Gate Gourmet London Ltd. v Transport and General Workers Union & Ors

This is my decision on an emergency application made to me yesterday (Saturday 20 August 2005) for an interlocutory injunction made without notice, save that the 1^st proposed defendant, the Transport and General Workers Union (“the T & G”) received sufficient notice on Friday evening to enable them to instruct Mr Brown of counsel who appeared on their behalf, and who also presented submissions on behalf of the other defendants, both named and unknown, although he was only formally instructed by the T & G.

Time is of the essence. Given the history that I have set out below, it was necessary for the parties to receive my decision at the latest during the course of this morning (Sunday 21 August 2005). Submissions concluded shortly before 2 pm yesterday, and I delayed giving both my decision and my reasons until 10.00 am today. It is wholly understandable that either, or both, of the parties may seek to appeal my decision to the Court of Appeal, and in order to facilitate a timely hearing, if such is possible, it is necessary for this judgment to be available by 4 pm in its final form on Monday 22 August 2005. Therefore, force of circumstances has meant that I have not had the time to research and prepare this judgment in the usual way, and its brevity and any concomitant lack of thoroughgoing analysis have been the inevitable consequence.

The facts as described below are taken from the statement of Mrs Clark who is the Regional Director of Quality Assurance for the claimant. I consider that given the urgency of the situation, for the purposes of section 221 (1) Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”), all such steps as are reasonable have been taken to bring this application to the attention of those concerned. In the case of the named and unnamed defendants (save, of course, for the T & G) that means nothing has been done. Given the pressure of time, together with the deteriorating situation (as described hereafter) it would have been unreasonable in my view for the claimants to have attempted to alert the 37 named defendants before making this application.

The injunction sought is against the T & G, 37 named defendants and persons unknown. It arises out of the current dispute that has arisen at the Heathrow South premises (the “GGHS site”) of Gate Gourmet, who are a company that supply in-flight catering to airlines. The T & G is the recognised union for the majority of non-management employees at Gate Gourmet. The company has been experiencing a declining financial position for some time, and since the end of last year it has been in consultation with the union. The management identified the need as they perceived it for changes to be made and it was agreed with the T & G that joint action teams would be established to address the problems.

The detail of the discussions that occurred is not relevant to the issues raised on this application. Suffice it to say, the company and the union reached agreement on a package of staff reductions and working practice changes on 22 June 2005 which was then put to a ballot of the union membership on 1 July 2005. Notwithstanding the support of the union, 98% of the membership voted against the proposals. Thereafter, other proposals were made, and on 5 August 2005 the union agreed to Gate Gourmet’s request that both sides enter into mediation.

The mediation talks were due to commence on 12 August 2005, but before they started employees on the early shift on 10 August 2005 took un-balloted strike action by stopping work and holding a sit-in at the canteen, apparently in response to the claimant hiring 130 seasonal workers to cover the busy summer period, which, according to Mrs Clark, is customary. Events escalated, leading to the dismissal of approximately 622 employees. One of the results of the industrial action was that on 10 August the claimant was unable to provide a service for British Airways, causing Gate Gourmet to incur substantial penalties under its contract with British Airways.

As a part of the actions of dismissed employees in particular, there have been pickets present at these particular premises. Mrs Clark states that following the breakdown of negotiations with ACAS on 16 August 2005 (which had commenced on 12 August 2005) incidents of threats, harassment and intimidation directed at current employees at Gate Gourmet have escalated leading the company to make this application.

The pickets, in the main, have occupied two sites, in part as a result of negotiations with the police. First, a small group of pickets (between 6 – 20 people) is positioned at site A on the side of the road opposite the GGHS site; second, a larger group (up to 200 people) is located about 500 metres from the entrance to the premises at site B, on an area of grassed raised ground known as Beacon Hill. (Footnote: ¹) No point has been taken on this application as regards the lawfulness of the pickets’ presence at either location, although it has been observed that site B apparently has been designated as a “permitted” site for lawful industrial action by the BAA plc who owns the land at both relevant locations. Mrs Clark suggests that permission has not been granted to the pickets to occupy site A. I should add that a further picket of about 12 people is situated near two bus stops at the junction of Southern Perimeter Road and Scylla Road.

