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Session 2002 - 03
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Judgments - In re P (a minor by his mother and litigation friend) (Appellant)


SESSION 2002-03
[2003] UKHL 8
on appeal from: [2001] EWCA Civ 652




In re P (a minor by his mother and litigation friend) (Appellant)



The Appellate Committee comprised:

  Lord Bingham of Cornhill

  Lord Hoffmann

  Lord Hobhouse of Woodborough

  Lord Scott of Foscote

Lord Walker of Gestingthorpe




In re P (FC) (a minor by his mother and litigation friend) (Appellant)

[2003] UKHL 8


My Lords,

    1. I would dismiss this appeal for the reasons given by my noble and learned friend Lord Hoffmann, whose opinion I have had the advantage of reading in draft and whose summary of the facts and the relevant legislation I gratefully adopt and need not repeat.

    2. Since the Trade Disputes Act 1906, trade unions and their officials have enjoyed a measure of immunity from actions against them by employers based on the tort of inducing breaches of contract by employees. But the immunity has never been, and is not now, unqualified. Under the law as it now stands, immunity is enjoyed only if the inducement is an act done in contemplation or furtherance of a trade dispute (Trade Union and Labour Relations (Consolidation) Act 1992, section 219) and only if the breach induced has the support of a properly conducted ballot (1992 Act, sections 226-234). This appeal raises issues concerning both these qualifications.

    3. The first issue turns on the definition of a trade dispute in section 244(1) of the 1992 Act as meaning (so far as relevant) "a dispute between workers and their employers which relates wholly or mainly to … (a) terms and conditions of employment …". It is plain that most disputes between employers and employees which lead to strike action or industrial action short of a strike fall squarely within this definition however it is construed. One might instance disputes about rates of pay; ancillary benefits such as paid holidays, sick pay or pensions; working hours; overtime; rostering and shift patterns; and so on. In such situations, the employers or the employees (or their representatives) are seeking a change in some aspect of the employment relationship between them, whether strictly contractual or not, which the other party is resisting, and the action is taken to put pressure on the other party to accede. In such a case, if the ordinary processes of negotiation and collective bargaining break down, the inducement of breaches of contract (save in excepted employments, and subject to the balloting requirements) is not unlawful. So much is agreed.

    4. But Mr Giffin, for the appellant P, contended that the statutory definition of trade dispute covers nothing other than a dispute about terms and conditions of employment, giving that expression the broad meaning favoured by Lord Denning MR in British Broadcasting Corporation v Hearn [1977] 1 WLR 1004 at 1010; [1977] ICR 685 at 692 and approved by the House in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 227, 233-234. I was for a time attracted by this argument, which was skilfully deployed and appeared to reflect the language of the statute. But I am persuaded that such a construction would be too narrow and would deny protection to genuine, employment-related disputes between employers and employees which have in the past been thought to be protected and ought in fairness to be so. Suppose, for example, an employer introduced a new machine or a new working schedule, as the employer was in principle entitled to do, but which his employees resisted on the ground that the machine was potentially dangerous or the new working schedule too onerous. There could be no doubt of the employer's duty to take reasonable care not to expose his employees to danger or to excessive stress, and it would accordingly be artificial to regard such a dispute as one about the terms and conditions of their employment, even on a broad construction of that expression. It would in truth be a dispute about the job the employees were required to do, a matter going to the very heart of the employment relationship. I would accordingly read the statutory definition as covering a genuine dispute between employees and their employer relating wholly or mainly to the job the employees are employed to do or the terms and conditions on which they are employed to do it. If this test is applied to the facts of the present case, as summarised by my noble and learned friend, it is plain that the dispute between the teaching staff and the governing body as their employers related directly to the job the teachers were required to do and were unwilling to do, which was to teach P.

    5. The crux of the second issue, relating to the ballot, is whether the ballot was invalidated (and the trade union's entitlement to immunity thereby lost) because the union failed to treat two of its members at the school, of whose existence it learned after ballot papers had been sent out but before the conclusion of the balloting process, as persons entitled to vote. At first blush, one would expect the union's unintentional failure, which did not affect the result of the ballot, to be exonerated under section 232B. But section 232A is not one of the provisions listed in section 232B(2), which refers only to sections 227(1), 230(2) and 230(2A), with the result that a breach of section 232A cannot be excused under section 232B.

