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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Westminster City Council v Unison [2001] EWCA Civ 443 (21 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/443.html Cite as: [2001] EWCA Civ 443, [2001] Emp LR 1052, [2001] IRLR 524, [2001] ICR 1046, [2001] BLGR 378

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE BRUNNING)

		Royal Courts of Justice Strand London WC2 Wednesday, 21st March 2001

Wednesday, 21st March 2001

1. LORD JUSTICE PILL: This is an application for permission to appeal with appeal to follow if permission granted against a decision of His Honour Judge Brunning, sitting as a deputy High Court judge, as recently as 16th March 2001. The judge granted an injunction to the Westminster City Council ("the City Council") in relation to a proposed strike of its employees called by the present appellants, UNISON. The Court is concerned only with the lawfulness of UNISON's action and not with the merits of the dispute or the proposed strike or other industrial action.
2. Before turning to the substance of the matter, I do mention that the Court was asked yesterday morning to hear the application of the appeal of UNISON at very short notice, today being the day when action by the employees was proposed to begin. Unfortunately, there were defects in the conduct on behalf of UNISON in the way the case came before the Court. Mr Hendy QC, on behalf of UNISON, has made unqualified apology for that and I do not propose to go into the matter in detail. I say only that when urgent action is sought from a court, the parties seeking it must be concerned not only with the skilful preparation of their own case but also show a respect for the function of the court and respect for the needs of the proposed respondent. That respect was not shown in this case. We know that Mr Bear, counsel for the City Council, had extremely short notice of the hearing and short opportunity to prepare his case. He argued it most helpfully and thoroughly and of course he had full knowledge of the arguments at the hearing before the judge which had only taken place only a few days before. The urgency arises partly because the action was proposed to begin today, and to use Mr Hendy's words, "the dispute will be exhausted by 30th of this month", for a reason which will appear.
3. Two issues arise: the first whether the dispute is a trade dispute within the meaning of section 244 of the Act and, secondly, whether the ballot requirements set out in section 226A of the Act have been satisfied by the union (the Trade Union and Labour Relations (Consolidation) Act 1992). The City Council has of course statutory functions, powers and duties, as it does as local housing authority under the Housing Act 1996. In particular it assesses and advises individuals claiming to be homeless and, where appropriate, places them in temporary or permanent accommodation.
4. The relevant functions are performed by what is known as the Assessment and Advice Unit ("the A&A Unit") run by the Council. It handles a very large number of cases, a high volume of work involving hundreds of calls and visits each week, often dealing with individuals or families in situations of great need. The Unit employs about 70 people, 45 of whom were, at the relevant times, members of UNISON. The City Council has intended for some time to transfer the business of the Unit to a private company, WMS Haywards Limited, and that transfer is now imminent and is due to take place on 2nd April 2001.
5. The structure of the Unit appears from document 1A placed before the Court with the statement of Ms Frances Mapstone who is the Acting Assistant Director of Housing (Homelessness and Private Section) of the City Council. There is an A&A manager. Answerable to him are five managers: Service Manager, Service Manager Temporary Accommodation, Service Manager Casework, Service Manager Housing Register & Rehousing, Service Manager Customer Service Centre. Each of those managers has a number of employees for whom he or she is responsible, the number varying from 12 to 18.
6. The dispute arises out of for the process of what is known as externalisation, that is the contracting out to a private company of the relevant function. The members of UNISON, in the A&A unit, wish to remain employees of the City Council. There has been negotiation over a long period of time between the Council and UNISON representatives as to this externalisation. It is said by Mr Bear, who appears on behalf of the City Council, that the externalisation of some of the services has not been opposed by UNISON.
7. Section 219 of the Act under the heading "Protection from Certain Tort Liabilities" provides in subparagraph (1), so far as relevant:

"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 or interferes or induces another person to interfere with its performance..."

8. "Trade dispute" is defined in section 244 of the Act which provides insofar as material in subsection (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;"

9. A dispute about a proposal to transfer an undertaking including its employees from their employment with their present employer the City Council, to employment with a private company is, on the face of it, a trade dispute within that definition, and that much is common ground. The expression "wholly or mainly" in the definition was considered in this Court in Mercury Communications v Scott Garner [1984] ICR 74. May LJ, at page 114F, stated:

"... the words 'which relates wholly or mainly to' mean 'is predominantly about'."