Mrs Clark has stated that a particular focus of the pickets’ attention, perhaps unsurprisingly given their key role, has been the drivers and loaders who drive the trucks and take the merchandise to the planes at the airport. Some of the drivers are employed by the claimant although others are employed by an associated company, Versa Logistics Limited. Mrs Clark describes the current situation as follows:

“Unfortunately, the dispute, in picketing terms has escalated in the last few days as the pickets have gone way beyond peaceful protest at the designated area and this is now having a very serious effect on our remaining workforce, whom we feel we now have to take action to protect.

It has now become clear in the last couple of days that the increasing cumulative effect of the intimidatory actions of the pickets (is) causing employees, particularly Transport Employees who have to drive past the pickets in carrying out their duties, to feel so threatened that they are now openly fearful of coming into work at all. In increasing numbers they have been staying away, many of them signing off sick.”

It is suggested that sickness absence levels are now reaching a critical point and that the transport section has been particularly badly affected. Apparently ten employees resigned during the course of last week, stating that intimidation was the reason for resigning, and currently 63 transport employees are on short-term sick leave. A further 23 are also absent who have failed to supply any reason for their non-attendance. The overall number of staff working in the claimant’s transport section is about 250, and absenteeism running at the levels just described is having a serious impact on the company’s ability to function, particularly given that tomorrow Gate Gourmet are seeking to provide a fuller service (at level D), with a full service resuming on Monday 29 August 2005.

The detail of the relevant incidents has been supplied by way of report sheets. Those sheets constitute the material on which I am invited to grant this injunction against the union and the named and unnamed defendants. I have analysed those sheets, and the summary of the evidence against the named defendants (excluding the T & G) is set out in the table below:

As regards untoward behaviour at site B generally, the incident sheets reveal the following overall picture. There is a substantial amount of shouting and chanting from the pickets gathered at that location which may well come within the parameters of lawful and peaceful assembly. However, individuals at that site, on the evidence, sometimes act unlawfully. Traffic is interrupted by pickets standing in the road taking photographs and challenging employees; on occasion the shouts and screams include threats and abuse directed at employees; the path to and from work for employees has sometimes been deliberately blocked by pickets who thereafter abuse or threaten the employees and take photographs of them; at least one truck has been hit by pickets; water has been thrown through the open window of a truck by pickets who left Beacon Hill; and the stop button of a truck has been pressed by pickets who came from site B and the driver was simultaneously threatened.

The union has had an apparently strong and regular presence at this picket which it officially supports. Amongst the union officials who have been participating in the picket or who by their presence have supported it are:

In this application the claimant seeks to limit the picket numbers to 10 and to confine expressly the activities of those present to no more than peaceful attempts at communicating with employees coming and going from the site and including when they attempt to dissuade current employees from working. The claimant by injunction generally wants to prevent any future unlawful behaviour on the part of those picketing. As against the union they seek an order that insofar as it is within its authority, the union should ensure compliance with the various matters I have just described.

Unions can be sued for what have been described as ‘industrial torts’ (see Lumley v Gye (1853) 2 E. & B. 216: interfering with business or contracts by unlawful means, intimidation or conspiracy), and the test for establishing a union’s vicarious liability (the “core economic tort liability” (Footnote: ²)) is set out in section 20 of the Act which provides as follows:

“Liability of trade unions in proceedings in tort

20.— Liability of trade union in certain proceedings in tort.

(1)

Where proceedings in tort are brought against a trade union—

(a)

on the ground that an act—

(i)

induces another person to break a contract or interferes or induces another person to interfere with its performance, or

(ii)

consists in threatening that a contract (whether one to which the union is a party or not) will be broken or its performance interfered with, or that the union will induce another person to break a contract or interfere with its performance, or

(b)

in respect of an agreement or combination by two or more persons to do or to procure the doing of an act which, if it were done without any such agreement or combination, would be actionable in tort on such a ground,

then, for the purpose of determining in those proceedings whether the union is liable in respect of the act in question, that act shall be taken to have been done by the union if, but only if, it is to be taken to have been authorised or endorsed by the trade union in accordance with the following provisions.

