P v National Association of Schoolmasters/ Union of Women Teachers [2001] EWCA Civ 652

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE MORISON
[2001] EWCA Civ 652Case No Case No: A2/2001/0881Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Wednesday 9th May 2001
Between
PAppellant ClaimantNational Association of Schoolmasters/ Union of Women TeachersRespondents Defendants
Before
Lord Justice WallerLady Justice HaleSir Philip OttonMr Eldred Tabachnik QC, Mr Nigel Giffin (instructed by Ashok Patel & Co for the Claimant)Mr David Bean QC, Mr Thomas Linden (instructed by Messrs Russell Jones & Walker for the Defendants)Mr William Hoskins (Amicus)Date 9 May 2001

LORD JUSTICE WALLER:

This

[1]is an appeal from a decision of Morison J given on 9 th April 2001. The issue before him, and before us, relates to the legality of the actions of the Defendant Trade Union in, as it is alleged, inducing teachers at a school to take action which has led to a pupil not being taught in his normal class surroundings.[2]The case relates to a young person and an order under section 39 of the Children and Young Persons Act 1933 prohibiting the publication of the name of that person, or any details calculated to identify him, was made before the trial and is still in force. The pupil I shall simply refer to as P.[3]The background to this dispute can be shortly stated. That is so because in essence the resolution of the issues that arise on the appeal turns on the construction of certain sections of the Trade Union and Labour Relations (Consolidation) Act 1992 (The Act), and also because many of the facts were not fully explored in the court below and need not be fully explored here.[4]P had problems at the school he attended. He was disruptive. A number of members of staff so asserted. The problems led to the Head Teacher on 6 th June 2000 making a direction permanently excluding P from the school. There is a procedure for appealing such an order to the school governors and their decision by letter dated 30 th June 2000 was as follows:- "Dear Ms P Thank you for coming to last night's meeting. The Governors considered the evidence as presented by both sides regarding the incident in which the alleged threat took place. Because of the conflicting nature of that evidence and the element of perception on both sides they felt unable to confirm the extreme and final sanction of permanent exclusion. However, they remain extremely concerned at [P]'s attitude towards his teachers. The running of a school relies on discipline and for any student to be querying instructions given to him is completely unacceptable. The Committee insists that [P] must only object to instructions he is given through the proper channels and at the proper time. [P]'s tendency to confront teachers is viewed even more seriously. The evidence on this was completely clear and the Committee want you to know that such behaviour cannot be tolerated. The Committee wishes [P] every success with his GCSE studies. Because of the lateness of the hour at which the meeting ended the Committee was unable to decide on a suitable date when he should return to school. They will therefore ask the Headteacher to arrange that [P] returns to lessons no later than Monday 10th July 2000. Mr Cullinane will contact you, as soon as possible, to make arrangements for the smooth re-integration of [P] and to put into place some form of support plan."[5]The new term started on 4 th September 2000. P came back to the school and was taught in class. There were further problems, one such leading to the head teacher making a two-day exclusion order in the middle of October 2000. The staff at the school who taught P maintain that they remained anxious about teaching P in class both because of his behaviour towards them, and because of the effect that had on the rest of the class, but did not take industrial action while some attempt was made to find a solution. It would seem that the Head Teacher was anxious to find a compromise which allowed P to continue to be taught in class, but no compromise was reached and it was in those circumstances that the Head Teacher maintained a direction that P should be taught in class. As I have said, no full examination of the facts has taken place and thus no assessment can be made as to the justification for the fears of the teachers, or the reasonableness of the direction by the Head Teacher that P should continue to be taught in class.[6]On 6 th November 2000 the Union informed the Local Education Authority that they intended to ballot the 35 members of the teaching staff at P's school giving the opening ballot day as Tuesday 14 November 2000. An amended ballot paper was sent on 8 November 2000 in the following terms:- "2000 Trade dispute concerning direction of Bonus Pastor School Headteacher, acting under the instructions of the Bonus Pastor Governing Body, made in accordance with the Teachers' Pay and Conditions Document, to teach a certain pupil. "Are you prepared to take part in strike action in furtherance of this dispute?" YES NO ( Indicate your vote by placing an (x) in one box above.) "Are you prepared to take part in industrial action short of strike action in furtherance of this dispute?" YES NO ( Indicate your vote by placing an (x) in one box above.) Please return this ballot paper in the reply-paid envelope provided to the NASUWT, Hillscourt, Rose Hill, Rednal, Birmingham B45 8RS, to reach there by no later than first post on Wednesday, 22nd November 2000."[7]In fact five ballot papers were sent to persons who were not members of the staff, and two members of staff to whom ballot papers should have been sent did not receive the papers. Nothing turns on the fact that some persons were sent ballot papers who should not have been, but the failure to send ballot papers to the two members of staff who should have received them, raises a point to which I will return.[8]It seems that the reason for these mistakes was that teachers tended not to notify the Union of their change in jobs from one school to another and therefore the five received ballot papers although they had moved schools, and the two who should have received papers did not, because they had fairly recently arrived at P's school from other schools.[9]The fact that the two had not been sent ballots when they should have been, was discovered before the completion of the balloting process, but after the ballot papers had been sent out.[10]On 23 rd November the Union gave notice of the result. The votes were 25 to 1 in favour of strike action and 26 to nil in favour of action short of strike action. The notice continued:- "The NASUWT intends to induce to take part in the action 32 members of the teaching staff in Bonus Pastor School. The industrial action is intended to be continuous and will consist of action short of strike action in that NASUWT members will not accept the unreasonable direction of the headteacher acting under the instructions of the Governing Body, made in accordance with the Teachers' Pay and Conditions Document, to teach a certain pupil. The continuous action will commence on Friday 1st December 2000."[11]The 32 excludes the five to whom papers were sent by mistake, but includes the two who had not been sent ballot papers.[12]Since the 1 st December 2000 the Claimant has not been taught by his normal teachers in the classroom, save in the case of Maths and Drama (because his teachers for those subjects are not members of the union). Instead, he follows his usual timetable (in the sense that he has a Geography lesson when his contemporaries have one), but sits on his own with a supply teacher and gets on with work which has been set by his usual teacher.[13]These proceedings were not commenced immediately. On 16 th January 2001 an application was made for judicial review of the decision of the Head Teacher not to insist on P being taught in class. Permission was refused on 1 st March 2001 by Richards J. He also refused permission to appeal having already decided a somewhat similar application in a different case involving a different student which was already going to the Court of Appeal. There are indeed two such cases coming to the Court of Appeal later this month.