UCLH NHS Trust v UNISON

The Court of Appeal has upheld an injunction against UNISON over proposed strike action at University College London Hospital NHS Trust. The proposed strike action was over the Trust's failure to secure guarantees as to future terms and conditions of employment following a successful Private Finance Initiative bid.

The decision will have far reaching consequences, not only for industrial action in PFI situations, but also whenever a dispute is in any way associated with a change of employer.

The disputes

The Trust was in negotiations with a consortium under the Private Finance Initiative whereby private companies were to build and then run a new hospital for the Trust.

UNISON members, originally employed by the Trust, were to be transferred, under TUPE, so as to be employed by members of the consortium. UNISON, as a matter of long standing policy, is opposed to the principle of PFI.

On behalf of its members, UNISON sought an assurance from the Trust that a 30 year guarantee would be written into the contract between it and the consortium which would protect: (i) the terms and conditions of staff employed by the Trust who would transfer to the consortium; (ii) the terms and conditions of staff who had not previously been employed by the Trust, but who were subsequently to be employed by members of the consortium; and (iii) the existing collective bargaining arrangements.

There was also a separate strand of protection sought whereby employees employed by members of the consortium would have equally favourably conditions to those of Trust staff in the future.

The Trust failed to give the requested assurances and UNISON balloted its members for strike action. An overwhelming majority of members voted in favour, but the Trust applied to the High Court for an injunction to restrain the strike action.

The law

A Union is immune from action against it where it calls for industrial action "in contemplation or furtherance of a trade dispute", provided that the balloting and notification requirements are complied with. A "trade dispute" is defined as "a dispute between workers and their employer which relates wholly or mainly to one or more of the following ...". The definition then sets out seven issues capable of forming the basis of a "trade dispute". The relevant categories in this case were "(a) terms and condition of employment, or the physical conditions in which any workers are required to work;" and "(g) machinery for negotiation or consultation, and other procedures relating to [any of the above matters], including the recognition by employers of employers' associations of the right of a trade union to represent workers in such negotiations or consultation or in the carrying out of such procedures."

Throughout, UNISON argued that the industrial act should be protected because it would have been taken "in contemplation or furtherance" of a "trade dispute". That trade dispute related both to terms and conditions of employment and machinery for negotiation or consultation in terms of the assurance sought from the Trust.

The High Court

The High Court Judge granted an injunction against UNISON on three grounds. First, he found that it was likely that the dispute in fact related mainly to the political objectives of UNISON's opposition to PFI as a matter of policy, rather than one of the issues capable of founding a trade dispute.

Secondly, he found that the dispute was not about terms and conditions of employment at all, but was in reality about the term and conditions of the contract to be entered into between the Trust and the consortium. Thirdly, he found that the dispute was not protected because it involved workers who were not yet employed by the Trust, but who were to be employed, by members of the consortium, at some future date.

The Court of Appeal

The Court of Appeal disagreed with the High Court Judge on the first issue. It found that a union could have a policy of opposing PFI, and, concurrently, also have a more limited objective - that is alleviating the adverse consequences which might flow from that more general policy.

On that basis, the Court of Appeal found that the proposed industrial action was potentially capable of being in contemplation or furtherance of a trade dispute rather than in consequence of some overall political objective which would itself be insufficient to qualify as a trade dispute.

However, the Court of Appeal upheld the grant of the injunction on two grounds. First, it was not possible for the statutory protection to cover terms and conditions of employment of employees of members of the consortium who would never have been employed by the Trust against which the industrial action was to be taken (i.e. subsequently employed employees). This alone was enough to sink UNISON's defence.

Secondly, the Court of Appeal found that the dispute related to existing employees' subsequent, and different, employment with the consortium - itself an as yet an unidentified entity. UNISON tried to argue that, although the parties to a trade dispute had to be workers and their employer, the subject matter of the dispute could relate to employment with a different employer.

The Court of Appeal did not find this relevant: the existing employees' dispute related to their subsequent employment with members of the consortium and was not therefore protected. It upheld the grant of the injunction and refused to grant leave to appeal to the House of Lords. UNISON is petitioning for leave to appeal.

The implications

The decision is extremely frustrating. It fails to take into account the objectives of TUPE in terms of the transfer of rights, liabilities and responsibilities for actions. When unions are negotiating in advance of a transfer of members to a new employer, it is sensible and appropriate to try to protect members' terms and conditions in the future by way of assurances from the current employer. However, it now seems that industrial action taken as a consequence of a current employer's refusal to give assurances will not be protected.