Govia Thameslink Railway Ltd v The Associated Society of Locomotive Engineers and Firemen [2016] EWHC 985 (QB)

[2016] EWHC 985 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCase No HQ16X01325Venue Royal Courts of JusticeThe StrandLondon WC2A 2LLDate Friday, 22 April 2016
Before
MR JUSTICE LANGSTAFF
Between
GOVIA THAMESLINK RAILWAY LIMITEDClaimant-v-
Between
THE ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMENDefendant
JOHN CAVANAGH QC and JULIAN MILFORD (instructed by Eversheds LLP) appeared for Claimant.JOHN HENDY QC and STUART BRITTENDEN (instructed by Thompsons Solicitors LLP) appeared for Defendant.
Friday, 22 April 2016Judgment
[1]By a claim issued on Monday of this week, the claimant, which operates Gatwick Express, seeks an order preventing ASLEF, the well-known train drivers' union, from instructing, inducing or encouraging its members who drive trains on Gatwick Express services not to drive nor to operate 12-car trains on a driver-only operation (passenger) "DOO(P)" when instructed to do so.[2]It also seeks an order that the union tells its members that they should cooperate with any instruction to carry out such working, and that previous communications of the defendant which might be thought to the contrary should be disregarded. It seeks damages too.[3]The basis of the claim is that the defendant has acted unlawfully by inducing, procuring and/or persuading employees of the claimant to break their contracts by refusing to drive such trains.[4]The case comes before me on an application for an interim injunction, given what is said to be the urgency of the matter so far as the claimant is concerned.[5]It is common ground between the parties that this is not one of those applications to which the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992, and in particular sections 219 and 221, apply because there has been no ballot with the support of which the members of ASLEF would withdraw their labour, nor is the matter in contemplation or furtherance of a trade dispute as referred to in those sections.[6]Accordingly, I have to ask the questions which arise under traditional American Cyanamid principles, namely, first, is there a serious issue to be tried; that is, does the claimant have a good, arguable case: it is not necessary for the claimant at this stage to go so far as to prove its case on the balance of probabilities. Secondly, I must ask whether, if so, damages would be an adequate remedy. And, thirdly, if not, does the balance of convenience favour the grant or the refusal of an injunction?[7]Mr Cavanagh QC, who appears for the claimants together with Mr. Milford, acknowledges in his skeleton argument that in most cases involving potential industrial action, which it is said this is, the determination of the interlocutory issue is in practice likely to determine the entire action and so it is incumbent on the court to have regard to the underlying merits of the claim.[8]This has to be understood in this case in the context in which ASLEF proposes to ballot its members in relation to the issue of whether they should work driver only, on 12 car trains on the Gatwick Express routes, as proposed by the claimant.[9]Nothing which I have to say in this judgment affects the right and entitlement of ASLEF to conduct that ballot and to put forward its views to its members as forcefully as it thinks appropriate.[10]The defendant has not yet had time to file a detailed defence to the formal claim but has responded by providing me with witness statements and exhibits in response to the voluminous exhibits and witness statements provided for by the claimant. More arrived today from both parties.[11]The defendant ASLEF asserts that any instructions to drive DOO(P) services consisting of more than 10 cars do not contractually bind employees to obey, and the employees are not, therefore, in breach of their contracts if they refuse to do so.[12]ASLEF says that in any event it has not told its members to refuse to drive 12-car services. It has simply informed them that ASLEF has not reached agreement with the claimant that drivers employed by it should do so. This was an accurate statement of fact. Since that was the extent of the information it provided, it did not therefore induce nor persuade them to break their contracts, even if those contracts did oblige drivers to work 12-car trains on a DOO(P) basis.[13]Further and separately, ASLEF says that if what ASLEF has told its members in the way that it has had the effect of inducing or persuading them to break their contracts, this was unintentional and, further, it was never intended that members should break their contracts. In the current state of the law, this means it cannot be liable.[14]Mr Whelan, the general secretary of ASLEF, puts the point powerfully in his witness statement at paragraphs 26 and 29:
"I can totally confirm that ASLEF did not intend that anyone reading these ... messages would withhold their labour ... ASLEF never calls for industrial action without a ballot and always tries to keep within the law."