[14]The refusal prompted those acting for P to contemplate these proceedings to seek an order against the Union relying principally on Section 235A of the Act. That Section (so far as material) provides as follows:- "235A Industrial action affecting supply of goods or services to an individual(1) Where an individual claims that - (a) any trade union or other person has done, or is likely to do, an unlawful act to induce any person to take part, or to continue to take part, in industrial action, and (b) an effect, or a likely effect, of the industrial action is or will be to - (i) prevent or delay the supply of goods or services, or (ii) reduce the quality of goods or services supplied, to the individual making the claim, he may apply to the High Court or the Court of Session for an order under this section.(2) For the purposes of this section an act to induce any person to take part, or to continue to take part, in industrial action is unlawful - (a) if it is actionable in tort by any one or more persons, or (b) (where it is or would be the act of a trade union) if it could form the basis of an application by a member under section 62.(3) In determining whether an individual may make an application under this section it is immaterial whether or not the individual is entitled to be supplied with the goods or services in question.(4) Where on an application under this section the court is satisfied that the claim is well-founded, it shall make such order as it considers appropriate for requiring the person by whom the act of inducement has been, or is likely to be, done to take steps for ensuring - (a) that no, or no further, act is done by him to induce any persons to take part or to continue to take part in the industrial action, and (b) that no person engages in conduct after the making of the order by virtue of having been induced by him before the making of the order to take part or continue to take part in the industrial action."[15]The object of the court proceedings was to try and get an order which would assist in P being taken back into class. The anxiety of P and his mother was and is that P will be disadvantaged in relation to the exams that P will take in June if that does not happen. Again no inquiry on the facts was undertaken in the court below as to the extent to which P is in fact disadvantaged by being taught in the way he at present is. The Union assert that he is in fact doing better as things are; P and his mother assert, as I have said, that he is missing out.[16]A letter before action was sent on 9 th March 2001; a response was received by letter dated 15 th March and these proceedings were issued on 19 th March. On 26 th March Bell J gave directions for trial, and the trial came on before Morison J on 4 th April 2001. As already indicated he gave judgment on 9 th April.[17]He refused permission to appeal on grounds unrelated to the arguability of the points of law and for the practical reason of enabling the Court of Appeal to consider expedition.[18]May LJ gave permission to appeal on one ground only, and the hearing was expedited so as to come on 2 nd May.[19]Those acting for P argued three points before Morison J: the first on the construction of Section 244 of the Act (the Trade Dispute Issue) on which permission to appeal was granted; the second on the effectiveness of the balloting procedure (the ballot issue); the third a Human Rights Act point under which it was asserted that the Union was acting unlawfully in a way unprotected by the Act (the Human Rights issue).[20]One question for us was whether permission to appeal the second and third points should be granted. We granted permission to appeal the ballot point. As regards the Human Rights Act point, once it was pointed out to those representing P that even if there was merit in the point, a factual inquiry would be necessary which could not conceivably take place prior to June when P was to take his exams, Mr Tabachnik QC took instructions and sensibly accepted that there was no point in pursuing that point.[21]The two points arise in the following way as were put in Mr Tabachnik's skeleton argument from paragraph 18 to paragraph 21:- "18. The Claimant relies principally upon TULRCA s 235A, which creates a statutory cause of action provided (so far as relevant) that two conditions are satisfied:(i) First, that the effect of the industrial action is to prevent the supply of teaching services to the Claimant, or to reduce the quality of those services;(ii) Secondly, that the NASUWT's inducement of the action is actionable in tort by any one or more persons. 19. Before Morison J, it was conceded on behalf of the NASUWT that the first condition was satisfied here. It was also accepted that, if the statutory cause of action is made out, s 235A(4) makes it mandatory for the Court to make an order. Any question of discretion arises only in relation to the form of the order. 20. The critical question in this case is therefore whether the NASUWT's action is actionable in tort by any person, or whether it enjoys the protection of the well-known immunity in TULRCA s 219, because done in contemplation or furtherance of a trade dispute. There is no dispute that the action is prima facie tortious, because it involves the union in inducing at least some of its members to breach their contracts of employment. 21. The questions which arise are therefore as follows. First, is there a subsisting trade dispute within the meaning of TULRCA s 244 (the trade dispute issue)? Secondly, if so, has the NASUWT correctly followed the statutory procedures for balloting and giving notice of the industrial action (the ballot issue)?" Trade Dispute Point[22]Section 244(1) provides:- "244 Meaning of 'trade dispute' in Part V (1) In this Part a 'trade dispute' means a dispute between workers and their employer which relates wholly or mainly to one or more of the following - (a) terms and conditions of employment, or the physical conditions in which any workers are required to work; (b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers; (c) allocation of work or the duties of employment between workers or groups of workers; (d) matters of discipline; (e) a worker's membership or non-membership of a trade union; (f) facilities for officials of trade unions; and (g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures."[23]Reliance has been placed on subsections (a) and (c), and some passing reference was made to subsection (b). Neither side relied on (b) and I will make no further mention of it.[24]The competing arguments can, I hope not unfairly, be put in this way. Mr Tabachnik for P first drew our attention to the wording of the section unfortunately misquoted in Morison J's judgment. The wording, as it now is, requires that the dispute relates "wholly or mainly to one or other of" the matters identified by the subsection, not simply that it be "connected with". That change of wording has narrowed the scope of trade dispute (see Lord Donaldson MR in Mercury Communications v Scott Garner [1984] ICR 74 at 101E). There is no dispute about that. He also submitted that one cannot turn a dispute into a trade dispute simply by saying "alter the terms and conditions to allow so and so" (see Universe Tankships of Monrovia v ITWF [1983] 1 AC 366 Lord Cross at 392 ) .[25]He submitted that the dispute in this case had not on the facts matured into a Trade Dispute. He submitted that action was simply being taken by the Union to compel the Head Teacher to remove P from the class. That he submitted was coercive action by the Union simply interfering in the way the school was run, and nothing to do with terms and conditions of employment or any other matter identified by subsection (1) of s.244. He submitted that the dispute might have matured into a trade dispute if, prior to balloting, the Teachers and/or the Union had genuinely been asserting that they wanted their terms and conditions altered so as to allow them not to teach in class pupils whom they reasonably believed to be disruptive. Only at that stage could the dispute be said to relate to "wholly or mainly…. to terms and conditions of employment." He submitted that even if the dispute did relate either to whether a direction was properly given under the teachers' contracts or was a direction that should reasonably be obeyed, that would not be a dispute relating to the terms and conditions of employment. He suggested that BBC v Hearn [1977] ICR 685 so decided. He drew a distinction between duties under a contract and the terms and conditions of employment. He furthermore submitted that unless the Union could demonstrate that the dispute did relate to "terms and conditions" there was no other appropriate basis for bringing the dispute within s 244. In particular he submitted that the dispute did not relate to "the physical conditions in which any workers are required to work", and the dispute did not relate to "allocation of work or the duties of employment between workers or groups of workers".