10. That approach is accepted by the parties to this dispute.
11. Mr Hendy QC also refers to the statement of Lord Woolf MR in University College London NHS Trust V UNISON [1999] 1999, at page 31 at paragraph 33, Lord Woolf stated:

"At the same time it could have a more limited objective, namely to alleviate the adverse consequences which it anticipates could flow from the more general policy. That more limited objective can be the reason for taking strike action. That more limited policy can comply with the requirements of section 244".

12. The issue is whether this dispute is predominantly about the change in the identity of the employer or whether, as the City Council submits, it is about public policy issues, the question of externalisation, or the more limited question, which arose in the course of the discussions, about the possible conflict of interest in relation to the functions of the A&A Unit. It is common ground that during the early stages of discussions between the City Council and union representatives the concentration was on one or both of the public policy issues, to which I have referred. Mr Bear submits, and his submissions found favour with the judge, that this dispute was predominantly about those issues of public policy and was not predominantly a dispute about the change of identity of the employers.
13. Mr Bear has referred to the minutes of meetings which occurred on 3rd August, 21st November and 28th November 2000. He draws attention to the fact that what is now said to be the predominant component of the dispute was not the subject of discussion at those meetings. Mr Hendy accepts that until this year the emphasis was indeed on the public policy issues. Reference is made to a fax sent to Mr Beirne, the Acting Branch Secretary of UNISON, by Miss Goyder of the City Council on 30th November 2000, at page 55 of the bundle, which includes the sentence:

"UNISON have confirmed that this arrangement meets their objectives in terms of pension provision."

14. To which Mr Beirne replied by fax "That's fine, thanks."
15. Mr Bear refers at page 55 of the bundle to a report made to the Council by its officers:

"13.3. During discussions with UNISON staff representatives they have been keen to ensure that pensions of transferred staff are protected through the provision of broadly comparable pension schemes by their new employers. UNISON has been notified that all the recommended Providers have bid on the basis of the provision of a broadly comparable pension scheme for all WMS staff transferring. UNISON has confirmed that this arrangement meets their objectives in terms of pension provision. In addition, the City Council will discuss with Providers the option of bulk transfers to their respective pension schemes."

16. Thus, submits Mr Bear, apart from the public policy issues, the one issue which had been the subject of concern in relation to individual employment contracts was by that stage met by the City Council.
17. Mr Hendy refers to the evidence before the judge and also to the documents which reveal negotiations during the present year. There was a meeting of UNISON members on 17th January 2000. Mr Beirne, Assistant Branch Secretary, wrote on the same day to the chief executive of the City Council:

"I write to inform you that at a shop meeting held this morning at Assessment and Advice, 261 Harrow Road, UNISON members voted overwhelmingly to oppose their transfer to WMS Haywards. This is due to take place on 2 April 2001.

Essentially, members consider that the identity of their employer is a term and condition of their contract of employment and they do not consent to that term being changed unilaterally. Thus staff are determined to remain employed directly by the City Council."

18. The letter then goes on to deal with the other issues which had been subject to discussion and states:

"There is also a strong feeling that this privatisation is unnecessary. The current service provided by staff is very good and the risks inherent in privatisation (see the privatisation of housing benefit, personnel, payroll, etc.) outweigh the stated benefits."

19. A decided case was also mentioned to which further reference need not be made.
20. The Chief Executive replied on 19th January:

"Thank you for your letter of 17 January 2001, the contents of which surprised me. There are clearly two substantive issues that you have raised. Firstly the transfer of individuals to the new contractor and secondly your reference to a case R v West District Council ex parte Gerrard.

Turning to the first issue of Transfer of Undertakings (Protection of Employment) Regulations (TUPE), if there is a Transfer of Undertaking (as there will be in this Case), the identity of the individual's employer will be by operation of law not by any unilateral act on the part of Westminster City Council consent to that change."

(I comment only that what Mr Beirne had been concerned with was the position as between the City Council and the employees and he sought to make clear that, as between them, there was no consent to the change by the employees.)

"Obviously an individual cannot be forced to work for an employer if they don't want to. However, there is no option for a member of Staff to be TUPE transferred to insist that Westminster City Council employs. The stark choice is to accept the transfer or resign."

21. Following the reference to the case mentioned:

"In view of the above the proposed transfer of Assessment and Advice to WMS Heywood will take place on 2 April 2001 regardless of opposition raised by the Staff that was subject to TUPE."