[15]And at 29:
"I am very conscious of ASLEF's responsibilities as a trade union not to call for industrial action without the protection of a strike ballot. We had not balloted our members and, therefore, we would not instruct or require them to break their contracts of employment, if indeed it were to be a breach of contract to refuse to drive a train where agreement had not been reached with ASLEF."
[16]The essential legal principles which apply to the claim upon which this application is based are these:(a) it is a claim in tort;(b) the requirements of that claim are now set out authoritatively in the case of OBG Limited & Another v Allan [2007] UKHL 21; [2008] 1 AC 1. The headnote at [2008] 1 AC 3, D to F sets it out accurately:
"Inducing a breach of contract was a tort of accessory liability and an intention to cause a breach of contract was a necessary and sufficient requirement for liability; that in order to be liable a person had to know that he was inducing a breach of contract and to intend to do so with knowledge of the consequences; that a conscious decision not to enquire into the existence of a fact could be treated as knowledge for the purposes of the tort; that a person who knowingly induced a breach of contract as a means to an end had the necessary intent, even if he was not motivated by malice but had acted with a motive of securing an economic advantage for himself; that, however, a breach of contract which was neither an end in itself nor a means to an end, but was merely a foreseeable consequence of a person's acts, did not give rise to liability; that there could be no secondary liability without primary liability and, therefore, a person could not be liable for inducing a breach of contract unless there had in fact been a breach of contract by the contracting party."
[17]Further to that, in his speech Lord Hoffmann also said, paragraph 39, that: "It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach. You must actually realise that it will have this effect. Nor does it matter that you ought reasonably to have done so." and he went on to describe how an honest but unreasonable belief that the contract was other than it was was a sufficient defence.[18]It follows that the issues which have to be determined by me in this application are whether there is a good arguable case for the claimant first whether the employees would be in breach of contract if the inducement had the effect of persuading them not to work DOO(P) trains for Gatwick Express; second, whether what ASLEF did had the effect of inducing them to do so; and third that, if so, ASLEF intended to do so.[19]The dispute centres upon Gatwick Express. Gatwick Express is the brand name of operations which are conducted by the claimant in serving Gatwick Airport from London Victoria. The service now extends from London Victoria to Brighton. It is popular, and more than 40 per cent of passengers using Gatwick are said to use the Gatwick Express. The claimant also relevantly operates services known as Thameslink, and trades as Southern, which involves some “Metro” services.[20]The facts not in dispute before me appear to be these: 1) Some 96 per cent of the drivers on the Gatwick Express service are members of ASLEF. Some 90 per cent of all the claimant's drivers are members. 2) For some 17 years, Gatwick Express has operated trains on a DOO(P) basis. Initially, 9-car trains, known as Junipers, and more recently, 10-car trains made up of two sets of five coaches each, known as class 442 were worked in this manner. 3) In its Thameslink operations, the claimant runs 12-car trains of class 377, and it has been agreed in principle with the union that the new 700 class trains, which will consist of 12 coaches, will also be run on passenger services whilst driver-only operated. 4) In his witness statement filed on behalf of the claimant, Mr Bindon, the HR director of the claimant, said at paragraph 68 that the Brighton mainline, BML, had operated on a DOO(P) basis for many years and that Thameslink services since 2011 had operated entirely on a DOO(P) basis. This has not been contradicted. 5) Class 442 trains are old. They have no in-cab CCTV. Since 1999, according to Mr Bindon, those trains have operated DOO(P) between London and Gatwick with platform dispatch - that is where a member of the station platform staff controls the dispatch of the train by checking if it is safe for the train to leave, then giving a signal to the driver to close the doors and to pull away. 6) Brighton Main line (“BML”) is operated by the claimant too. 7) Class 442 trains are to be replaced, if the claimant has its way, by new trains known as class 387. These have a number of advantages. So far as the passengers are concerned, they have more space; they provide better access, in particular, for luggage. When operated in 12-car sets, they provide a greater number of spaces for passengers and thus a lower prospect of overcrowding. They are likely to be more reliable than the 442 service. So far as the claimant is concerned, as operator of the service, they are cheaper to maintain and to run. They are more reliable. The 442 service has reached what might be described as its sell-by date. So far as drivers are concerned, the train is fully computerised. It has, as the 442 does not have, the advantage of in-cab CCTV. This allows a driver to check the doors of a train before pulling off, and enhances safety. Mr Cavanagh in his submissions added that there were additional advantages, in that the new trains were better for those passengers who had disabilities relating to mobility, and had wi-fi. He described the impact upon the driver operating longer trains than as present on a Driver Only basis as minimal. 