[26]Mr Bean QC for the Union submitted that the accurate description of the dispute was whether it was reasonable that the teachers should be required to teach P in class. He submitted that it was important to read the subsections of s 244 as a whole. He submitted that it would be surprising if it were intended that there should be anomalous gaps. So he submitted that albeit some part of what the dispute related to, could be said to be "physical conditions" it would be anomalous if something that could fairly be described as the conditions under which someone worked which was not "physical" should be excluded. He submitted that it would be strange if a dispute about the reasonableness or legality of a direction by an employer was not a dispute about the terms or conditions, but would be one if altered by the use of language suggesting that the terms of employment should be altered to render it impermissible to request the employee to carry out the particular task. He submitted that it would be strange if a dispute about the reasonableness of a direction was not a trade dispute, but a dispute about whether an employee should be disciplined for disobeying that direction was (see subsection (d) of s 244).[27]He submitted that in fact the commonest form of trade disputes related to(a) the type of work that workers should be asked to do;(b) the hours that workers should be asked to work;(c) the places where workers should be asked to work. In many cases such matters would not be spelt out in the terms of a contract employment, but would be the subject of a direction by the employer whom the employee would prima facie have to obey having regard to the employee's very wide duty to cooperate.[28]He submitted that if Mr Tabachnik was right in his approach none of the disputes relating to those matters would be trade disputes unless reference had in some way been made to amending the terms of employment.[29]Mr Bean took one example in relation to teachers and by reference to the contract in this case. The contract requires the teachers to act on the reasonable directions of the Head Teacher. Those directions may include the timetabling of teachers' work. Assume a dispute about the reasonableness of the work schedule imposed on the teachers at a particular school. It could surely, submitted Mr Bean, not be suggested that such a dispute did not relate to the terms and conditions of employment. As I understood Mr Tabachnik's response, he was inclined to accept that such a dispute would be a dispute relating to terms and conditions, but did not accept that the reasonableness or otherwise of an order of the type with which this case is concerned would be so related. Was there a trade dispute?[30]The starting point is to define what the dispute was and between whom, and then see whether that is a trade dispute within the definition provided by s 244(1). The dispute was at the time it arose described in the ballot paper but is expanded on in the announcement of the result at page 55. I accept that what is said in such documents will not be conclusive of what the dispute is if in reality the dispute is about something else. You cannot turn a dispute into a trade dispute simply by using the right language. But how persons are seeing the dispute at the material time is a fair starting point. On the history I have described it also seems to me to accord with reality and is a fair description of what the dispute was about. Putting the matter in simple language the dispute was between the teachers and the Head Teacher or possibly the Governing Body as to whether it was reasonable for the teachers to be made to teach P in class. That is what this dispute was in fact about and not just "mainly" about. I should stress that the issue must be decided not on the basis that the teachers are necessarily justified in the view they take, but on the basis that however genuinely they believe it they may be quite unjustified in that view.[31]The contractual obligation of the teachers one can find at page 663:- "Exercise of general professional duties56.1 Subject to paragraph 38.6, 39.2, 39.3 and 56.2, a teacher who is not a head teacher shall carry out the professional duties of a teacher as circumstances may require: 56.1.1 if he is employed as a teacher in a school under the reasonable direction of the head teacher of that school; Exercise of particular duties 57.1 Subject to paragraph 38.6, 39.2, 39.3, and56.2 a teacher employed as a teacher (other than a head teacher) in a school shall perform, in accordance with any directions which may reasonably be given to him by the head teacher from time to time, such particular duties as may reasonably be assigned to him."[32]Mr Tabachnik has sought to make a point that if one looks at the pleadings in this case it will be found that the Union have admitted that the action they are taking will induce a breach of contract as between the teachers and the Head Teacher. So, his argument runs, the teachers must accept that the instruction given by the Head Teacher is reasonable.[33]I am not sure that the argument is strictly logical. Under the terms of the contract reasonableness may have to be looked at from one perspective, and it may be that a court would hold that the instructions of the Head Teacher were reasonable as that word must be construed in the contract. But in the real world it would seem plain that the teachers do not accept that it is reasonable that they should be required to obey this instruction.[34]In any event it would be wrong for this case to go off on a pleading point. Does BBC v Hearn hold that a dispute about the reasonableness of an instruction from an employer is not a dispute about "terms and conditions of employment"?[35]Morison J deals with that case at paragraph 19 of his judgment. I agree with Morison J that Hearn does not go as far as Mr Tabachnik would suggest. The position in that case was that shortly before the day of the FA Cup Final a Trade Union (A.B.S.) was persuaded by Peter Hain to seek to stop the broadcasting of the cup final to South Africa. The Union stated in a letter to the BBC that if the BBC did not stop the broadcast it would request its members, the engineers, not to wok on the programme. When the BBC threatened action, ABS responded that a counter injunction would be sought on the basis that "the argument between employer and employee about the requirement to carry out duties contrary to national and international policy must be within the meaning of the Act, a trade dispute."[36]Three aspects of Lord Denning's judgment are relevant. Firstly he stressed the width of the phrase "terms and conditions of employment" "It was suggested that those words related only to the contractual terms and conditions. Some of us said as much in Cory Lighterage Ltd. V. Transport and General Workers' Union [1973] I.C.R. 339, 355-356, 363-364. But that, I think, would be too limited. Terms and conditions of employment may include not only the contractual terms and conditions but those terms which are understood and applied by the parties in practice, or habitually, or by common consent, without ever being incorporated into the contract." approved later by Lord Diplock in the House of Lords in Hadmor Production v Hamilton [1982] ICR 114 at 124F. Secondly having quoted Conway v Wade , and given various illustrations of what he termed coercive interference which were not trade disputes he said:- "Applying those considerations to this case, all that was happening was that the trade union, or its officers, were saying:
"Stop this televising by the Indian Ocean satellite, stop it yourself. If you don't, we will ask our own people to stop it for you."