(2)

An act shall be taken to have been authorised or endorsed by a trade union if it was done, or was authorised or endorsed—

(a)

by any person empowered by the rules to do, authorise or endorse acts of the kind in question, or

(b)

by the principal executive committee or the president or general secretary, or

(c)

by any other committee of the union or any other official of the union (whether employed by it or not).

(3)

For the purposes of paragraph (c) of subsection (2)—

(a)

any group of persons constituted in accordance with the rules of the union is a committee of the union; and

(b)

an act shall be taken to have been done, authorised or endorsed by an official if it was done, authorised or endorsed by, or by any member of, any group of persons of which he was at the material time a member, the purposes of which included organising or co-ordinating industrial action.

(4)

The provisions of paragraphs (b) and (c) of subsection (2) apply notwithstanding anything in the rules of the union, or in any contract or rule of law, but subject to the provisions of section 21 (repudiation by union of certain acts).”

(5)

Where for the purposes of any proceedings an act is by virtue of this section taken to have been done by a trade union, nothing in this section shall affect the liability of any other person, in those or any other proceedings, in respect of that act.

(6)

In proceedings arising out of an act which is by virtue of this section taken to have been done by a trade union, the power of the court to grant an injunction or interdict includes power to require the union to take such steps as the court considers appropriate for ensuring—

(a)

that there is no, or no further, inducement of persons to take part or to continue to take part in industrial action, and

(b)

that no person engages in any conduct after the granting of the injunction or interdict by virtue of having been induced before it was granted to take part or to continue to take part in industrial action.

The provisions of subsections (2) to (4) above apply in relation to proceedings for failure to comply with any such injunction or interdict as they apply in relation to the original proceedings.

Repudiation by union of certain acts.

As regards the protection provided for acts done in contemplation or furtherance of trade disputes, there are the following provisions contained with the Act:

“PART V

INDUSTRIAL ACTION

Protection of acts in contemplation or furtherance of trade dispute

219.— Protection from certain tort liabilities.

I need not consider for the purposes of this application union liability for action which is either truly official or is deemed as being official. The relevant suggested head is ‘provisional liability’: when a union is potentially liable for any act apparently done in its name. A union may avoid liability under this head by repudiating the act in question provided that its repudiation is in accordance with the detailed procedure provided for in this part of the Act.

The union’s potential liability under this head arises from s 20(2)(c): an act is taken to be authorised or endorsed by the union if it is done, authorised or endorsed by any committee of the union or any official of the union, even if that committee or official is acting without authority or in breach of rule or contrary to law (s. 20(4)). ‘Official’ in this context includes both employed officers and shop stewards or other workplace representatives (s. 20(2)(c)).

There are deeming provisions that potentially extend the union’s potential liability. First, ‘union committee’ for these purposes includes any group of persons constituted in accordance with the union’s (written) rules (s. 20(3)(a)). Second, an act is deemed done, authorised or endorsed by an official if that official is a member of a group of persons whose functions include organising or co-ordinating industrial action and the act in question is done, authorised or endorsed by that group, or by any member of that group (s. 20 (3)(b)). As the editors of Harvey on Industrial Relations and Employment Law (Footnote: ³) point out the union is therefore potentially liable for the acts of an ad hoc strike committee or an inter-union shop stewards’ committee. (Footnote: ⁴) Mr Griffith-Jones QC, on behalf of the claimant, advanced the somewhat extreme argument that the mere presence of a union member at a picket when unlawful activity is taking place, without more, attracts liability for the Union. Given my conclusions as set out hereafter it is unnecessary on this application for the court to decide whether that proposition is sustainable, but given the specific terms of s. 20 I have substantial doubts as to the validity of the argument.

