An injunction preventing a strike from taking place has been granted in Westminster Kingsway College v University and College Union (unreported) where the proposed strike was not protected by ballot, after the High Court decided that the ballot authorising strike action 10 months earlier had ceased to have effect.
Under section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992, an act done by a trade union to induce a person to take part in a strike is not protected unless the strike has the support of a ballot. This means a ballot has to have been held and the majority must have voted in favour of industrial action. The period of validity of a ballot is usually four weeks but where there is a series of rolling strikes, the first strike has to take place within four weeks.
The test is whether an ordinary trade union member would say that the original industrial action had come to an end. If so, then the original ballot cannot be relied on for further strike action and cannot protect the union.
Westminster Kingsway College (the College) had offered a pay increase of less than 1% for all its employees for the year 2013 to 2014. The University and College Union (UCU) did not accept that offer and balloted its members, the majority of whom were in favour of strike action. A one day strike took place in December 2013. That was the only strike that took place with regard to that dispute. There were further discussions in January 2014 but negotiations were not reopened.
Pay negotiations for the year 2014 to 2015 subsequently began in March 2014, although UCU noted that the 2013 to 2014 dispute had not been resolved. A further strike was then organised for 14 October 2014. The College, which was effectively acting on behalf of all further education colleges, applied for an interim injunction to prevent the strike going ahead. The College submitted that the proposed strike was not protected by ballot under section 226 because the original strike called pursuant to the ballot had been substantially interrupted.
High Court decision
On the facts of the case, Mr Justice Mitting 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 UCU and the College was granted a restraining injunction. The strike was then called off.
This decision follows the test originally set out in Post Office v Union of Communication Workers  1 WLR 981, which held that the question that the Court had to ask itself was whether the average reasonable trade union member, looking at the matter at or shortly after the interruption in the industrial action, would say to himself "the industrial action has now come to an end", even if he might also say, "the union may want to call us out again if the dispute continues". This is a question of fact and degree and a distinction has to be drawn between cessation of action and suspension for a specific and limited purpose, for example, whilst there is a specific period for settlement negotiations.
This is a helpful decision for employers and is a reminder to trade unions that any strike action has to be supported with an up-to-date ballot. Whilst this will be determined on the facts of each case, there cannot be significant periods of time (referred to as interruptions) where there is no strike action without a fresh ballot being required.