That is not a trade dispute. They were hoping, I suppose, that the B.B.C. would give in; but, if they did not give in, they were going to order their members to stop the broadcast. That does not seem to me to be a trade dispute. To become a trade dispute, there would have to be something of the kind which was discussed in the course of argument before us:
"We would like you to consider putting a clause in the contract by which our members are not bound to take part in any broadcast which may be viewed in South Africa because we feel that is obnoxious to their views and to the views of a great multitude of people. We would like that clause put in, or a condition of that kind to be understood."
If the B.B.C. refused to put in such a condition, or refused to negotiate about it, that might be a trade dispute. That, I think is rather the way in which the judge approached this case. Towards the end of his judgment he said, putting it into the mouths of members through their union:
"'We wish it established as a condition of employment that we shall not be required to take part in broadcasts to South Africa so long as the South African Government pursues its policy of apartheid.'"
If that request had been made, and not acceded to, there might be a trade dispute as to whether that should be a condition of the employment. But the matter never reached that stage at all. It never reached the stage of there being a trade dispute. There was not a trade dispute "in contemplation." It was coercive interference and nothing more. If that is the right view, it means that the trade union and its officers are not exempt from the ordinary rule of law - which is that men must honour their contracts, and must not unlawfully interfere with the performance of them."[37]It will be noted that Hearn was not a case where a dispute had arisen between the employers and employees about anything, least of all was it a case where a dispute had arisen between employers and employees about whether it was reasonable for them to carry out some direction of the employer or anything else which could be remotely described as a condition of their employment. Yet the court recognised that if the Union had made it into a dispute about whether the terms of the contract between their members and the BBC should contain a particular term that might have made it into a trade dispute.[38]The judgment of Lord Denning then continues with a passage on which Mr Tabachnik particularly relies which is the third aspect of relevance:- "At an early stage in his submissions Mr Inskip produced to us the written agreement which the B.B.C. has with its employees. The very first clause says:
"You will perform to the best of your ability all the duties of this post and any other post you may subsequently hold and any other duties which may reasonably be required of you and will at all times obey all reasonable instructions given to you."
He suggested that the instructions to televise this broadcast to the Indian Ocean satellite were unreasonable and therefore the men could disobey them. That cannot hold water for a moment. Nothing could be more reasonable than for the B.B.C. to require their staff to perform their contracts, to send out this television signal so that all the viewers in Australia, Hong Kong and all the rest of the world should be able to view it. In any case a refusal to obey instructions would not make it a "trade dispute.""[39]The argument of counsel seems particularly to have been addressed to the question whether it was reasonable for the engineers to obey the instruction. That this was so seems to me clear from the first passages in Roskill LJ's judgment where he points out that if the point were right it rendered the whole of the rest of the argument academic because of course ABS would not be inducing a breach of contract. Why was counsel placing reliance on this aspect? – The answer seems to me to be that on the facts he simply could not demonstrate that an employee was disputing with the employer the reasonableness or otherwise of the BBC's direction that the engineers should work on the relevant programme.[40]This is clearer still as one reads on into Roskill LJ's judgment. He, it seems to me, makes quite clear first that no dispute as to whether the employees were bound to perform a direction of the BBC had in fact arisen and he makes clear that it would be for decision at some later stage whether a dispute as to whether as a matter of conscience employees were bound to carry out directions, was a trade dispute.[41]He then deals with the question whether as between the Union and the BBC a dispute had arisen as to the terms and conditions of employees' employment and reaches the same view as Lord Denning.[42]Scarman LJ agreed with both judgments but he also said at p.689D there were important points lurking beneath the surface.[43]That case was simply not concerned with a dispute that had arisen between employees and their employer about the reasonableness of being required to work in some particular way. It was also an interlocutory appeal heard in great haste with extempore judgments. The language must thus be approached with that in mind.[44]Morison J put the matter this way at paragraphs 20 and 21:-"20. I do not read this case as saying that there cannot be a trade dispute where there is a genuine dispute about the lawfulness of an order which has been given purportedly in accordance with the contract. If an employer may require a group of employees to work a reasonable amount of overtime then it would be going too far to say that disputes as to the lawfulness of that instruction were not trade disputes. It would depend upon the evidence. I do not read the Court of Appeal's decision as saying something to the contrary. The last sentence of the passage cited from Lord Denning's judgment does not, I think, carry that meaning. He was, I think, talking of the particular facts of that case. In other words, it seems to me to be a question of fact based upon evidence as to whether a dispute about an 'order' is a trade dispute. It may be or it may be just coercive action or a threat of coercion. There must be a dispute. But there may be a dispute not just about whether there should be a term in a contract but also whether such a term has been honoured. There may also be a dispute about the proper interpretation of a term in the contract and what is meant by "reasonable" when the head-teacher gives a teacher in his school an instruction. To ask that an instruction should be withdrawn, even if lawful, may, I think lead to a trade dispute.21. In my judgment, without having heard any oral evidence I am of the view that there was a trade dispute as to the teachers terms and conditions of employment in the sense that there was a dispute as to the entitlement of the head-teacher to give an instruction to the teachers of P to teach him in the class room. They say that the instruction is unreasonable and, therefore, one which they were not obliged to obey; the school says that it is a reasonable instruction having regard, amongst other things, to the statutory scheme for dealing with abusive pupils. There is sufficient evidence of such a