8) It is also not in dispute that the claimant now has a large number -- what it describes as a critical mass -- of the new class 387 rolling stock. That is why it wishes to introduce those trains now. It currently leases its class 442 trains from a leasing company at a peppercorn rent under a contract which expires in June 2016. If it has to continue leasing those trains after that time, it will be placed at a commercial disadvantage. This is because there will be an added cost to the leasing, there will be difficulties in storing both the 387 trains, as they are required, and introduced, if they are, and the 442 units which are on their way out. If the claimant has to stable some trains on other parts of the network than those currently used, there will be a cost to this. The claimant's case is that if the new trains are not introduced by 25 April, this coming Monday, the lease on class 442 trains will have to be extended and these storage costs incurred. Timing is thus critical to it, hence this application for this injunction, fearing, as the claimant says it does, that other drivers will follow what they may understand to be the lead given by their union that they are entitled to refuse to work the 12-car trains.[21]The first disputed issue is whether there is a contract which requires the driver, if asked or instructed by his manager, to drive a 12-car DOO(P) train on the Gatwick Express.[22]The drivers may work under one of four contracts. It is said by the defendant that one of those contracts is the British Rail contract predating railway privatisation and the introduction of the Gatwick Express, but no copy of that contract has been produced before me, and subsequent evidence provided by Mr Evans for the claimant is to the effect that such contracts were all superseded by Gatwick Express contracts. There is no further evidence to contradict that. It is common ground, however, drivers who work on the Gatwick Express may do so under any one of three other forms of contract. These derive from their contracts with previous railway operators, the rights and liabilities under which were transferred under TUPE to the Claimant. These are a contract with Connex, a contract with New Southern Railway, which I shall call "the Southern contract", and Gatwick Express terms and conditions themselves.[23]So far as Gatwick Express terms are concerned, at clause 2 the contract provides as follows:[24]So far as Southern is concerned, clause 2 reads:[25]So far as Connex is concerned, clause 3 provides at 3.1:[3]2:
"Your main duties are as set out in your job description, which is attached ... to this contract." 3: “In addition, you are required to carry out such other duties as defined by your manager from time to time. You will work with full flexibility for the company and will undertake any work which, in the company's opinion, you are trained and competent to perform, including any non-operational duties."
[26]It is common ground between Mr Cavanagh QC, and Mr Hendy QC, who appears with Mr Brittenden for ASLEF, that on the face of it those contracts all permit the employer to ask or require a driver to drive a 12-car DOO(P) train. A driver would be obliged to comply unless there was something which was unreasonable about the request: otherwise it would fall lawfully within an employer's powers under such a contract. Accordingly, the dispute between the parties is whether or not there are other contractual terms which affect the width and scope of what would otherwise be a reasonable and lawful instruction under clauses 2 or 3 of the respective contracts.[27]ASLEF contends there are such terms. This arises because (a) the Gatwick Express contract is said by clause 16 to incorporate trade union agreements. It does so in these terms:
"Your contract of employment is subject to such terms and conditions as may be settled from time to time in relation to employees of GE Limited. In the event of any conflict between this contract document and any trade union agreements, this document will prevail."
It then sets out a list of titles of collective agreements which directly affect the terms and conditions of employment, though the list in this contract is somewhat uninformative. (b) So far as Southern is concerned, at clause 24 under the heading "Incorporation of trade union agreements", is said:
"Your contract of employment is subject to such terms and conditions as may be settled from time to time in relation to employees of the company in your grade or category under collective bargaining between the company and recognised trade unions. In the event of any conflict between this contract document and any trade union agreements, this document will prevail. This document supersedes any previous agreements."