22. Two things emerge from that correspondence: first, that the question of the identity of the employer was plainly raised as a point of substance, and secondly, that in its response, no doubt for reasons which appeared good, the Council in no uncertain terms told the employees that they would have to accept the transfer or resign. That was the stark choice that they faced.
23. Mr Bear says that it is surprising that the point raised so starkly in that correspondence had not been raised earlier which, he submits, it was not. He refers also to a document in which the perceived conflict of interest had been raised by the union as recently as 5th February, that is after the exchange of letters just mentioned.
24. In a letter of 25th January, Mr Beirne drew attention to the fact that only a small number of the employees concerned will be working in the private sector. That relates to the point which had been raised about the conflict of interest and it was persisted in by Mr Beirne in a letter of 5th February 2001 to the Director of Housing at page 81. The point is this:

"However in this particular case this is not a sufficient mechanism, as there will be a constant conflict of interest. WMS Haywards is associated with companies that act as landlords and managing agents and are being given responsibility to enforce the criminal law which largely imposes obligations on landlords and their agents. What is at stake here is a question of public confidence in an important and complex enforcement activity.

...

It is not too late to prevent the grave error which privatisation of this service would represent. I therefore ask you to reconsider the position."

25. Thus, submits Mr Bear, as recently as 5th February Mr Beirne is raising the public policy issue in a letter to the Director of Housing.
26. The union sought to have a ballot and the question posed on the "Official Ballot of UNISON Members" is as follows:

"Re: Trade Dispute with Westminster C.C., to persuade the council to retain all relevant staff within its employment, including all matters arising out of and in consequence of the dispute."

27. The words from "including" onwards are not clear to me, and neither are they clear to Mr Hendy, but it is not suggested that their inclusion obscures what is plainly the purpose of the question. It deals with the change of identity of the employer and members are being asked whether they are in favour of persuading the Council to retain all relevant staff within its employment. The suggestion has been made that while the undertaking could be transferred, the staff remain with the City Council and perform their duties on secondment to the private company.
28. Taken alone, it could not be disputed that the main purpose of the ballot was in relation to the identity of the employer. That approach is supported by Mr Beirne's letter of 17th January written following the meeting to which I have referred.
29. Mr Bear did not wish his case to be understood in this way, but it is the only way in which I can understand it. It is that it is in substance a dispute about public policy, but notwithstanding the ballot form, it is being dressed up as a dispute about the identity of employers. That submission found favour with the learned judge. He set out the background, making references to some of the relevant documentation and the substance of his judgment on this issue begins at page 11 H:

"When I began the recitation of the relevant evidence, I had referred to the approach of common sense which May LJ spelled out in the Mercury case. In the course of their submissions, both counsel supported that approach. It is clearly one which has to be carried out in the context of the events unfolding from 1999 onwards.

When I look at all matters that are before me and seek to come to a balanced view of them, what strikes me is the absence of any opposition for the best part of two years to the principle of contracting out. The letter that I quoted from Mr Beirne at the outset on the contrary recorded the support of Union employees for that step, subject to a number of matters being dealt with to their satisfaction. When I come back to look at the common sense of this, it is clear that over that time what was in hand was the subject of, if not daily, then regular considerations by these hard-pressed employees, who were striving, as ever, to do almost the impossible with limited resources. There must have been extensive discussions about the proposals in the real world of the workplace. A good representative, as the correspondence and the other information I have suggests Mr Beirne is, would know exactly what the feelings of his work force were, and what their thinking is; and if there had been any undercurrent, any substantial concern about the principle that members would lose their status as City Council employees it would, I am quite satisfied, have been raised. There is, further, the absence, when I took at Mr Kent's affidavit, as well as Mr Beirne's, of any explanation as to why externalisation became unacceptable. As I say, it cannot have been hidden that it was going to happen and that it was would mean a change of employment. I would expect, looking at matters with common sense, that there would have been an explanation as to why, after this lengthy process, the fundamental change of employment suddenly reared its head. There is none. That I regard as a matter of considerable significance.

Thirdly, I know that a branch meeting was held in January. I know its decision. There is limited information about that. I know not what form the debate took, what arguments were put. I know that six other schemes besides the one subject of dispute here have also been considered over the months and years. They involve Union Members. They involve precisely the same movement from employment with the City Council to the new organisations, and yet in none of those schemes has the point raised here been raised. It is puzzling as to why that is so. The only clue as to why it is raised here are the policy concerns articulated by Mr Beirne in his correspondence of January and early February.

When I come, therefore, to look at the history and development of this matter, the overwhelming impression which is left is that the issue of employment is not the substance of the matter. What makes sense to me, looking at it as the court is required to do, is that this debate is about public policy. I am supported in that conclusion by the fact, as Mr Bear in argument asserted, that no substantial reasons are advanced, which are relative to the interests of the Members in their capacity as employees which might be dealt with by the Council. This is, I therefore conclude, a dispute which is predominantly not about the terms and conditions of employment. I am satisfied that it is not, therefore, a trade dispute and is unlawful."