dispute; in particular the reference by the Union to the unreasonableness of the instruction and the passages from the Union solicitor's letter to which I have referred. To characterise the facts, so far as they are known, as mere coercion does not properly reflect the dynamics of what I consider to be a dispute about the teachers terms, and their proper interpretation in relation to the teaching of P. On the other hand, I do not think this was an 'allocation' of work dispute nor a dispute as to the physical conditions of the teachers' work. As to allocation, Mr Giffin is right, I think, when he emphasises the attitude of the teachers which was not concerned with the identify of the person or group who were to do the work in their place; on the contrary, the teachers at the school were not concerned with what alternative arrangements the school made. There was no dispute about the allocation of work; the question of allocation arises from the refusal to obey the Head-teacher's instruction. As to the physical conditions, I reject the Union's case that there was any dispute about this item. The physical conditions in which people are required to work self evidently, I think, extend to matters such as leaking roofs and so on and not to unpleasant working conditions which put people under stress. The working conditions of the teachers were in dispute as were the instructions they were given. In my view there was a trade dispute and, subject to arguments about the ballot, there is no cause of action under section 235A."[45]I agree with his view that the reality is that "the working conditions of the teachers were in dispute as were the instructions they were given" and that thus the dispute related to the terms and conditions of employment of the teachers. Since it was his finding that this was what the dispute was about, he clearly was not misled by his own misquotation of the wording of the statute. I also agree with him that Mr Bean 's argument on allocation should be rejected for the reason he gives. I am less certain that some element of the teachers' concerns did not relate to "physical conditions" but having formed the view I have it is unnecessary to take that aspect further. What I am clear about is that it would be totally anomalous to recognise a dispute between the teachers and their employer about the physical state of their class room as a trade dispute, but not to recognise as a trade dispute, a dispute about their working conditions in the sense of the overtime they were directed to do, the number of pupils they were expected to teach, and the reasonableness or otherwise of a direction as to whom they were expected to teach.[46]On this aspect accordingly I would dismiss the appeal. The Ballot point[47]To understand the competing arguments on this aspect it is necessary to set out certain of the provisions of the Act. P's argument depends on section 232A. But to follow that argument properly, and the response on behalf of the Union, the section must be set in its context.[48]By section 226(1):- "An act done by a trade union to induce a person to take part, or continue to take part in an industrial action [ -(a) is not protected unless the industrial action has the support of a ballot, and(b) where section 226A falls to be complied with in relation to the person's employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him. [s 226A relates to notice of ballot and sample voting papers to employers setting down timescales by reference to "the opening day of the ballot".] In this section 'the relevant time', in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act.]"[49]By section 226(2):- "Industrial action shall be regarded as having the support of the ballot only if - [(a) the union has held a ballot in respect of the action -(i) in relation to which the requirements of section 226B . . . . [The scrutineer] have been complied with,(ii) in relation to which the requirements of sections 227 to [[231]] were satisfied, and(iii) in which the majority voting in the ballot answered 'Yes' to the question applicable . . . . . . . [[(bb) section 232A does not prevent the industrial action from being regarded as having the support of the ballot;]]"[50]Taking sections 227 to 231 in turn. - Section 227 provides:- "(1) Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others."[51]Section 228 and 228A relate to separate work-place ballots; section 229 relates to the requirements for the voting paper; section 230 relates to the conduct of the ballot, and provides as follows:- "(1) Every person who is entitled to vote in the ballot must -(a) be allowed to vote without interference from, or constraint imposed by, the union or any of its members, officials or employees, and(b) so far as is reasonably practicable, be enabled to do so without incurring any direct cost to himself. [(2) Except as regards persons falling within subsection (2A), so far as is reasonably practicable, every person who is entitled to vote in the ballot must - (a) have a voting paper sent to him by post at his home address or any other address which he has requested the trade union in writing to treat as his postal address; and (b) be given a convenient opportunity to vote by post. [(2A) Subsection (2B) applies to a merchant seaman is the trade union reasonably believes that - (a) he will be employed in a ship either at sea or at a place outside Great Britain at some time in the period during which votes may be cast, and (b) it will be convenient for him to receive a voting paper and to vote while on the ship or while at a place where the ship is rather than in accordance with subsection (2). (2B) Where this subsection applies to a merchant seaman he shall, if it is reasonably practicable - (a) have a voting paper made available to him while on the ship or while at a place where the ship is, and (b) be given an opportunity to vote while on the ship or while at a place where the ship is.] (2C) In subsections (2A) and (2B) 'merchant seaman' means a person whose employment, or the greater part of it, is carried out on board sea-going ships.] (3) . . . . (4) A ballot shall be conducted so as to secure that - (a) so far as is reasonably practicable, those votiong do so in secret, and (b) the votes given in the ballot are fairly and accurately counted. For the purposes of paragraph (b) an inaccuracy in counting shall be disregarded if it is accidedntal and on a scale which could not affect the result of the ballot."[52]Section 231 provides:- "As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of -(a) votes cast in the ballot,(b) individuals answering 'Yes' to the question, or as the case may be, to each question,(c) individuals answering 'No' to the question, or, as the case may be, to each question, and(d) spoiled voting papes."[53]Section 231A is relevant and provides:- "(1) As soon as reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that every relevant employer is informed of the matters mentioned in section 231. (2) In subsection (1) 'relevant employer' means a person who it is reasonable for the trade union to believe (at the time when the steps are taken) was at the time of the ballot the employer of any persons entitled to vote."