    6. It has been common ground between the parties throughout that the reference to section 230(2A) in section 232B makes no sense. Morison J inferred, reasonably enough, that the reference to section 230(2A) in section 232B was intended to be a reference to section 232A, since when spoken both sound the same (judgment, paragraph 25). The Court of Appeal ([2001] ICR 1241) saw the force of this point (judgment of Waller LJ, paragraph 59) but invited further argument, as a result of which it became clear (and was accepted by both sides) that the reference in section 232B(2) should have been, not to section 230(2A), but to section 230(2B). Thus the House has the unenviable task, as did the courts below, of attempting to construe this complicated series of provisions with knowledge that they contain at least one blatant error.

    7. In the present case, the number of union members at the school was relatively small and it would not have been unduly onerous for the union both to establish with accuracy who was entitled to vote and also to ensure they received ballot papers. But these statutory provisions would apply equally to industrial action to be undertaken by thousands or tens of thousands. It would be absurd if an immaterial and accidental failure to send a ballot paper to a single member were to invalidate the ballot, so as to deprive the union of immunity, and this contingency is provided for by sections 230(2) and 232B. But it would be equally absurd if an immaterial and accidental failure to establish with accuracy who was entitled to vote were to invalidate the ballot so as to deprive the union of immunity. It is inconceivable that Parliament intended these 1999 amendments to the 1992 Act to have that result. The House must attempt to give the provisions a likely and workable construction. In my opinion, the construction advanced by my noble and learned friend achieves that result, and I also would adopt it. I would however hope, an error on the face of the statute having been exposed, that remedial legislative action may be taken.


My Lords,

    8. The appellant was a pupil at a voluntary aided school in inner London. He is subject to an order prohibiting disclosure of his identity and I shall call him P. The teachers found him disruptive in class and violent and abusive in the playground. On 6 June 2000 the headmaster directed that he should be permanently "excluded", i e expelled, from the school. He appealed to the governors. On 30 June 2000 they directed that he be reinstated. So the headmaster instructed the teachers to take him back into their classrooms.

    9. P went back to school and returned again after the summer holidays. At the end of the new academic year he was due to take his GCSEs. But, after further incidents of disruption in the autumn term, some of the teachers complained to their union, the National Association of School Masters/ Union of Women Teachers ("NASUWT"). They said that they should not be required to go on teaching him.

    10. On 6 November 2000 the NASUWT gave notice to the governors, as the teachers' employers, that they intended to ballot their members at the school over whether they should strike or take industrial action short of a strike in furtherance of their objection to having to teach P. The giving of such notice is the opening shot in the series of steps which a union must take before it can lawfully call upon its members to take industrial action: see section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992.

    11. On 14 November 2000 the union head office sent out ballot papers to 35 members. In fact there were 32 members teaching at the school but two had recently joined from other schools and the union had not been notified of their change of employment. The union's representative at the school told head office some time before 16 November that two members had been left out but by then the ballot papers had been distributed. The closing date for returning them to head office was the first post on 22 November.

    12. The result of the ballot was that 26 members voted in favour of industrial action, described as not accepting "the unreasonable direction of the head teacher, acting under the instructions of the Governing Body, made in accordance with the Teachers' Pay and Conditions Document, to teach a certain pupil." None voted against.

    13. The Teachers' Pay and Conditions Document contains the statutory conditions of employment of school teachers in the public sector. They are given effect by statutory instrument made by the Secretary of State pursuant to section 2 of the School Teachers' Pay and Conditions Act 1991. In November 2000 the conditions in force were those annexed to the Education (School Teachers' Pay and Conditions)(No. 3) Order 2000 (SI 2000/2321), which came into force on 1 September 2000.

    14. The professional duties of teachers (other than head teachers) are set out in paras 56-59 of the Document. Para 56 says in general terms that a teacher shall carry out his professional duties "under the reasonable direction of the head teacher". Para 57 says that he shall perform "in accordance with any directions which may reasonably be given to him by the head teacher…such particular duties as may reasonably be assigned to him." His professional duties are described in para 58 and they include (58.1.2) "teaching…the pupils assigned to him" and (58.7) "maintaining good order and discipline among the pupils."

    15. If, therefore, it was reasonable for the head teacher to direct the teachers to teach P, their industrial action in refusing to do so would have been a breach of their conditions of employment.

    16. After holding the ballot, the union wrote on 24 November to all its members at the school, including the two who had not received ballot papers, instructing them to take industrial action from 1 December 2000. After that date the teachers refused to teach P in their classes. The head teacher arranged for him to sit in a separate room under the supervision of a supply teacher and do work which the other teachers had set for him. There is a dispute over whether this arrangement was better or worse for his educational progress.