30. The judge, having referred to some of the relevant documents, did state at page 10C:

"There is nothing further by way of explanation or factual assertion to which in justice I must refer."

31. The judge has used strong terminology in drawing the inference which he has that the predominant feature of the dispute is about public policy. He has referred to the fundamental change of employment suddenly "rearing its head". He used the expression "the only clue" as to why the issue was raised and he states that the "overwhelming impression" he is left with is that the issue of employment is not the substance of the matter.
32. Mr Hendy submits that the judge has ignored important aspects of the evidence and that his approach to the evidence is so defective as to amount to a self- misdirection. The judge has disbelieved evidence which was before him, to some of which I refer, and drawn an inference contrary to the substance of the matter. It is necessary to refer to further documents which are relevant to the issue. I have already referred to the ballot paper which one would normally take as a starting point in the analysis of the nature of the dispute. Secondly, it seems to be wholly unsurprising that whatever general views on policy union members may have, when it comes to the point they are likely to be concerned with their own future and what the transfer of employment involves. I find it quite unsurprising that whatever public policy views with high motives about conflicts of interest may have influenced earlier discussions, when the change is imminent it is their own future and their own future terms of employment which are likely to influence and affect the outlook of employees. The Court is of course concerned with the nature of the dispute between individual employees and the employer and not with any stance taken by UNISON itself save insofar as it reflects the views of employees in dispute.
33. There are clearly significant implications, which emerge from the documents, when employment is transferred to a private company, and they occur notwithstanding the achievements which were made by way of protecting pension position and other matters. I underline that there is no question about the good faith of the City Council in this matter or about the efforts they have made to secure the best terms for their employees.
34. As early as 2nd November 1999, Mr Beirne was concerned with the terms of contract of individual members of the Union. At page 23, referring to a letter of 27th October he said:

"The meeting identified the potential threats to staff's terms and conditions from the proposed privatisations. Whilst it is understood that TUPE will apply at the time of transfer to the A&A service, we are aware that, once in the private sector, employment terms and conditions can easily be changed. And experience indicates that such changes are almost always to the detriment of the employee.

...

After careful discussion and consideration at the shop meeting, UNISON members at A&A decided that they were prepared to commit themselves to achieving a successful transfer provided a reciprocal commitment is given by the City Council. We simply require the Council to guarantee that all staff in the newly tendered service are employed on terms and conditions that shadow the prevailing terms and conditions of directly employed Westminster City Council staff. That is, terms and conditions as agreed nationally which any locally negotiated improvements."

35. It is clear from the minutes headed "Meeting with UNISON on the WMS Assessment and Advice Ballot on 16th February 2001", attended by the Assistant Director of Housing, that points were raised about the possible changes in terms and conditions of employment:

"There was an indication that the contractor wished to change terms and conditions of employment in that:

* Staff in acting up and seconded positions could apply for the vacant positions on a permanent basis after the transfer but these would be on the contractors terms and conditions post the transfer.

* UNISON view was that the staff vacancies could be filled now on Westminster terms and conditions of employment.

* There had been some discussion about 'buying out' employees annual leave entitlement.

Management reaffirmed that the operation of TUPE regulations was that staff would transfer on existing terms and conditions. UNISON accepted this but identified that this did not change the situation intention of WMS Hayward to get staff off their current terms and conditions."

36. The minutes then go on to refer, "additionally", to what might be considered policy matters, namely the whole question of privatisation and the alleged conflict of interests in externalising enforcement work that the Unit undertakes. There was a letter from Mr Beirne to the Chief Executive dated 7th March 2001 stating:

"UNISON therefore requests that the City Council uses its new rights under the law to protect the terms and conditions of all staff for the duration of outsourced contracts. The protection we seek is simply that staff are employed on terms and conditions that mirror the terms and conditions of staff directly employed by the City Council."

37. That this was the subject of discussion is clear from the statement of Mr Nigel Brooke, the Assistant Director of Housing (Landlord Services). In his statement of 12th March he stated at paragraph 5:

"On 14th February we responded by saying that the Council would not protect the position on future employees, and that we would review in March on existing employees. On 14th March, having taken legal advice, we responded by saying that we were unable to give any protection for existing employees (beyond TUPE). UNISON said that other Councils had given such protection. We asked them to send us evidence of such other contracts. However, they never did so that was the last we ever heard on this issue."