[54]Section 232 relates to overseas members and nothing turns on it.[55]Section 232A provides:- "Industrial action shall not be regarded as having the support of a ballot if the following conditions apply in the case of any person -(a) he was a member of the trade union at the time the ballot was held,(b) it was reasonable at that time for the trade union to believe he would be induced to take part or, as the case may be, to continue to take part in the industrial action,(c) he was not accorded entitlement to vote in the ballot, and(d) he was induced by the trade union to take part or, as the case may be, to continue to take part in the industrial action."[56]Section 232B provides:- "(1) If -(a) in relation to a ballot there is a failure (or there are failures) to comply with a provision mentioned in subsection (2) or with more than one of those provisions, and(b) the failure is accidental and on a scale which is unlikely to affect the esult of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot, the failure (or failures) shall be disregarded. (2) The provisions are section 227(1), section 230(2) and section 230(2A)."[57]Mr Giffin's argument on behalf of P is that following the provisions of section 232A in their order the position is as follows. First the section is intended to be draconian because it makes clear both in its own terms and by virtue of the reference to it in section 226(2)(bb), that industrial action will not be regarded as having the support of a ballot, and will thus have no protection if the conditions specified apply to any person. Furthermore he says that the provision excusing small accidents or failures simply does not apply to it (see the fact that there is no reference to 232A in subsection (2) of 232B).[58]On the facts of this case he submits that the conditions of the section do apply to the two members of staff who should have been sent ballot papers but were not. They were members of the union at the time, condition (a), and there is no dispute about that. "At the time the ballot was held" submitted Mr Giffin does not mean the "opening day" of the ballot; when that day was intended the statute used that phrase (see Section 226A). "The time of the ballot" means the whole of the time until the ballot was complete. During that time the trade union, both through the branch secretary and indeed the head office, came to know the two teachers had not received ballot papers, and reasonably believed that the two would be induced to take part. That says Mr Giffin is established by the evidence including the evidence that the trade union when informing the employer of the result of the ballot included the two in the number who would be taking action (page 55 already quoted). Thus condition (b) is established. He submits the two were not "accorded their entitlement to vote" and thus (c) is established. He finally submits that the two were induced by the trade union to take part in the industrial action, and he submitted that it was sufficient to show that they were demonstrating that they would not accept the Head teacher's instructions, and standing shoulder to shoulder with the others, and unnecessary to show that the Head teacher actually asked them to teach P in class and that they refused.[59]The response of the union was that at most there had been a failure here which was accidental and on a scale which was unlikely to affect the result of the ballot, and that section 232B applied. They recognised that there was no express reference to section 232A in section 232B(2) but maintained that the reference to section 230(2A) was an error by the parliamentary draftsman. The mistake was understandable having regard to the way it would sound to say the two different subsections.[60]Those acting for P actually accepted that the reference to section 230(2A) made no sense but suggested that the mistake was not to have referred to section 230(2B). Morison J accepted the submission made on behalf of the union, and held there had been an error and the error was that instead of 230(2A), the reference should have been to 232A.[61]It seemed to us that if indeed there was an error it was not altogether satisfactory that this should be held to be so simply on the submissions of the two parties. Furthermore, and perhaps of more relevance, if there was an error, it should be capable of being checked as to precisely what that error was. We proposed that the Attorney General should be requested to investigate the matter, obviously allowing the Attorney General the opportunity to argue, if he felt so inclined, that this sort of inquiry should not be pursued.[62]Mr Hoskins was instructed by the Attorney General, and with commendable speed, for which this court is exceedingly grateful, he provided information from which it is possible to deduce first that there was an error in referring to section 230(2A) in 232B(2), but contrary to the view of the judge, secondly that the error was that the subsection should have referred to section 230(2B). The error had occurred in the following way. When the Act was introduced at the report stage in the House of Commons the language and structure of section 230 was different. In the earlier version, in addition to having some minor differences in language, sections 230(2A) and 230(2B) were transposed in the order in which they appear in the legislation today. Once this information was available, Mr Bean very properly conceded that albeit there was an error, he could no longer contend that it was the intention to refer to section 232A in section 232B(2).[63]However, having made the concession he did, he made a powerful submission to the effect that the court should reach the same result by a different route. His starting point was that if Mr Giffin were right, Parliament had produced a substantial amendment to the law. He pointed out what is more that researches showed that the relevant provisions were introduced as part of a lengthy government amendment at the report stage without a word of explanation or debate. If a substantial amendment were intended that, he submitted, would be surprising.[64]What Mr Bean had in mind by a substantial change requires an examination of the position as it was prior to the amendments being introduced. In the commentary under section 227 in Harvey on Industrial Relations and Employment Law reference is made to certain authorities. The first is a decision of the Court of Appeal in Post Office v UCW [1990] IRLR 143. In an obiter dictum at the conclusion of Lord Donaldson MR's judgment he said:
"The union clearly cannot identify and ballot those of its members who are not employees of the employer at the time of the ballot, but who will, in the event, join the workforce at a later date. It would seem to follow that any call for industrial action following a ballot should expressly be limited to those who were employed by the employer, and given an opportunity of voting, at the time of the ballot. For the avoidance of doubt, let me say at once that I am not concerned, I do not think that any court would be concerned, at small changes in the workforce but, de minimis apart, this point may repay consideration."
