As part of a pay dispute, the union had arranged for a strike ballot to take place, under s226A of TULRECA, among workers at electricity substations serving the London Underground. That section required the union to categorise the employees involved and that must be "as accurate as is reasonably practicable in the light of the information in the possession of the union at the time". The union had classed them as "engineers/technicians". The company, however, categorised the workers differently and said they could not identify any technicians. In the High Court the judge had concluded that  the union's classification was not sufficient and that the "requirement to give a more focussed categorisation in the context of a small employment place with shop stewards or local representatives intimately connected with working practices was a requirement that was not onerous or unreasonable". He granted an injunction preventing further strike ballots and the dispute subsequently settled.

In this application, although academic, counsel for the union sought to raise what he considered important points under Article 11 of the ECHR and on the statutory wording, arguing the decision of Metrobus v Unite had failed to take account of some Strasbourg cases and was wrongly decided. Rix LJ, following K v Lambeth LBC, rejects the submission that binding domestic precedent can be relaxed in these circumstances to allow an appeal on either the Article 11 issues or statutory wording points as there had been no

"domestic ruling which has established a clear and authoritative interpretation of Convention rights which is necessarily and clearly inconsistent with the binding domestic precedent".

He also rejects a submission that the judge had issued an injunction prematurely as it was clearly within his power to do so.

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Case No: A2/2009/2447

Neutral Citation Number: [2010] EWCA Civ 173
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE BLAKE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 26th January 2010

Before:

LORD JUSTICE RIX
and
SIR DAVID KEENE

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Between:

**EDF Energy (Appellant)

• and -**

National Union of Rail Maritime and Transport Workers (Respondent)

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(DAR Transcript of WordWave International Limited
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Mr John Hendy QC and Mr Marcus Pilgerstorfer (instructed by Thompson Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment
(As Approved by the Court)
Crown Copyright©

Lord Justice Rix:

1. This is a renewed application for permission to appeal brought on behalf of the National Union of Rail and Maritime Transport Workers, to which I shall refer as "the RMT", in their industrial dispute with EDF Energy Powerlink Limited, to whom I will refer as "EDF".

1. EDF employ a relatively small number of employees at three electricity stations, one of which is at Tufnell Park where the greatest number of such employees are employed, which provide power to the London Underground.  The case therefore concerns a relatively small number of workers whose employment carries immense implications for the working of the London Underground.

1. In the light of a pay dispute concerning the employees at the stations, who are members of the RMT, the RMT arranged for a strike ballot to take place and, pursuant to its obligations under section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992, otherwise known affectionately as "TULRECA", a notice of ballot was given to EDF.  Pursuant to section 226A subsections 2, 2A, 2B and 2C and following, amongst the matters that that notice has to attain for the assistance of the employer is "a list of the categories of employee to which the employees concerned belong", that is to say the employees concerned in the ballot.  Numbers of the employees and the numbers which relate to each of the categories and the numbers who work at each workplace in the list are also to be given.  However, the dispute which has arisen in these proceedings is about the requirement of "a list of the categories of the employee".

1. The ballot notice given by the RMT to EDF defined the categories as "engineers/technicians".  That was how the employees in question were categorised in the records of the union.  However, the employer, EDF, categorised its workers at the sites involved, including Tufnell Park, in other terms, namely as "fitters, jointers, test room inspectors, day testers, shift testers or OLBI fitters".  EDF accepted that they could identify the engineers in question but they said they were unable to identify the technicians.

1. The RMT had 52 members involved at Tufnell Park out of a total of (speaking from memory) some 155 employees of EDF at that station.

1. The statute said at section 226A(2D) that the information required "must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time", but the statute also provides that account shall be taken of the code of practice issued for the purposes of the statute, and that code provided further guidance, which made it clear that the way in which the information was held by a trade union was not definitive, although it was of course relevant.  Thus paragraph 15 of the code said inter alia that:

"There are many ways to categorise a group of employees.  When deciding which categories it should list in the notice, the union should consider choosing a categorisation which relates to the nature of the employees' work.  For example, the appropriate categorisation might be based on the occupation, grade or pay grade of the employees concerned.  The decision might also be informed by the categorisations of the employees typically used by the employer in his dealings with the union.  The availability of data to the union is also a legitimate factor in determining the union's choices"

1. Blake J, in the judgment below, held on a consideration of all the material and the evidence before him that the categorisation in terms simply of "engineers/technicians" was not reasonably sufficient.  It was conceded on behalf of the union, as recorded in the judgment, that it was perfectly possible for the union to obtain, at any rate by means of contacting local shop stewards, the particular functions in which each employee was engaged, and indeed in the previous year in 2008, in connection with a different and perhaps more focussed dispute about pay grades within the employees at the sites, a categorisation in terms of shift tester staff had been given that illustrated the practicability of a more defined notice from the point of view of the union.

1. The judge carefully considered all the material before him and also was able to obtain guidance from two decisions in this court, albeit not on the final wording, as amended, of the Act, in the London Underground case [2001] IRLR 228 and Westminster City Council v Unison [2001] IRLR 524.  In his judgment he concluded that the requirement to give a more focussed categorisation in the context of a small employment place with shop stewards or local representatives intimately connected with working practices was a requirement that was not onerous or unreasonable and he held that the categorisation was defective and on that ground held that the ballot notice was defective and therefore injuncted any further proceeding towards a strike ballot.

1. On the basis of that decision it is clear from Mr Hendy QC's helpful skeleton argument that the union was concerned to bring before the court important issues arising under article 11 of the European Convention on Human Rights,  but also issues related to this particular case under the wording of the statute. It is plain, however, that the Convention issues are matters which particularly concern RMT, although it is also said that the judgment below has caused difficulties on the question of the use of categorisations for ballot notices in other cases, of which Mr Hendy mentions, by illustration, some involving much larger numbers of trade union members.

