thomas Cook Airlines Ltd v British Airline Pilots Association the court refused to grant an interim injunction preventing strike action by a trade union.
The British Airline Pilots Association (“BALPA”) were in a dispute with Thomas Cook Airlines Ltd (“Thomas Cook”) over the pay and conditions of the pilots it employed. BALPA union members were asked to vote on a ballot paper containing the words: “It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8th September 2017 to 18th February 2018“. Union members voted in favour of strike action and Thomas Cook applied for an injunction.
The dispute fell within the remit of Section 229(2D) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA 1992”). This provision, which has been in force since 1 March 2017, states a union must indicate “the period or periods within which the industrial action, or as the case may be, each type of industrial action, is expected to take place” on the ballot paper.
Thomas Cook argued the wording used fell foul of section 229(2D) as BALPA had not set out specific dates on which it expected to take strike action. BALPA argued it would be impractical to provide specific dates as such dates depended on factors including the progress of negotiations and the number of votes in favour of the ballot. The union submitted it had complied with the ordinary meaning of section 229(2D).
High Court decision
Mr Justice Lavender held the normal American Cyanamid principles pertaining to interim injunctions did not apply. Rather, an alternative test set out in section 221(2) of TULRCA should be used which asked “is it more likely than not the defendant failed to comply with section 229(2D)?”
Rejecting Thomas Cook’s application, Mr Justice Lavender considered that planning industrial action was a dynamic and reactive process and the word “expected” in section 229(2D) should be interpreted accordingly. The subsection did not specify the level of detail required.
The judge stated a court was unlikely to require more detail than BALPA had included in its ballot paper or else it would raise uncertainty as to how much more detail was required and potentially make the provision unworkable. He recognised industrial action is contingent both on factors which are not known prior to the ballot papers being sent out to members and other variables outside the control of the defendant.
Thomas Cook were refused leave to appeal on the grounds the position was sufficiently clear and were ordered to pay BALPA’s legal costs in full.
This ruling is significant as it is the first authority on the correct interpretation of section 229(2D). Whilst it is not favourable to employers, it indicates that providing the wording on a ballot paper incorporates dates in compliance with the core meaning of section 229(2D), an injunction will not be granted.