[65]The second is a decision of the Court of Appeal in London Underground v NURMTW [1995] IRLR 636. At the time of this decision section 227 contained two subsections; subsection (1) as quoted above and subsection (2) in the following form:- "(2) The requirement in subsection (1) shall be taken not to have been satisfied if any person who was a member of the trade union at the time when the ballot was held but was denied entitlement to vote in the ballot is induced by the union to take part or, as the case may be, to continue to take part in the industrial action."[66]That subsection was deleted when the amendments that included the present section 232A were added. It will be noted that section 232A covered very much the same ground as the previous subsection (2) of section 227. Millett LJ in the lead judgment disapproved the dictum of Lord Donaldson (save the reference to de minimis), and his judgment is of relevance to the issues in this appeal.[67]The facts of the case were that the union in that case gave notice to the employers under 226A of the Act of its intention to hold a ballot. Section 226A requires the union to take such step seven days "before the opening day of the ballot". It is perhaps of some interest also that section 226A (using its present terminology) also requires a notice "containing such information in the union's possession as would help the employer to make plans and bring information to the attention of those of his employees who it is reasonable for the union to believe ( at the time when the steps to comply with that paragraph are taken) [my emphasis] will be entitled to vote in the ballot."[68]RMT gave notice specifying the persons who were at that time members of the union. The ballot was held between 4 th and 17 th August 1995. On 17 th August the union notified the employers pursuant to section 234A of the result of the ballot, and of its intention to call for industrial action between 25 th August and 4 th September. In that notice were listed the members whom the union intended to call to take part in the action, and the list contained 20 persons who had joined the union (using the words of Millett LJ) "since the date of the ballot". In early September the union served a further notice under 234A of further action, and the list of members in this notice included a further 672 members. Millett LJ records that "the plaintiff did not complain about the addition of the original 20 names; it regarded this as de minimis. The plaintiff does however complain of the addition of nearly 700 names." The judgment then treated the 20 and the additional 672 as in the same category referring to them as the 692 "who had joined the union after the ballot". The decision of the Court of Appeal was that once a ballot had been held the union were entitled to recruit members and induce those members to take part in industrial action despite the fact that those members would not have been balloted. It is I think helpful to quote the reasoning of Millett LJ with whom the other members of the court agreed:- "There is nothing in the very detailed requirements which Parliament has laid down for the conduct of the ballot which compels the union to restrict its call for industrial action to those of its members who were members at the date of the ballot and were given the opportunity to take part in it. Parliament must be taken to have appreciated that there would be constant changes in the membership of a large union, and that by normal accretion alone significant numbers of new members might join the union between the date of the ballot notice given to the employer under s.226A and the holding of the ballot, and between the holding of the ballot and the taking of industrial action. In the case of a lengthy dispute, the numbers in the latter case could be very large indeed. But all this is expressly catered for. Section 226A requires the union to notify the employer of those of his employees who it is reasonably for the union to believe at the time when it takes steps to give them notice will be entitled to take part in the ballot. When the ballot is held, s.227(1) requires the union to ballot all those of its members who it is reasonable at the time of the ballot for the union to believe will be called upon to take part in the industrial action proposed and no others. If new members have joined since the service of the s.226A notice, they must be included in the ballot. There is nothing in s.227 which precludes the union from calling on them to take part in the industrial action. Non-members must not be included in the ballot. If the union intends to call out signalmen but not train drivers, the signalmen must be balloted; the train drivers must not . The object is to prevent the union from distorting the result of the ballot by including militant members whom it does not intend to call upon to take part in industrial action. This is reinforced by subsection (2) which prevents the union from confining the ballot to militant members whom it does intend to call out and then changing its mind and calling out other less militant members who were members of the union at the time when the ballot was held but who were not balloted, then it must hold a fresh ballot. But there is nothing in the section to preclude the union from including in the industrial action new members who were not balloted (and who could not lawfully be included in the ballot) because they were not members of the union at the time when the ballot was held."[69]He then disapproves the dictum of Lord Donaldson in Post Office v Union of Communication Workers supra .[70]The above has relevance to the following points. Firstly he explains the background to the sections in the legislation. Secondly it would seem that time of the ballot was taken to mean when the voting papers were sent to the members since the 20 who were added on the 17 th August were treated as if they had joined after the ballot although they must have joined in reality before the ballot was completed. Thirdly he emphasises that the ballot validates the industrial action, and will do so even if other members who have not voted are induced to take part in the industrial action. Fourthly he does not disapprove of the reference to de minimis in Lord Donaldson's dictum. The judgment did not consider how far the de minimis principle might go; nor did it consider what might be the position if an inadvertent error had been made in relation to according a member an entitlement to vote in the ballot which would in fact have made no difference to the ballot result.[71]The reference to Section 227(2) caused me to try and discover whether any court had had to consider in any further detail that subsection, and in particular the effect of "inadvertent" or de minimis errors in the context of that subsection. Harvey at paragraph 3094.02 refers to a previous Court of Appeal decision also referred to in Halsbury's Laws Volume 47 paragraph 1432. That paragraph expounded the law prior to the amendments introduced in 1999 reciting section 227(1) and (2). A footnote to 227(2) referring to the words in that subsection "denied entitlement to vote" said this "Denial of a person's entitlement to vote in the ballot implies something more than an inadvertent failure to give him an opportunity to vote: British Railways Board v National Union of Railwaymen [1989] IRLR 349 at 351 CA Lord Donaldson of Lymington MR." That footnote is supported by a passage in Lord Donaldson's judgment in that case where in relation to the then provisions of the relevant legislation, section 11(2) of the 1974 Act (equivalent to section 227(2) as it then became), he said "What Mr Carr says is that if they were not given an opportunity of voting they were denied their entitlement to vote. I disagree. There is a profound difference, as I think, between denying someone's entitlement to vote and inadvertently failing to give them the opportunity to vote."[72]Therefore when the former section 227 with subsection (2) in its then form was in force, what would have been the approach of the court to the sort of factual situation with which this appeal is concerned? The judge held that the failure that occurred in this case was accidental, and on a scale that was unlikely to affect the result of the ballot. This finding was in the context of course of the judge holding that "the time of the ballot" in section 227(1) and thus in 232A (b) was the time when the voting papers were sent to employees. I do not understand there to be any challenge to the finding that the failure was accidental, at least if the judge was right as to the appropriate moment in time to test that question. There is clearly no challenge to the conclusion that it was unlikely to affect the result of the ballot; the figures speak for themselves.[73]So the question would have been, would the two teachers have been denied the entitlement to vote? On the view that "time of the ballot" meant the time when the voting papers were sent to members, the answer on the basis of Lord Donaldson's dictum would have been no.