Industrial action - summary judgment refused despite union’s ‘improbable’ defence

Trade unions have certain statutory immunities in respect of organising industrial action. These immunities allow unions to call on their members to break their employment contracts by going on strike in furtherance of a legitimate trade dispute. They must, however, comply with various procedural formalities prescribed by statute in order for the immunities to apply.

Facts of the case

Royal Mail asserted, in addition to other contractual claims, that the Communication Workers Union (CWU) induced some of its employees to breach their contracts in a way that involved the commission of torts (civil wrongs) which did not attract legal immunity. The company pointed to the following sequence of events:

• A dispute arose early in the morning of 2 October 2019 between a manager and two CWU officials over a work practice at the Royal Mail’s Bootle delivery office.
• At the end of the morning break several employees, including one of the officials, did not return to work. They then left when asked by a manager to return to work or leave the premises.
• CWU officials encouraged the strike by communicating with the postal workers through a WhatsApp group, attending pickets at the site and posting supportive messages on Twitter.
• The strike only ended when Royal Mail applied for an injunction on 8 October 2019 on the basis that the CWU had not complied with the required statutory formalities.

Royal Mail made a subsequent application to the High Court (HC) for summary judgment on liability, in response to which the CWU relied on its officials’ evidence. This suggested, the CWU claimed, that it had not endorsed the strike as:

• Although a CWU official administered the WhatsApp group, the union had not created it and it was merely a forum for postal workers to exchange ideas and information.
• A CWU official only attended pickets in a personal capacity.

• In any event, the postal workers had been lawfully instructed by a manager to leave work and that order had not been rescinded.

The CWU submitted that it was “manifestly inappropriate to determine the issue summarily where there were fundamental disputes of fact”.

High Court’s decision

The HC refused Royal Mail’s application, notwithstanding finding the CWU’s defence to be “improbable”. That alone did not mean that the CWU had “no real prospect of success”, as required for the HC to issue a summary judgment. The HC also doubted that such a judgment on the union’s liability at this stage would save time at the final hearing on Royal Mail’s remaining claims and the issue of remedy for the alleged inducement.

Implications for employers

Strike injunctions can potentially be secured swiftly and are often determinative of the case despite being an interim remedy. This is probably because claims in tort against unions are capped at £250,000 and, having stopped ongoing disruption, most employers then want to focus on resolving the underlying industrial dispute.

Unusually, the recognition agreement between Royal Mail and the CWU contains legally binding dispute resolution provisions. The parties also have a history of animosity which surfaced last Christmas. It is interesting that, in the current proceedings, Royal Mail has chosen to bring not only claims in tort but also contractual claims that the dispute resolution provisions were not followed. This might reflect the fact that no cap applies to contractual claims. Nonetheless, this ongoing case serves as a useful reminder that employers should take normal litigation considerations into account if they chose to take the unusual course of pursuing damages for allegedly unlawful strike action.

Royal Mail Group Ltd v Communication Workers Union – judgment available here.