Milford Haven Port Authority v UNITE
The 1992 Trade Union and Labour Relations (Consolidation) Act (TULRCA) states that unions must provide employers with certain information in a pre-determined format before taking industrial action. In Milford Haven Port Authority v UNITE, the Court of Appeal said that unions can provide employers with written notice of continuous and discontinuous industrial action in the same document.
Basic facts
Towards the end of 2009, Unite was in consultation with management at Milford Haven port about proposed changes to the pension scheme. On 17 December, following the consultation, proposals were put to the staff providing three options and most of the staff signed up to one of the options.
In January 2010, the union gave notice of its intention to ballot its members and on 10 February, sent the chief executive of the port two letters giving notice of industrial action in respect of launch crews and pilots of vessels.
Each letter stated that the action would be continuous (including an overtime ban and withdrawal of good will starting on 18 February) and discontinuous (a 48-hour stoppage from 6am on 18 February to 6am on 20 February). The port alleged that, under TULRCA, the union had to provide it with separate notices for the continuous action and the discontinuous action. In other words, it could not specify both in the same letter.
The High Court judge agreed and the union appealed that decision.
Relevant law
Section 234A TULRCA states that a “relevant notice” must, among other things, state “whether industrial action is intended to be continuous or discontinuous”.
The code of practice on industrial action ballots and notice to employers also states that the written notice must specify whether the union intends the action to be continuous or discontinuous. It must also specify the date on which action will start if it is continuous; or all the dates when action will take place if discontinuous.
Court of Appeal decision
The Court of Appeal agreed with UNITE. It said that the notice just had to clearly specify whether the action would be continuous or discontinuous so that the employer could make plans to avoid or minimise the disruption.
It took the view that the “contrary contention would be more likely to generate confusion rather than clarity. More than one notice might cause concerns as to which is to be effective. In addition, it would inevitably permit one notice for more than one action so long as all were either continuous or discontinuous, but not if one was continuous but the other discontinuous”.
However, the Court agreed with the port authority that the union notice was not accurate in that it did not state clearly that the continuous action would not bite until 20 February, when the discontinuous action stopped.
Although this could be inferred from the notice, the Court made clear that “the notice should have set out the intended position accurately. It should not need to be a matter of inference or assumption as to which part of the action will bite at which time; neither is it difficult to achieve. It simply requires the union to pay proper attention to the very important notice that it is giving -- notice of its intended action, which will allow it to avoid what would otherwise be unanswerable liability at the very least for the tort of inducing breach of contract”.