It recognises that employees are entitled to take up trade union membership at clause 25, and at clause 26 sets out what are described as general policies and procedures, in the course of which it mentions that the terms and conditions of employment are comprised of the following, and sets out amongst them "The Driving Grades terms and conditions booklet." Accordingly, that agreement plainly incorporates not only collective agreements but also the Driving Grades terms and conditions booklet. (c) The Connex agreement, by contrast, says nothing about incorporation of collective agreements. It was, however, reached between the parties in the knowledge and expectation that employees who were subject to the contract might very well exercise their right to join a trade union. At clause 21, is said:
"You may, if you wish, although you are not required to, become or remain a member of a trade union recognised by CSC for collective bargaining."
Mr Hendy argues that in the particular context of the railways, that clause indicates that the employer had in mind the unionisation of the workforce, as would be expected, and suggests that there was a mutual intention which did not need to be expressed more formally that the contract would be subject to agreements reached collectively, the law being, as both counsel recognised, that collective agreements are not binding upon the union that makes them, but may be apt for incorporation in relevant respects in individual contracts of employment of trade union members and, for that matter, other employees working for an employer. Mr Cavanagh does not seek to argue, as might be thought unrealistic if he had, that Connex employees were a class apart from those on Gatwick or Southern contracts in that they were not the beneficiaries of any agreement that might be reached collectively by a union of which many of them were members.[28]Accordingly, the issue between the parties narrows to whether there is anything in a collective agreement reached between ASLEF and the Claimant to which the union can point which has become incorporated in individual employees’ contracts of employment and which is to the effect that that employees were entitled contractually to decline an instruction to drive 12-car DOO(P) trains though this instruction would otherwise be regarded as lawful if given under the unqualified terms of clauses 2 and 3 in the respective contracts. As Mr Hendy puts it, he accepts that absent a contractually enforceable restraint, the employees of Gatwick Express could be asked to drive 12-car DOO(P) services. They had an implied duty to adapt to new technology. He notes that the position is well captured by the observations in Bull v Nottinghamshire Fire and Rescue Authority [2007] ICR 1631, EWCA (Civ) 240 at paragraph 23, where Lord Justice Buxton observed that, in the context of a case in which firefighters were instructed by their employers to operate, summarising, as paramedics, and it was argued that they were obliged by a general term in the contract so to do, that though generally there was an obligation on an employee to obey his employer's instructions and to cooperate in the work the employer wished him to do "the employer can only give instructions to his employee to do that which the contract requires the employee to do. Otherwise it is not a question of the instruction being lawful or unlawful, but rather that the tasks are not open to the employer to require of his employee". In his argument, the effect of the collective agreements is to place 12 car DOO(P) operation outside the scope of that which the contract required drivers to do.[29]The collective agreements which are said by the defendant to be the agreements relevant for this argument were made, it is said, in 2003, 2009, 2011 and 2013. They were reached by a decision of the Company Council. The Company Council is a council of both staff and management representatives which, I am told, relates to Southern and Gatwick Express services, though not in this context to other services operated by the claimant. There is a collective agreement about the constitution of the Company Council itself. Mr. Cavanagh relies on the terms of this. It provides that certain questions are for “discussion and resolution” and other matters are for “discussion”. Mr Cavanagh points out the words "and resolution" are missing from the latter, and, therefore, the only obligation of the employer, or for that matter the employee, under this agreement is to consult: to talk but not to decide.[30]Amongst the matters which are said to be for discussion, as opposed to “discussion and resolution” are matters which are expressed broadly which are unlikely to find their way into individual contracts as enforceable terms. These relate, for instance, to “welfare and accommodation”, to “medical standards” and (perhaps not enforceable in any specific way thus broadly expressed) “equal employment opportunities”. Of greater likelihood in my view of being enforceable by an individual were “changes in working practices”. It is accepted between counsel that the operation of 12-car DOO(P) services in place of the 10-car services on the Gatwick Express line previously run by 442 trains would amount to a change in working practice.[31]I have to say that Mr Cavanagh argues that any agreement of the Company Council in respect of changes in working practices is not of a sort which is likely to be contractually enforceable because it was for discussion only in the first place. I do not think this argument meets scrutiny. If an agreement is reached, it is an agreement. The question is not whether it is an agreement, but what is the force of the agreement which has been reached. This depends not upon the machinery which gave rise to agreement, but rather to its intrinsic nature and proper construction.[32]Agreements, as such, were reached on some aspects relating to driver-only operation. In 2003, the Company Council stated (see the 30 January 2003 minutes) that it was not prepared to consider DOO insofar as 375 or 377 units were concerned unless in-cab CCTV was in operation. It noted:
"There was currently no agreement for running DOO with more than 8 cars. They were prepared to discuss running up to 9 cars with the introduction of the 375/7 units."
