IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION

Royal Courts of Justice
Date: Wednesday, 3rd November 2004
Before:

MR. JUSTICE PITCHERS
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B E T W E E N :

LEARNING & SKILLS COUNCIL	Claimants

-  and  -

THE PUBLIC AND COMMERCIAL SERVICES UNION	Defendants
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MISS J. EADY  (instructed by the Treasury Solicitor)  appeared on behalf of the Claimants.

MR. J. HENDY QC  (instructed by Thompsons Solicitors)  appeared on behalf of the Defendants.
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J U D G M E N T

MR. JUSTICE PITCHERS:  

1	This is an application by the claimants for an interlocutary injunction against the defendants to prevent a strike scheduled to take place on Friday of this week, in respect of which the defendants have called out their members who work for the claimants.

2	I start by the correct approach to this sort of injunction, which is enshrined in s.221 of the Trade Union and Labour Relations (Consolidation) Act 1992, appearing after the Act.  Sub-section 2 of that section says this:

“Where -

“(a)	an application for interlocutory injunction is made to a court pending the trial of an action, and 

“(b)	the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute,

“The court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party’s succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219” [and I omit the last words as irrelevant].

3	First, the parties to these proceedings:  The claimants, the Learning and Skills Council, are a statutory corporation established by the Learning and Skills Act 2000 to fulfil the statutory duties set out in that Act, effectively taking over some of the functions of the former Training and Enterprise Council, many of whose staff transferred to the claimants.  Their employees are not civil servants.  They set their own terms and conditions of employment.  They are, however, almost entirely funded by the government and, in particular, the DFES.  They are properly described as a non-departmental public body.  The defendants are the Public and Commercial Services Union, who have amongst their members 1,734 out of a total of 4,000 staff of the claimants, and it follows from that that they are recognised by the claimants and have entered into a joint recognition agreement with them.

4	The issues in the case are clear.  Firstly and primarily, is there a trade dispute between the parties?  The claimants say that there is not.  If there is not, it is common ground that the actions in bringing the Union members out on strike on Friday would be unlawful because they would not be protected by s.219 of the Act.
5	Second, in question is whether the proposed action on Friday would be in furtherance of a trade dispute.  I say “second in question”, because it is accepted by both sides that the test in relation to that second question is a subjective one and it is not seriously argued that the defendants do not genuinely believe that their proposed action on Friday is in furtherance of the trade dispute.

6	The crucial question then, to which I turn, is whether there is a trade dispute between the parties.  The meaning of trade dispute is set out in s.244 of the Act.  I quote such provisions as might be relevant to this case:

“(1)	In this Part a “trade dispute” means a dispute between workers and their employer which relates wholly or mainly to one or more of the following:

“(a)	terms and conditions of their employment, or the physical conditions in which any workers are required to work;

“(b)	engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

“(c)	allocation of work or the duties of employment between workers or groups of workers”.

The remaining sub-sections have no application to this case.

7	The test to be applied is, it is agreed, an objective one, although I shall have to say something more about what that means in practice.  It is conveniently set out in Harvey at para.2709:

“Where, however, the defendant claims to act in contemplation of an impending dispute, it is not enough for him to say that he was subjectively contemplating a dispute that might occur, however honest his belief.  The test of whether there is a dispute, actual or imminent, is objective.  There must be evidence of facts from which it may reasonably be inferred that there is or is about to be a dispute”.

8	The words of Lord Shaw in Conway v. Wade (1909) A.C., p.522 are there cited that both sides agreed that this is an accurate statement of the law:

“My Lords, I think the argument is well founded.  The contemplation of such a dispute must be the contemplation of something impending or likely to occur, and that [the words] do not cover the case of coercive interference, in which the intervener may have it in his own mind that if he does not get his own way he will thereupon take ways and means to bring a trade dispute into existence.  To “contemplate a trade dispute” is to have before the mind some objective event or situation, with those elements of fact or probability to which I have adverted, but does not mean a contemplation, meditation, or resolve in regard to something as yet wholly within the mind and of a subjective character”.

9	However, in my judgment, the fact that the test is objective does not mean that the state of mind of the parties is irrelevant.  A dispute, by its nature, involves disagreement between two people.  In deciding whether there is a dispute between two people, a court is bound to look at what is in their minds as part of the evidence in deciding whether objectively a dispute exists.  To be prepared to consider evidence of what is in the parties’ minds is not to turn the test, in my judgment, into a subjective one.  It remains objective but the state of minds of the parties is part of the evidence from which the court draws conclusions as to whether objectively a dispute exists.

10	I turn then to the facts of this case.  The evidence before me consists of two full and helpful statements, one from each side; from Mr. Russell, Director of Corporate Services of LSC and Mr. Lanning, Deputy General Secretary of PCS.  

11	The starting point for what is said to be a dispute in this case is the statement by the Chancellor of the Exchequer in July 2004 about the government spending review.  As part of that statement, he announced substantial job cuts across the public service and other savings.  Incorporated into his statement were the conclusions of the Gershon review into departmental efficiency.  That set out a number of changes across the public service.  

12	So far as is relevant to these proceedings, para.C3 sets out the targets for the DFES and again relevant to these proceedings is bullet point 5, which says as follows:

“There is an intention to free up resources from the costs of the Department, its non departmental public bodies (NDPBs) and OFSTED by reducing overlaps, simplifying systems, better procurement, rationalisation of back office functions through simplified standard processes and common systems, and reducing the total administration costs of these organisations by at least 15 per cent”.