As indicated above, the union’s potential liability may be avoided if the act in question is repudiated in accordance with the statute (s20 (4)). Only the leadership of the union can repudiate the act. There are various provisions regarding the timing of the repudiation and the level of official by whom it must be promulgated which I need not dwell on. However, relevant to this application is the requirement (s. 21(2)) that the union must without delay give written notice of repudiation to the official or committee whose act is being repudiated. It must also ‘do its best’ to give an individual written notice ‘without delay’ to every member of the union whom it has reason to believe is participating or might participate in the relevant industrial action (Balfour Kilpatrick Ltd v Acheson [2003] IRLR 683, EAT). The notice to members must indicate that the act in question has been repudiated and state the date on which it was repudiated and it must include the following warning (s. 21(3)):

“Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial action taken in response to it (or them). If you are dismissed whilst taking unofficial industrial action, you will have no right to complain of unfair dismissal.”

On behalf of the T & G, Mr Brown submitted that the union should not be included in these proceedings. Certainly at one stage during argument, he suggested that because all of those picketing have been dismissed (i.e. there are no current employees of the claimant involved in the picketing), the union is not vicariously liable in tort under section 20 (1) of the Act, and that, accordingly, the Act does not apply. Later in his submissions, in my view correctly, he withdrew this argument that the 1992 Act is not engaged. It seems to me that potential tortious liability on the part of the union arises if the union has authorised or endorsed action which would interfere with contracts in the various ways set out in section 20 (1) (a) and (b) whether or not the industrial action involved current employees of the relevant employer. I do not consider that the terms of the notice set out at s. 21 (3) are inconsistent with the Act applying in circumstances such as these: the union is able to repudiate any appropriate aspect of this industrial action taken by union members, and the reference to possible dismissal in the s. 21 (3) notice is only ever relevant if participants in the repudiated unofficial action face dismissal.

Mr Brown otherwise argues that the evidence insufficiently establishes an arguable case against either the union or the named employees (alternatively, the majority of the latter). He submits that any order against unnamed defendants would be hard to enforce and he reminds the court that Convention rights are engaged. The incorporation of the European Convention on Human Rights into UK law by the Human Rights Act 1998 (the “HRA”) arguably has created a “right to picket” to the extent that the right to peaceful assembly is guaranteed by Article 11 of the Convention. Moreover, Article 10 contains the right to freedom of expression. By s 6 (1) of the HRA it is unlawful for a public authority to act in a way which is incompatible with a Convention right. I have borne in mind the obligation on the court, when considering granting relief that would infringe such rights, to give due weight to the importance of those rights.

In my judgment, on the evidence at this stage, between them the various officials named above have been present at the pickets on sufficient days to mean there is a clear arguable case that the union over the relevant period has fully appreciated and understood the types of unlawful activity which were being routinely perpetrated, particularly, at, or close to, site B, but also on occasion at, or close to, site A. Not only is that demonstrated by the frequency of the visits and attendance by union officials generally at both sites but also by the activities (as alleged) of Mr Hall. Union officials thus present over a significant length of time would have appreciated that routinely pickets were either shouting threats or abuse from both sites and/or they were leaving the sites (and site B in particular) in order to act in an unlawful manner by preventing employees from going to or from their place of work and by threatening or abusing those employees. On occasion, on the evidence vehicles have been struck or water has been thrown at them.

That material demonstrates in my view that there is a good arguable case that unlawful and tortious acts as set out in s. 20 of the Act (and otherwise) have occurred which have been authorised or endorsed by the union. I consider it arguable – given their probable level of knowledge as to what was occurring – first, that specific officials can be said to have authorised these unlawful and tortious activities and, second, that those officials who attended at the site have, in reality, constituted a group who are organising or co-ordinating industrial action. That action has included the prohibited behaviour I have outlined; the union has not repudiated this unlawful activity, and accordingly in my judgment it is right that this interim injunction should be directed at the Transport and General Workers Union.