At that stage, this could not have applied to Gatwick Express, since it was a separate business, under separate ownership and management. Such too was the case on 13 February 2003 when a further agreement (or refinement of the agreement) was noted under the heading "Driver-only operation 375/7 units", in which a Mr Smith was said to have advised that the 375 units on the Brighton mainline would begin operation, and they would be of 12-car formation and have a conductor on board, adding:
"They would only be passed for DOO service once the safety assessments were agreed or changes made in conjunction with HMRI."
The Company Council, it is noted, agreed that it would consider the operation of those units under DOO(P) conditions, subject to the involvement and agreement with the Company Council and on the understanding it would be restricted to routes currently operated by South Central under DOO(P) conditions. This appears to contemplate the running of 12-car DOO(P), units without there being any great objection to it.[33]Mr Bindon, in his witness statement, does not state when precisely 12-car unit operation was introduced after that, though he says, as I have recorded, that at any rate it was in operation on Thameslink following 2011.[34]The 2009 discussion led to the following note. Against a bullet point headed "class 377 units service disruption (item A) appendix", underneath which was put in bold "running of services DOO that are booked to have a conductor", with underneath that "control instructions version 3 16/06/09", is said this:
"During times of service disruption or conductor displacement, trains formed of 377 units may run under DOO(P) conditions on agreed routes (Brighton mainline to Victoria and London Bridge), stopping only at staffed platforms, providing the conditions set out below are met. This agreement does not apply to circumstances where the conductor's turn is on the no-cover list or where the turn is vacant due to known sickness/absence (known sickness/absence is defined as 30 minutes prior to the conductor booking on time). This agreement will only be implemented as a last resort when all other options for conductor provision have been exhausted."
It then sets out nine numbered paragraphs which all appear to be subject to those opening words, contemplating that the provisions are to apply to services where a conductor had been booked, where there is now disruption. The first such paragraph refers to a replacement conductor, and in bold:
"Before applying any of the following, you must see if a replacement conductor can be provided!" 2 relates to manned stations. Plainly the intent of that is to make sure that there is someone on the platform responsible for the safe departure of the train and it is not left to the driver alone. 3, 4, 5, 6, 7 and 8 all begin with particular reasons why the conductor otherwise booked to attend, one assumes, given the heading, has been unable to do so. 9 is of slightly different form. It says: "
DOO services in excess of 10 cars." That is in bold and underlined:
"A conductor should normally be provided unless there is service disruption."