13	I pause there to repeat that the claimants in this case are an NDPB, funded almost entirely by the DFES.  Also, as part of the Chancellor’s announcement, there was the following statement, at para.2.13:

“The government will therefore continue to manage carefully pay growth across the public sector so that resources are directed to frontline delivery.  Greater focus will need to be given to the total reward package for public sector workers, including flexible work arrangements and pensions”.

Para.2.14 reads:

“Better management of sickness absence in the public sector should release resources to meet priorities and release employees with good attendance records from the pressures of covering for absent colleagues”.

Those comments are not restricted to the Civil Service, but speak of the public sector generally, of which of course the claimants are a part.

14	There is no doubt in the present case that, as a result of that statement by the Chancellor, a trade dispute has arisen between the Union and those who employ civil servants.  It is in furtherance of that trade dispute that they seek to bring their members out on strike on Friday.  The question, in this case, is whether LSC are included in that dispute.

15	Both sides rely upon the correspondence that has passed between the parties in September and October, and I turn now to that.  On 9th September 2004 the Council for Civil Service Unions, of which the defendants in this case are one, wrote to Sir Andrew Turnbull, Head of the Civil Service and Cabinet Secretary.  In it, they sought on behalf of the Council six guarantees from the National Whitley Council for union members working in the Civil Service.  There were then six headings, setting out the guarantees that they sought.

16	On 13th September the PSC group secretary, Mr. Lloyd of the Union, wrote to the claimants’ chief executive, Mr. Haysom, seeking from him very similar guarantees.  I say very similar because the wording of the six headings of guarantee is almost identical with the six heads of guarantee sought of Sir Andrew Turnbull in the letter of 9th September, simply altering, in effect, references to the Civil Service to references to the Learning and Skills Council.  

17	That is relied upon by the claimants as indicating that this was not a real dispute between the Union and them, but was simply bolted on, pretending to be a separate dispute, so as to broaden the ambit of the action which might follow, and will follow on Friday, other things being equal.  The dispute, therefore, say the claimants, was a sham.

18	Correspondence followed.  Mr. Levitt, on behalf of the claimants, wrote to Mr. Lloyd on 21st September, saying that the Council was not part of central government and its employees were not civil servants, nor governed by the Civil Service terms and conditions, and drawing attention to the fact, which is true, that the job reduction programme (the euphemism being “reshaping”) had been concluded successfully, and hence any job reductions had already taken place.

19	On 23rd September Mr. Lloyd wrote again indicating that a ballot would take place of members of their Union within the claimants’ organisation.  Mr. Levitt responded again, really reiterating what he had earlier said, that there was no dispute between the parties.

20	On 29th September Mr. Lloyd wrote to Mr. Levitt, saying that they had not received the assurances that they had sought by the letter of 13th September.  They received a full response from Mr. Levitt by a letter dated 30th September, in which he set out his reaction and his organisation’s reaction to the six heads.  

21	The point made by the defendants is that, throughout the letter, the assurance they have been given is that there are no proposals to do X, Y or Z; for example:

“1.	Job Security:  We have already made it clear that LSC is not proposing to make any further job reductions”.

“2.	Change of employer and allocations of duties:  There are no proposals to transfer out any more of the LSC’s function”; and so on throughout the letter.

22	The claimants say that that demonstrates that there was no dispute, because they had given all the reassurances that the defendants could expect.  The defendants say that all that is given is the assurance that there is no proposal, not that a proposal might not be carried through in future, and what they sought was an absolute assurance that there would, for example, be no more job cuts, and the like.

23	On 13th October there was a meeting between the two sides where issues were discussed.  In the papers there is a minute of that meeting.  It is clear that that meeting discussed various assurances given by the claimants, and whether they were acceptable to the Union.  It is clear also from the minute of that meeting that the Union was not accepting that the assurances that they had been given by the claimants were adequate.  They were not accepting that, if there had been a dispute, it was now over.  They set that out in writing by letter dated 21st October 2004, from Mr. Lloyd (again) to Mr. Holt, the HR director of the claimants, indicating those respects where they said that the assurances fell short of what they required.

24	That then is the factual background as set out in the correspondence, and I turn to answer the question that I posed earlier.  Before answering the question, it is as well for me to remind myself what questions I am not called upon to decide.  I am not called upon to decide whether this strike action is justified.  I am not called upon to decide who is right in the dispute between the claimants and the defendants; still less, plainly, in the dispute between the government and the Union.  I am not called upon to decide whether, if this were not part of a bigger picture, it would have come to strike action at all.  

25	The question that I have to ask myself is whether there is a trade dispute between these parties.  In my judgment, the Chancellor of the Exchequer’s statement, or those parts of it that I have quoted, raise legitimate concerns in the Union’s mind about the effects of that statement upon NDPB employees.  Further, despite the fact that the restructuring of LSC had already taken place, those reforms were arguably capable of impacting upon LSC.  

26	The Union, in my judgment, was not bound to regard the assertion that there were no proposals to do the various things that they said there were no proposals to do, as removing the dispute altogether.  Therefore, in my judgment, a genuine dispute exists between the parties without, I repeat and emphasise, my expressing any views about what the rights and wrongs of that dispute are.

27	If such a genuine trade dispute exists, as I have found that it does, then it is in my judgment more likely than not that the defendants would succeed in establishing a s.219 defence in trial of any action.  That being so, reminding myself of the terms of s.221.2 of the Act, it is in my judgment not appropriate to order an injunction in this case.  Accordingly, this application is refused.