38. It is clear from the statement of Mr Beirne, if it is to be believed, that the question of the identity of the employer and the implications of the change of employer was very much in the minds of members. It appears from paragraphs 18 to 21 of the statement which I do not propose to read. He also refers at paragraph 22 under the heading "Political Dispute":

"Ms Mapstone, at paragraph 20 says that Westminster City Council considers that the strike is the product of political or policy differences between it and UNISON. This is wrong. This dispute does relate wholly or mainly to terms and conditions of employment. UNISON disfavours privatisation but it has to live in the real world. The concern here is not concern with UNISON policy but members' demands. As the documents show Westminster City Council have been left in doubt about that and as made clear in the letter of 3rd March from Mr Coulson we have proposed that the transfer of the Unit could proceed with the staff remaining as employees of Westminster City Council. This shows that the dispute is not about a transfer of the undertaking but about the transfer of the staff."

39. Before the Court is also a statement from Mr Richard Kent who is a Rehousing Officer in the Unit. The judge cited a part of his statement in his judgment. It is necessary to read from paragraphs 3 and 4 of Mr Kent's statement:

"I am a member of UNISON.... I have been aware of UNISON's opposition to the externalisation of the service ever since this was an issue. I concur with that opposition. This is because externalisation would mean my employment moving outside the Council. This, I believe, would result in my employment position worsening over time. My colleagues and I have a real fear that our terms and conditions could suffer some time in the future if our new employer were to restructure, for example. Further, my pension would no longer reside in the local government scheme. It would also mean my losing continuity of employment if I sought and got another job with another local authority, with all that that would entail. Finally, it would also mean my moving to a smaller employer with more limited opportunities for career development. For these and other reasons, I wish my employment to remain with the Council.

When we realised that the Council were determined to push ahead with the externalisation, my local branch of UNISON organised a meeting to establish whether we wished to hold a ballot to take industrial action in opposition to our employment being transferred. I was on leave at the time and could not attend that meeting but I was told that there was strong support for a ballot. I have been to two subsequent meetings with my colleagues over this issue and we are all clear that the dispute concerns our strong wish to remain employees of Westminster City Council. I have no doubt that this trade dispute concerns the issue of the identity of my employer."

40. In my judgment, on the evidence which was before the judge, the judge has, with respect, so disregarded parts of it that this Court is entitled to reassess the position and make up its own mind as to whether the dispute is a trade dispute. What the judge did was not only to draw an inference contrary to assertions by witnesses, such as the assertion of Mr Kent (to which I have just referred) that he had no doubts this this dispute concerning the issue of the identity of the employer but also contemporaneous documents before the Court.
41. I do not doubt that a judge, even on occasions when witnesses have not been required for cross-examination, can in all the circumstances disregard or disbelieve evidence and draw inferences to the contrary. If that is done, reasoning is however required and in this case there are not only assertions but substantial contemporaneous documentary evidence of the importance attached to the change in employer such that, if the judge was to disbelieve and draw the inference he did, fuller reasoning was required.
42. In my judgment the learned judge has not approached the evidence comprehensively in this case and I am unable to accept the conclusion he reached. It is not simply a question of attaching weight to evidence. His approach has disregarded entirely important parts of it. I understand the difficulties in which any tribunal is placed when having to decide an issue such as the present one. However, I reject the suggestion that this was in substance a high-minded dispute about public policy and conflicts of interest masquerading as a dispute about terms of employment.
43. In my judgment the only conclusion which can properly be reached on the evidence is that this was a trade dispute. I have regard to the contents of the ballot paper, the statements of Mr Beirne and Mr Kent, the likelihood, it seems to me, when it comes to the point, of workers being concerned with the very matters which were raised in the recent discussions and the other contemporaneous documents to which I have referred.
44. I am of course reluctant to disagree with the judge on an issue such as this. This Court is however in as good a position as the judge to consider the relevant evidence. That notwithstanding, this Court is reluctant to interfere with the exercise of a discretion. However, I have come to the conclusion that the inferences drawn by the judge were ones which, on a proper consideration of the evidence, he was not entitled to make.
45. The second issue relates to the alleged failure of UNISON to comply with the requirements of section 226A of the Act when organising their ballot. Section 226A provides insofar as material:

"(1) The trade union must take such steps as are reasonably necessary to ensure that [times are given for service of documents]... is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.

(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing--

...

(c) 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) will be entitled to vote in the ballot.