The 2011 discussion in relation to driver-only operation arose when a Mr Morris, he being the head of trains and distinct from the Mr Morris whose witness statement is before me for the union, spoke about a trial 10-car formation which the claimant proposed to run as a test train.[35]At a joint Company Council meeting on 12 October 2011, the RMT, which relevantly represents train guards and conductors, asked for an assurance that the DOO operation would not be “extended”.[36]On 3 November 2011, there was a meeting of the Company Council at which the Company Council was told that the company was seeking agreement to run 10-car DOO trains with in-cab monitors, and the company agreed to ensure that the wording of the regulations would be changed to "include the use of RA where fitted". (“RA” is an electronic signal to a driver, operated by a member of platform staff to tell the driver that it is safe to drive off.)[37]No concerns arose immediately after that. Mr Bindon says that it was in and since 2011 that driver-only operation occurred on the Gatwick Express. Nothing in evidence contradicts this.[38]In 2013, further discussion was noted about driver-only operation, under the heading "DOO in disruption". That plainly related to the Brighton mainline because it spoke of Preston Park, Hove and Brighton (stations) and of calling at unmanned stations with up to 12 cars using in-cab CCTV and Dorking-Horsham non-stop. The prospect of this was to be included in pay discussions.[39]As an addendum to the driver pay review, revised agreements were set out (see what is page 36 of the defendant's bundle before me) which repeated the words quoted above which derived from the 2009 agreement, though there was a rather longer list of those stations identifying those which were staffed or unstaffed.[40]The defendant points to those terms as restricting the entitlement of the claimant to require drivers to operate 12-car DOO(P) trains on the Gatwick Express line. The claimant responds by pointing out that the agreement relied upon was specific to 377 trains and not one specific to the Gatwick Express, which did not operate 377 trains. The agreement also refers to operation in times of disruption where it was otherwise to be expected that the trains would have a conductor on board. Mr Cavanagh submits that this is no proper ground for concluding that the contract was in any way to be restricted, even if those terms were to be treated as incorporated in the contract.[41]In my view, the argument for the claimant to the effect that the terms said to restrict the entitlement of the employer to require the driver to work as intended by the employer in this case do not do so is a strong one. I see little, though there is some, prospect that at trial it might be concluded that the terms of the collective agreement affected the entitlement, or what would otherwise be the entitlement, of the employer to issue a requirement to work 12-car DOO(P) services.[42]When construed objectively, in the light of the readership to whom it was addressed, in a context in which DOO(P) operation was widespread as a matter of regular timetabling, the agreement is very likely to be interpreted by a court as relating only to those occasions when a conductor was rostered to be on the particular service in question, and prevented from being so by unplanned service disruptions; and appears further to be specific to services operated by specific classes of train. If this leaves room for any ambiguity, then since it is a modification of what would otherwise be the position under the contract of employment the approach of the courts would be to construe the “restriction” narrowly.[43]I bear in mind that, throughout, the papers mention that driver-only operation has been the subject of discussion with a view to reaching an accommodation, whether in the context of pay talks or more generally, but that does not mean to say that it has had to be subject to specific agreement. It is well recognised that many employers, entirely properly and sensibly, seek to reach agreement by discussion rather than by the exercise of what may otherwise be seen as a stark contractual right. Better discussion than imposition. Taking the view, as I do, that both Mr Cavanagh's arguments on the evidence before me about the scope of the 2009 collective agreement are arguably well-founded, it follows that the greatest scope that could be given to the collective agreements, if incorporated, falls short of their affecting the operation of the Gatwick Express service and the extension of DOO(P) from 10 cars to 12.[44]The union expressed a view in a press statement of 27 November 2015 that it believed that the method of operation, DOO(P), was less safe for passengers and workforce than one with a conductor, and noted that the responsibility of the driver of the train is to drive, which requires 100 per cent focus. Intuitively, it might be thought that a system which ensures that the safety of passengers boarding and departing trains is left to a particular individual, whether on the platform or in the rear of the train, is more likely to be safe than one which depends upon a driver alone, who has other tasks to do in due course too, but it does not mean to say that DOO is unsafe, and the press statement does not go that far. If it were unsafe, then I have little doubt that that would have been argued before me, and it has not been, as a reason for entitling drivers to refuse what would otherwise on this construction be a lawful and reasonable instruction.[45]Mr Cavanagh goes further and submits that in any event the terms are not apt for incorporation. In doing so, he relies upon well-travelled authority, so well travelled he did not even put it in his bundle of authorities, cases such as Robertson v British Gas, Alexander v Standard Telephones & Cables and the like. Not every term of every collective agreement becomes part of a contract of employment. It may well be so if it affects an individual employee in particular and if it is one which is of a nature upon which one would expect him contractually to rely. The most obvious such terms are those in respect of payment. But terms in respect of working conditions may and often do have similar effect.