I must make it clear that this injunction, as with most interlocutory injunctions without notice, has been decided on the evidence presented by the claimant; as yet, a court has not considered any evidence either from the union or the other defendants. Moreover, Mr Brown, who was instructed at short-notice, has not been able to deploy all of the arguments he would wish to develop in due course.

One issue raised for determination is whether, on the evidence as it currently stands, the unlawful activity is sufficiently linked to the numbers present at sites A or B so as to justify the grant of an injunction as this interlocutory stage as regards the size of the picket at either location. This is an area where both common law and Convention rights are clearly in play: the right to peaceful assembly has a long and important history in our democratic system of government and a court will be slow to deny those who seek it the opportunity, within the law, to express their opposition to some event that concerns their lives. A consequence of limiting the number entitled to attend at either site A or B to 10 (or some other small number), as suggested by the claimant, is that many who have not in any way breached the law will be denied an opportunity to express their point of view and concerns in this public way.

I accept, in a general sense, it can be said that because of the relatively large numbers at site B there is an increased risk that the kind of unlawful activity highlighted by the claimant will recur in the future. However, the evidence currently before me tends to indicate the principal problem is that a largely lawful and peaceful (if somewhat noisy) picket is having its proper activities compromised by repeated incidents that are occurring away from, but nonetheless still close to, and in sight of, the pickets both on Beacon Hill and at the site entrance (although I appreciate it is suggested that some threats have been shouted from both sites). In my view, given the unlawful activities are mainly occurring, in that sense, away from the two picket sites, it would be a premature step to limit by way of mandatory injunction the numbers of pickets at site B at this stage. In the first instance an attempt should be made by way of a more limited injunction to restore lawful picketing and good public order by prohibiting all unlawful behaviour, and including the improper activities that are now routinely occurring away from both of the sites.

I readily accept that if the injunction that I propose to grant today fails to curtail the kind of unlawful behaviour that has spilt over from Beacon Hill in particular but also has occurred at the site entrance, then the court may well on a renewed application have no choice but to limit the number of pickets gathered not only at site A but also at site B.

Therefore, at present I consider that there is a serious question to be tried as regards the kinds of unlawful behaviour that have been described; damages would be an inadequate remedy; and the balance of convenience lies firmly in favour of expressly prohibiting any activity which goes beyond peaceful approaches being made to current employees. Further, if it is possible to achieve, I consider that those gathered at site B should be limited strictly to picketing in that area, and (save when coming or going from the site) they should not be permitted to approach, still less to attempt to engage in conversation, employees who are en route to and from their place of work. I appreciate this will to an extent curtail one of the customary lawful activities of picketing (i.e. the opportunity to reason with others and to attempt to dissuade them from working) but the repeated unlawful events that have occurred away from sites A and B has made this – certainly for the time being – a necessary restriction. I have balanced the curtailment of the rights of those gathered at sites A and B against what I perceive to be necessary in a democratic society for the prevention of crime. In this regard I note that in the relevant Code of Practice on Picketing (Footnote: ⁵) it is provided at paragraph 24 that “In no circumstances does a picket have power, under the law, to require other people to stop, or to compel them to listen or to do what he asks them to do”. Additionally, it is set out at paragraph 25 that “The only purposes of picketing declared lawful are peacefully obtaining and communicating information and peacefully persuading a person to work or not to work”. Both the Code and the criminal law prohibit, inter alia, unlawful threats or assaults; harassment (i.e. threatening or unreasonable behaviour causing fear or apprehension to those in the vicinity); and obstruction to the highway (and including pavements) (Footnote: ⁶). Finally, the Code and the criminal law prohibit the use of offensive gestures if they amount to an unlawful threat or harassment (Footnote: ⁷).