    17. On 19 March 2001 P commenced an action against the NASUWT pursuant to section 235A of the 1992 Act. This gives a statutory cause of action to an individual who claims that a trade union

    "(1)(a)…has done, or is likely to do, an unlawful act to induce any person to take part…in industrial action, and

    (b) an effect, or a likely effect, of the industrial action is or will be to…(ii) reduce the quality of…services supplied to the individual making the claim"

    Subsection (2) says that for the purposes of the section, inducing a person to take part in industrial action is unlawful if it is "actionable in tort by any one or more persons." The remedy available under section 235A is an injunction requiring the union to call off the industrial action.

    18. The action was tried by Morison J on the basis of written witness statements without cross-examination. There was, as I have said, a dispute over whether the new regime under which P was taught did in fact reduce the quality of services with which he was supplied but the judge did not find it necessary to decide the point. Nor did he decide whether or not the direction of the headmaster requiring the teachers to teach P was reasonable or not. If it was unreasonable, the teachers would not have been in breach of their conditions of employment and the industrial action would for that reason not have been unlawful. On the other hand, from the headmaster's point of view it must have been reasonable for him to give effect to the directions of the governors. At any rate, the judge was willing to assume in favour of P that the industrial action was in breach of contract and that it reduced the quality of teaching which he received.

    19. On those assumptions, the case turned upon whether the industrial action was protected by section 219 of the 1992 Act:

    "(1)  An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only -

    (a)  that it induces another person to break a contract…

    (4)  [Subsection (1) has] effect subject to…section 226 (requirement of ballot before action by trade union)…"

    20. This section gives rise to two issues. The first is whether the industrial action was "in contemplation or furtherance of a trade dispute". The second is whether the statutory requirements for a ballot were complied with. The judge and the Court of Appeal decided both issues in favour of the union. P appeals to your Lordships' House. Since the decision of the Court of Appeal he has taken his GCSEs and left the school. But your Lordships have heard the appeal because it raises a point of general public importance.

    21. First, the trade dispute issue. A "trade dispute" is elaborately defined in section 244(1). The relevant parts of the definition are:

    "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;

    (c)  allocation of work or the duties of employment between workers or groups of workers."

    22. The union argued that the dispute related to (1) their terms and conditions of employment (having to comply with the head teacher's direction to teach P), (2) the physical conditions in which they were required to work (with a disruptive person physically present in the classroom) and (3) the allocation of work between teachers (allocating P to union members).

    23. Morison J found for the union on (1) but rejected (2) and (3). The Court of Appeal, in a judgment given by Waller LJ, agreed with the judge on (1) and (3) but expressed no view on (2).

    24. In my opinion this was plainly a dispute over terms and conditions of employment, which I regard as a composite phrase chosen to avoid arguments over whether something should properly be described as a "term" or "condition" of employment. It is sufficient that it should be one or the other. Furthermore, the use of such a composite expression shows that it was intended to be given a broad meaning: see Roskill LJ in British Broadcasting Corporation v Hearn [1977] 1WLR 1004, 1015.

    25. In the present case, it seems to me that the dispute was about the contractual obligation of the teachers to teach P. It could be characterised as a dispute over whether there was such a contractual obligation: the union, as we have seen, contended that the head teacher's direction was unreasonable. Alternatively it could be characterised as a dispute over whether there should be such a contractual obligation. It does not seem to me profitable to try to analyse it one way or the other. The dispute arose because the head teacher said that the teachers were obliged to teach P and they said that they were not willing to do so. That seems to me a dispute which does not merely "relate to" but is about their terms and conditions of employment.

    26. Mr Giffin, who appeared for P, submitted that "terms and conditions" of employment" meant the rules which governed the employment relationship. They need not be written out in the contract of employment. In Hearn's case Lord Denning MR said, at p 1010, that

    "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."

    27. But whether the rules are expressly agreed or implied from custom and practice, Mr Giffin says that they must be rules. The nature of a rule, he said, is that it is a normative statement at some level of generality. In the present case, there was a rule that teachers should comply with the directions of the headmaster. A dispute over whether they should teach P was not a dispute about the rule but about the application of the rule. It might possibly have been formulated as a dispute about terms and conditions of employment if the union had claimed that the rule should be changed to provide that "teachers should comply with the directions of the headmaster (except that they should not be required to teach P)." But the union never said that this was what they wanted.

    28. My Lords, I do not think that Parliament could have intended the immunities conferred upon trade unions in industrial disputes to turn upon such fine distinctions. It is in my opinion impossible in this context to formulate a coherent distinction between a rule and the application of the rule to particular cases. A dispute about what the workers are obliged to do or how the employer is obliged to remunerate them, at any level of generality or particularity, is about terms and conditions of employment.