[46]There are some situations in which that is not so. Thus in the case of Malone v British Airways [2011] ICR 125, the Court of Appeal was concerned with a collective agreement which provided for the crew complement which was to man aircraft working long haul out of Heathrow. It is easy to see how, if the complement were permitted to be a person or two short, this would place greater work and greater responsibility upon those who otherwise had to crew the trip. It affected them, therefore, in a way in which the Court of Appeal was prepared to contemplate impacted upon their working conditions; see paragraphs 38 and following in the judgment of Lady Justice Smith. However, having set out a number of considerations which suggested that such a term would be incorporated, Lady Justice Smith reflected upon whether it was really the intention of the parties it should be so. The purpose of her enquiry was to ask what the parties had agreed, which depended upon ascertaining the objective meaning of the agreements they had reached, as they would be understood by the readership to which the agreement was addressed. She noted (paragraph 62) that if the parties had thought about the issue at the time of negotiation, they would immediately have said that it was not intended that the section of the collective agreement relating to the size of a crew complement could have the effect of enabling an individual or a small group of cabin crew members to bring a flight to a halt by refusing to work under-complement:
"So, if I apply the rule by which a term of uncertain meaning is to be construed, that of asking what, objectively considered in the light of the factual matrix against which the agreement was made, the parties must be taken to have intended the provision to mean, I am driven to the conclusion that they did not mean this term to be individually enforceable. I accept that there are pointers towards individual enforceability, but these are not conclusive. In the end, I think that the true construction of this term is that it was intended as an undertaking by the employer towards its cabin crew employees collectively and was intended partly to protect jobs and partly to protect the crews collectively against excessive demands in terms of work and effort. I think that it was intended to be binding only in honour although it created a danger that if breached industrial action would follow."
Lord Justices Jackson and Ward agreed. I can see some force in Mr Cavanagh's complaints that an agreement as to manning would not necessarily be apt for incorporation.[47]The defendant's position depends heavily upon the force to be given to item number 9 in the minute of the 2009 collective agreement, that which says, if viewed in isolation, that "a conductor should normally be provided unless there is service disruption." It might be said that this falls short of conferring any particular entitlement, rather than simply providing an assurance to a driver. In the context, however, of ensuring strict conditions under which trains are run in a service which (though transport) may be seen as rather different from that involved in a long haul flight, I think it also arguable that that provision, if it appeared in isolation, could amount to a recognition by the company that it would only ask its employees to work DOO services where an agreement had been reached in advance with the employer to do so, and that this was simply a further reflection of that general approach. This does not contradict the view I expressed earlier as to the meaning of the contract: it is directed towards the question of incorporation. It seems to me that the defendant's argument depends upon incorporation. Mr Cavanagh has an argument - which I think is less likely to succeed than it is to fail but nonetheless is of some weight - that it is not to be incorporated. I do not think there is much between the two positions, and therefore, taken together with the interpretation of the collective agreement of 2009 which I think strongly likely to succeed, this is a further indication that thus far there is a serious issue to be tried and the claimant has met the standard of a good arguable case.[48]I hope I will be excused, given the hour, from descending in detail to the law which has been displayed before me. Having come to the view which I have expressed that there is a strong case that there is no restriction upon the employer's entitlement to request a driver to work DOO(P) services, I turn to the question whether the union induced such a breach.[49]There is one example only in the evidence of an actual employee having refused to drive having been instructed to do so on a passenger service. In my view, Mr Hendy is correct in saying that the evidence for the claimant to this effect has been overstated. In Mr Cavanagh’s skeleton argument at paragraphs 58 and 59, he drew attention to the fact that the union contacted its members to inform them "that there is no agreement with ASLEF for 12-car DOO for normal working on GTR, Southern and Gatwick Express". He observed that that was an instruction not to cooperate with the company, and in paragraph 59 said that that was the way it had been interpreted by a driver who had refused on 9 April to take a 12 car train out, saying that he had received a text message from ASLEF to say that he should not drive a train in 12-car DOO(P) formation.[50]Paragraph 108 of Mr Bindon's statement says at sub-paragraph 4 that the driver said he had received a text message stating he should not drive a car in 12-car DOO(P). He then exhibited a copy of the text. The text of the message does not bear out the full force of what is said in the witness statement. It says, as copied before me, on 5 April at 11.08:
"Colleagues, please be aware there is no agreement with ASLEF for 12-car DOO for normal working on GTR, Southern and Gatwick Express."
