The decision in Westminster
Kingsway College v University and College Union confirms the
circumstances under which strike ballots may cease to provide effective
protection for Trade Unions under the Trade Union and Labour Relations
(Consolidation) Act 1992.
On 13 October 2014 Andrew
Clarke QC successfully represented Westminster Kingsway College (effectively
on behalf of all FE colleges) in its application to prevent the University and
College Union (“UCU”) from holding a national strike in Further Education
colleges planned for the next day.
UCU called the disputed strike in September 2014 following
pay negotiations for the year 2014-2015. The Union sought to rely on the same ballot
protection it had obtained after the previous year’s pay negotiations when it
held a one day strike in December 2013.
Mr Justice Mitting, sitting in the Queen’s Bench
Division of the High Court, held that “what was authorized by ballot can cease to
be authorized if industrial action is effectively discontinued”. Applying Post
Office v Union of Communication Workers  IRLR 143, (per Lord Donaldson MR and Butler-Sloss
LJ, with whom Farquharson LJ agreed) the test was whether an ordinary trade
union member would say that the original industrial action had come to an end:
if so, then the original ballot could not be relied on for further strike
action and could not protect UCU from tort (and other) liability. That question should be considered at the
time when the new strike action was proposed and having regard to all
intervening events. It was not to be
considered as at the time that the previous strike action ended, as certain
parts of the earlier judgments might have suggested.
On the facts of the case, Mitting J held that the
proposed strike action in October 2014 was not a continuation of the action
from December 2013. There had been a substantial interruption between the two. Accordingly,
he was satisfied that the final trial of the claim would result in judgment against
the Union, and the College was granted a restraining injunction. The strike was
then called off.
Mitting J’s decision confirms that the test set
out in the Post Office case (as further explained by him) remains
good law after nearly twenty five years (and several material changes to the
underlying statutory scheme).