    29. The main authority upon which Mr Giffin relied for his proposition was the actual decision of the Court of Appeal in Hearn's case, which was subsequently approved by this House in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191. In Hearn's case, union members working for the BBC threatened to refuse to transmit its television signal to a satellite over the Indian Ocean during the Cup Final because the satellite broadcast would be receivable in, among many other countries, South Africa. The refusal was pursuant to a union policy of opposing apartheid and on the ground that, as Mr Peter Hain said in a letter of 22 April 1977 to the Director-General of the BBC, "the screening of the Cup Final will give considerable satisfaction to the sports loving white population." See [1977] 1 WLR 1004, 1008.

    30. The Court of Appeal granted an interlocutory injunction restraining the industrial action on the ground that it was not in furtherance of a trade dispute. They gave brief unreserved judgments. Lord Denning MR said that the threat of industrial action was "coercive interference and nothing more". It had nothing to do with terms and conditions of employment. It did not become a trade dispute merely because the workers were threatening to break their contracts. The work involved in transmitting the broadcasts was not what the dispute was about. Roskill and Scarman LJJ agreed.

    31. The decision was, if I may respectfully say so, correct because the dispute did not relate to anything which the workers were called upon to do. They would have had to do exactly the same things if South Africa had not been among the countries from which the satellite broadcast was receivable. Unlike the teachers in this case, who objected to having to teach P, the BBC workers had no complaint about any aspect of their work. The objection was simply that one result of their work would be to give pleasure in South Africa.

    32. I can find nothing in the case which supports a distinction between a rule and a particular application of the rule. Mr Giffin relied upon the following observations of Lord Denning MR, at p 1011:

    "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 to be put in, or a condition of that kind to be understood.' If the BBC refused to put in such a condition, or refused to negotiate about it, that might be a trade dispute."

    33. Mr Giffin says that this shows that a trade dispute must be about a rule. But in my opinion Lord Denning's remarks were intended to suggest a way in which the concept of a trade dispute might be extended to include disputes over matters which did not concern what the workers had to do or how the employer had to remunerate them. It was not intended to prevent disputes which were over such matters from being trade disputes unless they were formulated in terms of rules. In Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366, 392 Lord Cross of Chelsea cautioned against taking Lord Denning's tentative observations too far:

    "A trade union cannot turn a dispute which in reality has no connection with terms and conditions of employment into a dispute connected with terms and conditions of employment by insisting that the employer inserts appropriate terms into the contracts of employment into which he enters."

    34. The point does not seem to have surfaced in subsequent cases and your Lordships may therefore well leave it there. Mr Giffin draws attention to the fact that the scope of the protection for industrial action was narrowed after Hearn's case. But the only relevant change is that a trade dispute must "relate wholly or mainly" to terms and conditions of employment and must not merely be "connected" with them: Mercury Communications Ltd v Scott-Garner [1984] Ch 37, 75. But in my opinion the narrower requirement is entirely satisfied. To say that the dispute was related to terms and conditions of employment is, if anything, inadequate. Terms and conditions of employment are what the dispute was about. It is therefore unnecessary to say anything about the other phrases in the definition of a trade dispute on which the union placed reliance.

    35. The other point concerns the validity of the ballot. This depends upon an examination of some complicated provisions in the 1992 Act:

    "226.  (1) An act done by a trade union to induce a person to take part…in industrial action…is not protected unless the industrial action has the support of a ballot…

    (2) Industrial action shall be regarded as having the support of a ballot only if?

    (a)  the union has held a ballot in respect of the action?

    (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'…

    (bb)  section 232A does not prevent the industrial action from being regarded as having the support of the ballot…

    227(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…in the industrial action in question, and to no others.

    230(2)   …[S]o 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.

    232A.  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 when the ballot was held,

    (b)  it was reasonable at that time for the trade union to believe he would be induced 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…in the industrial action.

    232B.  (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 result 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(2B)."

    36. While the statutory provisions may be complicated, Mr Giffin's argument is simple. By section 226(2)(bb), industrial action does not have the support of a ballot if there has not been compliance with section 232A. That section says that it will not have that support if the specified conditions apply in the case of any person. Mr Giffin says that those conditions do apply in respect of the two who did not receive ballot papers: they were members of the union at the time the ballot was held, it was reasonable at that time for the union to believe that they would be induced to take part in industrial action, they were not accorded entitlement to vote in the ballot and they were in fact induced to take part in the industrial action. It is true that the omission to accord them entitlement to vote was accidental in the sense that they were not intentionally denied a right to vote; there was simply an omission to send them ballot papers because they were not recorded as being employed at that school. And their votes would have made no difference to the result. But Mr Giffin says that section 232A is not one of the sections to which the small accidental failures exception in section 232B applies. Section 232A says expressly that failure to comply in respect of any person prevents the action from having the support of a ballot.