In summary, it is what happens when pickets leave the sites that presents the real problem, rather than events on Beacon Hill itself or at the site entrance, although as I have accepted some of the shouts, on the evidence, involve unlawful threats and abuse which should not continue. Whether or not it will be necessary in the immediate future to limit the numbers on Beacon Hill will depend in no small part on whether the unlawful, threatening and intimidatory behaviour continues. It follows that I do not accept Mr Griffith-Jones’ argument that it is established on the evidence that the situation “will get out of control” simply on account of the sheer weight of numbers present, or that workers are being prevented from carrying out their duties because this is “mass picketing” (see paragraphs 48 and 49 of the Code).

However, at or near site A, given the recent level of intimidation, the picket numbers should be limited to 6. The threats to employees summarised above justifies in my view taking this step on an interlocutory basis. Furthermore, I consider that the pickets should not be positioned at or near the bus stops at the junction of Southern Perimeter Road and Scylla Road, given the interference that has occurred with employees going to or leaving the premises.

There is a clear distinction to be drawn in this context between chanting and calling out on the one hand and shouting abuse and threats on the other. I recognise that there is a grey area in between where words such as scab and traitor are arguably legitimately used, depending always on the context. In this case when all that is alleged against named defendant is that some kind of obscene sign or language has been used but no further particulars have been given, I consider that is insufficient to justify those individuals being included as defendants. Similarly, if pickets have simply approached employees in order to speak to them but have not obstructed, threatened or abused them, I have declined to make this order against them. But when threats have been allegedly uttered or employees have been approached and prevented from moving on (or attempts have been made to act in that way), or where the insults have been particularised and are sufficiently serious, I have granted the application for this injunction against the particular proposed defendant. In consequence I refuse the application to include the following named defendants: 1, 2, 4, 5, 6 7, 8, 9, 13, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27 and 35. The (named) defendants to this injunction therefore are: 3 (G. Bhullar), 10 (Mrs D Saran), 11 (Mrs Kundi), 12 (Mrs Jhaj), 18 (Mrs S. Grewal), 19 (Mr Matharu), 21 (Mrs S. Mundy), 22 (Mr Nital Singh), 28 (Mr Dhaliwal), 29 (Mr Kang), 30 (Mr H Sekhon), 31 (Mr Tish Adinal), 32 (Mr Khakhar), 33 (Mr Mayer), 34 (Mr Mullens), 36 (Mr Watson) and 37 (Mr Hall).

As regards persons unknown, I have carefully considered Mr Brown’s submission about the difficulties in “policing” an order against unnamed defendants. However, some unlawful behaviour has been committed on the evidence at, or near to, sites A and B by people who are, as yet, unidentified. I readily appreciate an injunction in such unspecific terms is unusual, but the courts undoubtedly have the power to make an order of this kind if the circumstances make it necessary. The court must particularly ensure the group of unknown persons is sufficiently clear to mean that those who are included and those who are not can be readily identified. I have no doubt that is the position here: persons unknown in this case refers only to people engaging in unlawful picketing and/or otherwise assaulting, threatening, intimidating, harassing, molesting or otherwise abusing the employees of Gate Gourmet or its associated companies. That provides sufficient certainty, and in all the circumstances given the deteriorating situation an order directed at persons unknown is necessary at this stage. It should be posted at the entrance to the claimant’s premises and at least once a day copies should be made available to those gathered at both site A and site B. An appropriate means must be established to ensure that the order is brought to the attention of the pickets on a daily basis, at least to the extent that copies are made available to be read. The claimant should consider whether it should be translated into more than one language.

Given I have done no more than establish a framework which will ensure that the criminal law is not broken, whilst concurrently ensuring that all those who wish to protest peacefully may continue to do so, the undertaking in damages – notwithstanding the company’s apparent parlous financial state – is acceptable. Any damages resulting from the Order that I intend to grant are likely to be modest.

Those are my conclusions on the contentious issue of principle raised on this application. It will be necessary to redraft the proposed Order to accommodate my decisions as outlined above, but that is a matter of drafting and (hopefully) the final form of the Order will be agreed between the parties. I will resolve any disputes as to the final form of words during a hearing later today.

In the event, I grant this interlocutory injunction, but not entirely on the terms sought by the Claimant.