1. However, under the provisions of the statute, it is now too late in any event for this ballot notice, whether legally effective or defective, to go forward as the basis of a vote for subsequent strike action were any vote to be for a strike.  Thus it is accepted by Mr Hendy that the issue in this case has become academic for the purposes of this dispute, and all the more so because there is no longer even a possibility of a strike in question even under some new ballot proposal, because the industrial dispute has now happily been settled.

1. In these circumstances it seems to me that it would be inappropriate to give permission to appeal in this case.  For the same reason it would be inappropriate, for the sake of other and bigger disputes in other cases, to go behind my view that on the particular facts of this case there is no reasonable prospect of success on appeal in the domestic context.  It seems to me that the judge was entitled to come to the view that he did on the particular facts of this case and that is irrespective of some debate about whether the statutory purpose of giving a ballot notice is only to allow the employer to influence the ballot by contacting those employees concerned in it or whether it also has the purpose of enabling the employer to make contingency plans against the possibility of strike action being called.  It was clear on the previous wording of the statute, but the relevant subsection has since been excised, that the statutory purpose of the ballot notice was both those purposes.  It is also clear that the ultimate notice of strike action, of which the employer need only be given a minimum of seven days' notice, also has to include a reference to categories of employees involved in that strike action.  The judge accepted that they may turn out to be different categories from the categories mentioned in the ballot notice, but nevertheless it seems to me, as it did to the judge, reasonably clear that the purpose in both cases is to enable an employer to make preparations.  If he was able to make his preparations only seven days ahead of a strike call when the union was in a position from the very beginning of knowing what, at any rate if its members supported it, it wished to achieve by strike action, there would be an unnecessary imbalance between employer and union, whereas it seems to me the purpose of the statute is to achieve balance between the two parties.

1. Therefore I would not give permission to appeal simply looking at the matter as a dispute on the statutory wording.

1. So far as the much bigger issues arising under article 11 are concerned, Mr Hendy helpfully accepts, and this was the point of Sir Richard Buxton dealing with the matter on paper, that RMT is bound as things stand at the moment by the decision of this court in Metrobus Ltd v UNITE [2009] EWCA Civ 829: [2009] IRLR 85A.  In his helpful and detailed skeleton argument Mr Hendy submits that the Metrobus decision, very recent decision as it is, has not had the opportunity of fully taking into account a small number of further Strasbourg decisions.  However it seems to me that none of those decisions in any way shows that Metrobus is clearly to be set aside on the basis of Strasbourg jurisprudence and I have to have regard, as Mr Hendy accepts, not only to the decision of this court in Metrobus on what the requirements of section 226A demand, but also to the House of Lords' decision in K v Lambeth LBC [2006] 2 AC 465, which makes it clear (see, in particular, paragraph 43 in the speech of Lord Bingham of Cornhill) that precedent must be given effect even in the context of ECHR disputes.  Indeed, even the slightly relaxed application of precedent advocated in that case by interveners such as Justice and Liberty discussed in paragraph 41 of Lord Bingham's speech indicates that the necessary conditions for such relaxation would not apply in this case, such as that there has been a Strasbourg ruling since the domestic ruling which has established a clear and authoritative interpretation of Convention rights which is necessarily and clearly inconsistent with the binding domestic precedent.  Mr Hendy is not in a position to say that even that relaxed attitude to precedent is applicable here, but he baldly submits that Metrobus was wrongly decided.

1. That is not a submission which in this court we can accede to, but Mr Hendy nevertheless submits that he can look forward hopefully to obtaining permission in due course to go to the Supreme Court.

1. That is not a basis upon which this court could, in the absence of any other issue fit to go to the Court of Appeal, give permission to appeal in the context of an academic appeal.  The opportunity of a leapfrog was considered by the judge below and rejected and therefore I would not give permission on account of any article 11 question.

1. Finally and briefly, Mr Hendy addressed a submission, given some emphasis in his written submissions, that the judge had acted too early in injuncting reliance upon the defective ballot notice, on the basis that such a defective notice was not a tortious act in itself although, if acted upon, for the purposes of calling a strike, it would be, but he said that there were many shifts and moves which had to take place before that position was reached.  The judge was not attracted by that submission, nor was Sir Richard Buxton on paper and nor am I.  A defective notice has ex hypothesi already been given.  Any further action based upon that would necessarily be unlawful in those circumstances.  It was clearly within the power of the court to consider, in its discretion, whether upon that basis it should prevent further reliance upon that notice. It would only be storing up trouble for the future to allow a ballot to go ahead upon the basis of a legally defective notice.  It would be trouble for the employer and for the union and for the union members involved in the ballot alike, and in my judgment there would have been no reasonable prospect of this court saying on appeal that the judge was wrong, in the exercise of what ultimately was his discretion, to grant the injunction on the basis of an illegal notice.

1. Therefore, for these reasons this application is refused.

**Sir David Keene:
**18. I agree that this application should be dismissed, though on a somewhat narrower basis than my Lord.  Mr Hendy has raised some interesting points of statutory construction which one day may need resolving.  I make it clear that for my part I express no view on them, save that I am not attracted by the prematurity argument to which my Lord has just referred.  But the courts are not in the business of giving theoretical legal guidance when there is no dispute which needs to be adjudicated upon.  Nor is there any reason I can see why EDF, the proposed respondent to any appeal, should be put to the trouble and expense of resisting an appeal when it has by now settled the industrial dispute that lay behind these proceedings.  I too, therefore, would dismiss this application but solely because it has become in my view academic.

Order: Application refused