Ballot paper test case: Thomas Cook Airlines Limited vs British Air Line Pilots’ Association

Alice Yandle and I recently successfully advised the British Air Line Pilots' Association (BALPA), following an application by Thomas Cook Airlines Limited for an injunction to try and prevent pilots from striking on 8 September. The injunction hearing focused on what period for industrial action should be referred to in the ballot paper.

As readers will be aware, an employer is prevented from (i) suing a trade union for inducing members to breach their contracts by striking and (ii) (to a more limited degree) from dismissing striking employees, provided the strike action has been called in accordance with strict conditions laid out within the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA"). Given the immunities provided within the Act, it is very important that the trade union does abide by these strict conditions.

A number of new and/or varied conditions in relation to the industrial action balloting process were introduced by the Trade Union Act 2016 and came into force on 1 March 2017. One of those new requirements is set out in Section 229(2D) of TULRCA and states that the union must indicate in its ballot paper "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". This was the provision at the centre of Thomas Cook's application.

In BALPA's ballot paper it, based on the requirements of section 229(2D), stated that: "It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8 September 2017 to 18 February 2018".

Thomas Cook argued that this wording was not, however, specific enough and that BALPA should have, for example, set out the specific dates on which it was expecting to take strike action. BALPA, in turn, argued that it had complied with the ordinary meaning of section 229(2D) and it would be impracticable to require it to provide specific dates, given that the specific dates for strike action would be very much dependant on matters such as, by way of example, the size of the mandate provided as part of the ballot process and the progress of any ongoing pay negotiations with Thomas Cook.

In ruling on the issue, the normal American Cyanamid principles in relation to interim injunctions (which normally require the claimant, in broad terms, to show that there is a serious issue to be tried) were not applicable. This is on the basis that, given the injunction would effectively prevent the strike and therefore be determinative, it is recognised that a different, more stringent, test should be applied. This alternative test is set out in section 221(2) of TULRCA and Mr Justice Lavender, who was ruling on the application, summarised the test with the following question: "is it more likely than not that the defendant [i.e. BALPA] failed to comply with section 229(2D)?".

In what is the first authority on the meaning of section 229(2D), Mr Justice Lavender ruled that the answer to this question was no and accordingly rejected Thomas Cook's application. A copy of the judgment can be found here but, in summary, he held that:

• he did not believe it likely that a court would conclude that more detail was required than BALPA had set out in its ballot paper;
• if more detail was required, this would raise questions around how much more detail was required and risk rendering the provision as vague and/or unworkable;
• planning industrial action was a dynamic and reactive process and the words "expected" in section 229(2D) should be read in that context. For example, it may be the case that the union expected a one day strike to be sufficient to resolve the dispute, although still wanted authority for further strikes if necessary;
• the section does not require the trade union's best guess as to how the trade dispute will end (as opposed to its proposals for the form of industrial action it seeks authority to take if the dispute continues); and
• he believed that the members would, in reading the ballot paper, have understood what they were voting for and, if they believed the wording was too wide in scope, they obviously had the option of voting "no".

Based on the above, Thomas Cook was ordered to pay BALPA's legal costs in full and were also refused leave to appeal, on the basis that Mr Justice Lavender believed the position to be sufficiently clear.