(3A) These rules apply for the purposes of paragraph (c) of subsection (2) --

(a) if the union possesses information as to the number, category or work-place of the employees concerned, a notice must contain that information (at least);

(b) if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply with paragraph (c) of subsection (2)."

46. Subsection (3A) and subsection (2)(c) in its present form came into force on 18th September 2000. Mr Bear draws attention to the fact that employers' knowledge of relevant matters is not sufficient. There is still a duty upon the union if the ballot is to be lawful for the requirements of section 226A to be met. He further submits that the information supplied does not conform with the requirement to give the information possessed by the union as to the "category" of the employees concerned.
47. The notice given by the union was one by letter of 12th February 2001. I read only the relevant parts:

"The dispute is the Assessment and Advice Unit Dispute and it concerns the intention of the City Council to cease being the employer of those staff employed within the Assessment and Advice Unit and for WMS Haywoods to become the employer on the 2 April 2001. The objective of the dispute is to persuade the Council to retain all relevant staff within its employment. The relevant staff are those in the Assessment and Advice Unit....

The descriptions of employees who will be entitled to vote in the industrial action ballot will be all of those staff who pay their subscriptions via the DOCAS system. They work in the Advice and Assessment Office at Harrow Road and they can be described as A&A workers. I believe there are 45 in total who will be balloted."

48. DOCAS means Deduction Of Contributions At Source.
49. The judge's findings begin at page 16 of the judgment:

"Mr Bear, on the other hand, says that this organisation, with important work that I have described, has many parts parts to its management structure. There are a number of teams. The structure itself is set out graphically at page 1B of the exhibits to Miss Mapstone's affidavit. That shows the layout of the paper representation. Something of that kind could easily and should have been done to comply with the obligation which the statute sets out to enable the employer to make plans to minimise disruption essential, it is said, in a service like this, which deals with the large number of people to whom I have referred and also to enable the employer to put any arguments that may be necessary to assist those balloted to come to their own considered decision on a matter as important as this.

The requirements, said Mr Bear, is to identify a grade or teams, as well as numbers. In my judgment, his submission is right and I accept it. I am satisfied that this notice, in the very generalised way that it was drafted, did not and does not comply with 226A."

50. Mr Bear relies upon the recent decision of this Court in the National Union of Rail, Maritime & Transport Workers v London Underground Ltd and Others, unreported transcript 16th February 2001. The situation in that case was, in my judgment, very different from the present case. The facts are set out at paragraphs 4 and 5 of the judgment of Robert Walker LJ, with whom the other members of the court agreed.

"4. According to an affidavit sworn since the hearing by Mr Andrew Bindon. LUL's Head of Employment Relations and Partnership, the approximate numbers of employees employed by the six claimant companies are 11,200, 2,000, 1,600, 1,800, 60 and 200 respectively, making a total of a little under 17,000, of whom a little over 40 per cent are RMT members. The employees, including RMT members, are spread between a large number of different workplaces and between several different categories of work. Mr Bindon has deposed that

'RMT has members in a variety of different categories of our workforce, eg stations and revenue control, train staff, signal operations, and administrative, technical and operational managers. Additionally, LUL has over 40 different workplaces for station staff, over 20 different train depots, as well as separate locations for signalling operations.

5. LUL has what is known as a check-off arrangement with ASLEF, under which LUL will make a direct deduction from the salary of an employee who is a member of ASLEF and who wishes his union dues to be collected in this way. That means that LUL has up-to-date information about ASLEF members and their workplaces and work categories. There has been no check-off arrangement with RMT since 1995 and so, as Mr Bindon has deposed, LUL is not able to identify the number, category and workplace of its employees who are RMT members. There is a high turnover of staff in station grades."

51. It was in that context that Robert Walker LJ, in his conclusions, made the statements to which the Court has been referred. Paragraph 47:

"If the amendments are approached in that way it becomes clear that the judge was right to interpret 'information as to the number, category or workplace of the employees concerned' in such a way as to provide the employers with information which was useful to them. The usefulness of the information is seriously reduced and if an employer is simply told '5,000 employees, all grades, all workplaces' without the additional information which could be conveyed by a grid or spreadsheet, with different categories (as appropriate) listed at the side and different workplaces listed at the top, and the appropriate numbers filled in."

52. The differences between the facts are plain from those references. What Mr Bear relies on is the statement of Robert Walker LJ at paragraph 48 that "the union is obliged to include it [that is information], as an irreducible statutory minimum, in the notice."
53. Robert Walker LJ considered the background to the amendments to section 226A which changed the amount of information to be supplied but stated in paragraph 46:

"But there was not any significant change in the legislative policy or in the purpose for which information was to be given to the employer. The change was a change of means, not of objective, in order to meet the concerns of those members of a union who objected to being included in a list of names."