[74]As I see it, the competing arguments would have been very little different from the arguments that have arisen on the appeal in relation to the proper construction of section 232A. There is, it should be recognised, a difference in the wording – first in the former section 227(2) the words were "denied the right to vote" the positive nature of which was much relied on by Lord Donaldson in the passage I have quoted, whereas in section232A(c) the words follow the language of section 227(1) and are "was not accorded entitlement to vote". Secondly the full language of section 227(1) is used in 232A(b) ("it was reasonable to believe etc"), whereas it may simply have been implicit in the former section 227(2).[75]The argument would have been first that what section 227(1) and (2) were concerned with was not so much providing rights to individuals to make sure they were accorded their rights to vote and/or were not induced by the union to take action when they had not voted, but with making sure that the union did not behave unfairly in any of the following ways –(1) So far as section 227(1) was concerned, deliberately missing people out who might have voted against the action, or(2) Including persons under subsection (1) of section 227 who would vote even though the action was not truly relevant to them, or(3) Inducing people to take part even though under section 227(1) they should have been given the opportunity to vote but were not. The sanction was to remove all immunity so far as the union was concerned, if the union so behaved. It was not intended to take that immunity away if the union simply by inadvertence made a mistake that resulted in a member not being accorded their entitlement to vote.[76]The argument the other way would have been that sections 227(1) and sections 227(2) dealt with different stages; 227(1) with the time of the ballot, and section 227(2) with inducing after the ballot had taken place. Inadvertence should be forgivable at the time of the ballot, but the union should still be precluded from inducing persons to take action if they have not been accorded the entitlement to vote.[77]It seems to me that the judgment of Millett LJ is contrary to the second submission in that it does not support the view that there is a second stage when inducing a person who was not balloted to take part in an industrial action will lose the trade union its immunity. Furthermore the dictum of Lord Donaldson demonstrates that the court would have accepted the first argument in relation to an inadvertent mistake which had led a member not to have been accorded his entitlement to vote. I would suggest that it must be right that no distinction should be made between the two stages because the very thing that is being contemplated as entitling someone to vote under section 227(1) is that it is reasonable for the union to believe that the person will be induced to take part. In considering whether the union loses its immunity altogether, an inadvertent mistake which means that someone is not accorded the entitlement to vote, even though they will in fact be induced to take action, should not count.[78]The question is whether that position has been altered by the introduction of 232A in place of subsection (2) of 227 with its change in language, and by the introduction of 232B?[79]It seems to me that section 232B is intended to formalise the position so far as inadvertence is concerned. It may also assist in areas previously covered by the de minimis principle. As regards section 232A, it seems to me that if the argument which Mr Giffin employed which was to the effect that the section was intended to look at a different stage from section 227(1) i.e. at an inducement stage, would have failed before section 232A came into force and while the relevant provision was section 227(2), it should fail on the wording of this new section as well.[80]The conditions (a) to (d) are cumulative; (a) to (c) reflect the very wording of section 227(1). Thus the wording in (c) "he was not accorded entitlement to vote in the ballot" itself reflects that there must have been a failure to comply with section 227(1) for there to be a failure to comply with the conditions in section 232A. But section 232B states that if there is a failure to comply with section 227(1), and the failure is accidental or on a scale which is unlikely to affect the result, the failure must be disregarded. That must mean that the failure to accord entitlement to vote must be disregarded where that is accidental and would not have affected the ballot.[81]In the result it seems to me that no great change has been brought about by the amendments.[82]It must be for this reason that in Harvey on Industrial Relations and Employment Law paragraph 3094.02 British Railways Board v NUR and Lord Donaldson's dictum is still said to apply to the new section 232A.[83]I should just add a word on the words in section 227, and in 232A(b) "at the time of the ballot". It could be said with force that if "the time of the ballot" means the whole period of the ballot on the facts of this case ultimately it was not an accident that led to the exclusion of these members from their entitlement to vote. I am not sure Mr Giffin quite put the matter that way, but it seems to me to logically flow from the argument that he did raise as to whether it was reasonable "at the time of the ballot" to believe these members would be induced to take part. His argument was that at a time when ballot papers could still have been got to these two members the union did appreciate the accident that had taken place.[84]It was pointed out by Mr Giffin that under section 246 "date of the ballot" is defined. In the case of a ballot in which votes may be cast on more than one day the date of the ballot means the last of those days. In section 226A reference is made to "the opening day of the ballot". So Mr Giffin's argument runs, if the draftsmen intended to identify a date they could do so. But in both the above instances what the draftsman is doing is specifying one day when otherwise there might be more than one. That follows from the wording of section 246 and subsection 226A(4). It does not assist in identifying what was meant by the "time of the ballot".[85]It seems to me that the passage from Millett LJ's judgment already quoted supports the view that it was not intended that by the phrase "time of the ballot" to refer to some flexible date during the period between the ballot papers being sent out and the voting actually took place.[86]The words I have emphasised in section 226A quoted above seem to me to support the arguments in favour of the "time of the ballot" being the time when the procedure starts, and this seems to me to be the way in which Millett LJ has interpreted the sections. Mr Bean stressed, as did the judge, that if "time of the ballot" means any time from the time of sending out the ballot papers until for example the last of the three days during which voting may happen, the position of the union would be almost impossible. If new members joined during the period, the union would have to take a decision as to whether it had time to send ballot papers to the new members by post, for those members to be able to have time to consider and vote. If there were a dispute the court would have to gauge at any stage during the ballot procedure whether the union reasonably believed some member to whom they had not sent ballot papers was likely to be induced to take part. The question whether the draconian measure bit so as to deprive the union of the benefit of its immunity might depend on whether it was reasonable to have tried to get ballot papers to the new members or whether the right course was to have started the process again.[87]It seems to me it simply cannot have been intended that the question whether the union should have protection or not would be answered by a close examination of whether at the stage that the ballot procedure had reached, it was still possible to post ballot papers to the members now thought to be likely to be induced in time for them to take part in the ballot. It cannot have been intended that every ballot where new members joined during the ballot procedure should have to be recommenced in order to avoid losing the benefit of the ballot procedure.[88]It seems to me that the judge is right in the conclusion he formed that the "time of the ballot" meant when the ballot papers were sent out.[89]I should deal shortly with one final point relating to inducement. Mr Bean's argument was that unless either of the two teachers had been actually requested to teach P in class, they would not have been induced to take part. I do not think that argument is right. Furthermore the fact it is not right seems to me to lend weight to the validity of the previous points that I have sought to make.[90]These two teachers were ultimately part of the industrial action and specified amongst the 32 in the notice given to the Head teacher. Workers can take part in the industrial action by making it clear that they fully support others, and would refuse to teach if they were asked. That is what these two teachers have done on the call of the union, and that it seems to me would mean they were induced to take part.[91]I would thus dismiss the appeal on this ground also.

LADY JUSTICE HALE:

[92]I agree. SIR PHILIP OTTON:[93]I also agree.

ORDER

Appeal dismissed with costs; section 11 order against Legal Services Commission; permission to appeal to House of Lords refused. (Order does not form part of approved Judgment)

Cited in 2 later judgments