Not only does this not read as a direct instruction not to drive such a train, but a handwritten statement made by the driver at the time did not assert that he had been told not to take out such a train.[51]It was subsequently, three days later, said by the union that Southern and GEX were "to impose 12-car DOO working, ASLEF to ballot for industrial action, details to follow".[52]Mr Hendy therefore argues, adopting the approach in OBG, that this could not be taken to be an inducement. It is not what it says. It says merely that his is information. It is in fact true.[53]In my view, there is a real argument that that is to take too unrealistic a view of this sort of communication in these circumstances against this background by a union to its members.[54]It will be ultimately for a court other than me to decide whether this was an inducement and, if so, whether it was intended to be, but it followed a circular, number 201 of 2016 of 4 April 2016 to all branches and representatives on GTR, Southern and Gatwick Express from the general secretary, which said simply, and partly in bold:
"Following a report from an executive committee member, members are reminded that there is no agreement with ASLEF for 12-car DOO for normal working on GTR, Southern and Gatwick Express."
[55]It is open, as it seems to me, and entirely realistic, for a court to conclude that if a union says there is no agreement to take a particular action in an environment which is heavily regulated by agreements, that it may be seen, and may be intended by those who send it to be seen by those who receive it, as being persuasion or inducement not to perform such an action if it is requested by management. The obvious questions are why ASLEF needed to tell its members that it had reached no agreement, and what it expected would happen as a result of sending round such emphatic messages to its members when it did. A driver's response to his manager – “there is no agreement to do that” - might in many circumstances amount to arguing he should not to do it, tantamount to a refusal therefore of what would, on the construction of the contract likely to be adopted by a court, be a reasonable instruction.[56]Accordingly, as it seems to me, there is a good arguable case that what ASLEF did was an inducement.[57]It seems to me the Claimant’s case is rather less strong when it comes to whether or not those in the union who sent out the inducement thought that they were actually inviting a breach of contract. I have already recited Mr Whelan's views to the effect he does not ask members to break their contracts, and have no reason from the material before me to think that those views have been expressed disingenuously.[58]He may well have taken (or even take) the view that there is no contractual obligation upon an employee, if asked, to do that which, as it seems to me, there is a strong argument that he is obliged to do, but it does not seem to me so obvious that there is no properly arguable case that he thought in this way as to make me conclude that the case overall which Mr Cavanagh brings on behalf of his clients does not meet the test which I have to address.[59]In summary, it seems to me(a) that there is a strong case that the drivers who work on the Gatwick Express line are, if asked, and subject to any further agreement which may be reached -- I have in mind in particular any agreement which may be reached as a consequence of industrial action if it occurs -- to take out and run trains driver-only operated with 12 cars using the new trains on the Gatwick Express route.(b) It seems to me that there is an argument which goes further in support of that conclusion, that in any event the only matter upon which the defendant can rely to show that that is not the contractual term may not itself be of any contractual force, since it has not been incorporated. .(c) Viewed realistically in context, there is a good arguable case that what ASLEF did was an inducement to its members to break their contracts with the Claimant;(d) There is an arguable case that the union cannot or may not bring itself within the principles expressed in OBG, since there is an arguable case that ASLEF knew that if persuaded to act in accordance with the inducement its members would be breaking their contracts of employment.(e) Overall, there is therefore a good arguable case that liability will be made out.[60]Having concluded that there is therefore an arguable case, I have to ask what is the appropriate order to make on an interim basis. Would damages be an adequate remedy? I am satisfied by the evidence of Mr Bindon that they would not. The consequences to the travelling public, the consequences to the operations of the employer, are such that, as it seems to me, damages would not be an adequate safeguard.[61]As to the balance of convenience, I am satisfied that it lies in favour of granting some injunction. As to this, it may well be sufficient, but I shall hear counsel upon it, that drivers be told that the court has declared that, pending any industrial action and any agreement reached thereafter, they should operate trains on a 12-car DOO(P) basis on those services which have formerly had a 10-car DOO(P) service to Gatwick, or some words to similar effect. I am less attracted, but I will hear counsel upon it, to the term of the injunction which requires the union to take the positive steps identified in the application before me.[62]I have indicated my conclusions. I will retire and allow counsel to talk to each other or to their respective clients before I listen to them on the form of the order which I will then make.