54. The legislative purpose was "to enable an employer to know which part or parts of its workforce were being invited to take industrial action" (paragraph 45).
55. The word "category" was not defined by Robert Walker LJ in the London Underground case nor was it necessary for him to do so. Equally it is not necessary for this Court to attempt comprehensive definition.
56. In my judgment it is clear that the requirement was met upon the facts of the case and that the requirement as to "category" was sufficiently met in the information provided. The number of staff involved was only 45. They were identified as A&A workers. The relevant staff are said to be those in the Assessment and Advice Unit. While not identified by name, information was provided by reference to the DOCAS system, by which the individual identities could easily be ascertained by the employers. It is not suggested that different professions or trades are involved within the A&A unit.
57. The submission is that the breakdown which appears in document 1A (to which I referred earlier in this judgment) should have been given. In particular, submits Mr Bear, a distinction should have been drawn between managers and other staff and that the requirement as to category was not met in the absence of such a distinction. It is also submitted that the various sub-units of the Unit should in this letter have been identified to meet the requirement as to category. I do not accept that those submissions. In my judgment, given the information supplied, the requirement as to category, was sufficiently met in the notice. I bear in mind the purpose of the requirement in section 226A as stated by Robert Walker LJ, and with which I agree.
58. Not only in my judgement is there no point of substance in this part of the City Council's submission but no defect of form or of a technical nature has been established. The requirements of section 226A have been met by the union.
59. It is for those reasons that at the conclusion of submissions yesterday the court indicated that the injunction imposed by the judge was discharged, the application for permission to appeal granted and the appeal allowed to the extent that the interlocutory injunction is discharged. My reasons for supporting that course are those I have now given.
60. LORD JUSTICE MANTELL: I agree. The issue for the members as proposed in the ballot paper is certainly capable of being considered a trade dispute. On any sensible construction I would say "and nothing else". Even so, I would have been most reluctant to interfere with the decision of the learned judge but for the fact, as it seems to me, he failed to address the direct evidence from Mr Beirne and Mr Kent which, for his conclusion to stand, it was necessary for him not only to address but also to reject.
61. As to the second issue raised in this appeal, I have nothing to add to what has been said by my Lord, Pill LJ.
62. LORD JUSTICE BUXTON: I also agree. By section 204(1)(b) of the 1992 Act, as interpreted by this Court in the Mercury case, the question in this appeal is whether the dispute was predominantly about the termination of employment with Westminster of the workers in the Assessment and Advice section. As Dillon LJ put it, at page 123 H of the appeal in Mercury:

"For that purpose it is the state of mind of the members of the union that the court has to consider."

63. Deciding what that state of mind was is a question of fact for the judge. Prima facie the best evidence of that state of mind, and of what the dispute was really about, is to be found in the evidence of the members themselves who started and are taking part in the dispute. That evidence is likely to be dispositive unless it can be positively shown that it is unreliable, the course the witnesses are seeking to mislead the court or are misleading themselves.
64. That evidence was as follows. Firstly, paragraphs 3 and 4 of the statement of Mr Kent, which my Lord has read, which set out not only his own view of the nature of the dispute but also reported the views expressed by his colleagues, both at the meeting on 17th January and subsequently. Secondly, the statement of Mr Beirne who says in paragraph 18 of his statement:

"In essence UNISON members do not wish Westminster City Council to transfer them to WMS Haywoods Ltd. Westminster City Council intend to do so. There is therefore a dispute. The dispute concerns a central aspect of the members employment: the identity of their employer."

65. In paragraph 10 of that same statement, Mr Beirne refers to the meeting of 17th January as follows:

"On 17th January 2001 there was a meeting of the UNISON members employed in the A&A unit. They were still unhappy about being transferred from Westminster to the new employer. Accordingly I sent a letter to the Chief Executive stating the wish of staff to remain in direct employment of the Claimant."

