The High Court judgment in BAE Systems (Operations) Limited v Unite the Union [2025] EWHC 3106 should give employers pause for thought before making an application for an injunction to prevent union members from exercising their lawful right to take strike action.
BAE’s application for an injunction was dismissed on 6 November 2025 and, in a detailed judgment handed down on 25 November 2025, the High Court has set out the reasons why BAE’s application failed.
Background
The case concerned a group of approximately 4,500 Unite members, collectively known as Warton Unit Professional Staff. The members work for BAE Air Sector, which designs and manufactures aircraft.
BAE and Unite were in dispute over the 2025 pay award for this group of members. Unite balloted 520 of the members for strike action and action short of strike. The types of action short of strike listed on the ballot paper included a ban on providing buddying up training or coaching to inductees or others (the examples given were new BAE starters, Early Careers and On-Site Sub-Contractors). Of the 505 members who voted, 93.38% voted in favour of strike action and 98.58% voted in favour of action short of strike.
On 30 October 2025, BAE applied to the High Court for an interim injunction to restrain Unite from calling on its members to take industrial action.
BAE’s case
BAE said that, on or about 10 and/or about 14 October, before the ballot closed, Unite officials had called on members employed as quality professionals working in Hangar 358 to cease to provide training to managers. BAE argued that the Unite officials had either known that this would be a breach of contract or turned a blind eye to and/or been recklessly indifferent to the question of whether it would be a breach of contract.
BAE said that Unite had made a ‘prior call’ on its members to take industrial action without the support of a ballot and that this had resulted in the quality professionals refusing to train a manager on 13 October. BAE argued that, if Unite had called ‘industrial action to which the ballot relates’ before the ballot closed then, under section 233 of the Trade Union and Labour Relations (Consolidation) Act 1992, Unite could not rely on the ballot.
BAE relied on a witness statement made by its Managing Director Europe & International. He said that he had received information from another manager that a union official had met with the quality professionals in Hangar 358 on 10 October and that the quality professionals had then informed a manager that the Unite official had told them to stop training managers and had declined to sit with this manager during an engine ground run clearance process on 13 October 2025.
BAE had carried out a search of email exchanges involving quality professionals and it relied on various emails, sent by Unite officials, which it said showed that there had been a call by Unite to stop training managers.
Unite’s case
Unite officials made witness statements explaining that Unite’s standard practice, when management asked a member to do something which the member considered unusual or possibly outside of their contract of employment, was to advise the member to ask for the instruction to be put in writing and then pass the request to Unite for it to take legal advice. Unite’s witnesses pointed to evidence of this practice, contained in minutes of branch meetings and in bulletins issued to members.
The regional official explained that he had sent the relevant job profile to a Unite solicitor and asked for legal advice on 14 October. On 15 October, he had emailed BAE saying that Unite’s initial view was that there was no obligation on the quality professionals to train managers and said, ‘If you obtain that there is such an obligation, can you please confirm the basis for this and we will consider further’. No response had been received from BAE. On 17 October, Unite had submitted a failure to agree regarding BAE’s requests to train managers.
Unite’s evidence also explained that the action short of strike action described on the ballot paper was a reference to training new starters and apprentices, not managers.
Furthermore, Unite obtained a witness statement from one of the team of quality professionals whom BAE alleged had refused to train a manager. He said that, at the meeting on 10 October, the Unite official had said that, if they were being asked to train managers, they should ask their manager for some form of justification in writing and then forward it to the union for advice. He said that there was no instruction from Unite to stop training and that his team had never refused to provide training. He also explained that the full clearance paperwork had not been received until 22 October and so it would not have been possible for the engine ground run clearance process to have taken place on 13 October.
The High Court Decision
The court concluded that the events over the period 10-15 October were part of a fast-moving situation with a rapid flow of exchange of emails and caution must be taken to avoid over-close textual analysis of emails and other contemporary documents.
There was a reasonable basis for Unite officials to have believed that there was no contractual obligation to train managers, subject to legal advice. The court was unpersuaded by BAE’s case that Unite officials had turned a blind eye to and/or were recklessly indifferent to the question of whether or not quality professionals were contractually obliged to train managers.
Unite was likely to establish that it did not tell the quality professionals to refuse to comply with the request to train managers. BAE’s evidence on this issue was ‘distinctly limited’.
BAE’s evidence on the question of whether the quality professionals had refused to train a manager on 13 October was ‘strikingly frail.’ Unite was likely to establish that there was no refusal by the quality professionals to train the manager and so BAE would fail to establish that Unite had induced a breach of contract.
In Govia Thameslink Railway Ltd v The Associated Society of Locomotive Engineers and Firemen, the court had said that the word ‘relate’ was a broad word, and there was no requirement for the industrial action to be exactly the same as the industrial action which was the subject of the ballot, otherwise it would have been for easy for union to side-step section 233.
In the BAE case, the court said that the starting point for an enquiry into whether any prior call was to take industrial action ‘to which the ballot relates’ was the type of action short of strike specified on the ballot paper. Unite was likely to succeed in its argument that industrial action comprising a ban on training managers did not relate to the industrial action specified on the ballot paper. A hypothetical reasonable member would read the ballot paper as relating to the training of new starters, inductees and the like and not to the training of managers.
The court did not accept that this interpretation provided an opportunity for a union to side-step the effect of the prior call provisions. The court said that the observations to that effect in the Govia case had been made in a very different context, namely the union’s argument that the industrial action which was the subject of the ballot had to be exactly co-extensive with the industrial action which was the subject of the prior call.
Conclusion
Although BAE’s challenge was unsuccessful on this occasion, the law on ‘prior call’ continues to present a real risk for unions.
If an employer can establish that a union has called induced a breach of contract without a ballot then, even if the union goes on to carry out a ballot and obtain a lawful mandate, the employer can seek an injunction preventing the union from calling any further industrial action, if the prior call was to take ‘industrial action to which the ballot relates’. The legislation does not make clear what is meant by ‘industrial action to which the ballot relates’ and, in the Govia case, the court interpreted this phrase as having a wide meaning.
In this case the court considered that the starting point for an enquiry into whether any prior call was to take ‘industrial action to which the ballot relates’ was the ballot paper, and that a ban on training managers did not relate to industrial action in the form of a ban on training new starters. This will potentially be helpful for unions, in some circumstances. However, it remains important that, when organising industrial action, unions continue to be mindful of the potentially draconian consequences of a proven allegation of ‘prior call’.
Thompsons Trade Union Law Group