66. That letter was Mr Beirne's letter of 17th of January, which my Lord has read. It was replied to by the Council's letter of 19th January, which has also been read by my Lord.
67. It is clear from those exchanges that the issue that was joined between the workers and the employer was a simple question: Who should be the employer of those workers after the TUPE transfer? It was that issue that was clearly reflected in the question in the ballot paper.
68. The judge recited much of that evidence but he pointed out that the concern about the identity of the employer had not been seriously raised by UNISON before the January branch meeting. What the judge saw as a new hostility to the transfer of employment was ascribed by him to the strongly expressed policy concerns stated by Mr Beirne as to the whole idea of privatising the A&A operation. The judge concluded that it must have been those views that prevailed at, or at least immediately after, the meeting of 17th January, not least because the A&A unit was the only part of the housing operation to raise the point about the identity of the employer. The judge therefore concluded that the general concerns as to privatisation, what he called "public policy", and not the issue of the identity of the employer, was therefore the substance of the dispute, and on that basis that dispute could not be a trade dispute.
69. The immediate difficulty about that analysis is that although UNISON in general, and Mr Beirne in particular, made no bones about their opposition to the privatisation of the A&A unit, on no view was the threat of the strike used to further that opposition. It was made clear in the correspondence to which I have referred that the immediate issue between the parties (the issue which led to the ballot) was the wish of the employees to continue to be employed by Westminster. That was what they wanted; that was what Westminster either could not or would not concede to them.
70. That that was the aim of the employees who were in dispute was indeed recognised by Westminster itself. In the third witness statement of Miss Frances Mapstone on behalf of Westminster, she describes how she considered after the ballot had taken place whether anything could be done, as it were, to improve the situation, and had discussions with managers within the Council as to whether, as she puts it, "anything could be done to try to settle our dispute with UNISON". Then she says this in paragraph 3:

"The unanimous view was that there was little to be gained in such discussions because the only issue related to the identity of the UNISON Members' employer."

71. If the employees had succeeded in their demand, that would have made no difference to the privatisation operation. Indeed, the whole demand that Westminster should continue to be the employer was made in the context of an acceptance that the service would indeed be privatised.
72. I am therefore driven to the view that in the context of the whole evidence the judge's conclusion that the dispute was about the political or policy views ventilated by Mr Beirne in correspondence cannot sensibly be maintained. That is because it attributes the employees a reason for the strike that on the evidence had no factual or logical connection with that strike because the evidence was overwhelming that the decision to strike was not taken in the hope or expectation of changing the privatisation policy, but in hope or expectation, or in protest, about the identity of the employer within that privatisation process.
73. There is however no need to go that far in order for this appeal to succeed. I have said that the best evidence of the reasons for the dispute is the views of those who create that dispute. There is clear evidence here, not only in the views of Mr Kent and Mr Beirne but also in their reports of the views of their workmates. The judge's conclusion effectively entails a rejection of that evidence. His judgment may not go so far as to imply that those witnesses were misleading the court, but his conclusions have to come close to that, given in particular that they, and conspicuously Mr Beirne, when they made those statements were well aware when they made those statements of the issue and of the importance of a correct account being given of their and their colleagues' motivation.
74. It is of course open to the judge to reject such evidence, even where it has not been subject to cross-examination. But before doing so he must demonstrate that he has properly taken that evidence into account and give reasons why he rejects it. In my judgement, neither of those operations was performed. The judge accordingly has not demonstrated that he has addressed what is highly relevant evidence. Rather, he appears to assume that the workers, particularly at the meeting on 17th January, must have been swayed by Mr Beirne's political or policy arguments about the theory of privatisation, when he had specific evidence given at some length that that was not the case, and he gives no reasonable account as to why he rejects that latter evidence.
75. To make this criticism is not to fall into the error mentioned by Dillon LJ in the Mercury case at page 124D of the appeal of relying on the ipse dixit of the trade union witness. Rather it is to say that where, as Dillon LJ equally said, the issue is the state of mind of the employees, then substantial evidence about that state of mind given by those employees is clearly relevant. If it is rejected without a properly reasoned account of why it has been rejected, then on normal principles the court can and will conclude that proper weight has not been given to it.
76. It was of course the case in Mercury itself that the evidence of the trade union witness was not acted upon. That step was only taken after prolonged consideration of its implications and the reasons for it a consideration particularly to be found in the judgment of that case of May LJ.
77. The judge not having properly exercised his judgemental function, this Court must itself revert that to that question. For the reasons that I have given and those given by Pill LJ, I have no doubt at all that the evidence strongly indicates that the subject matter of this dispute was genuinely and in practical reality as stated in the ballot paper. The dispute was therefore a trade dispute.
78. As to the matter of the notice, the genesis of the present form of section 226A of the Act was explained in the judgment of Robert Walker LJ in this Court in the London Underground case in paragraphs 35 to 37 of his judgment, some considerable part of which my Lord has set out. One of the reasons for the present form of the section, as Robert Walker LJ recognised, was to avoid what might otherwise have been an obligation upon a union to give actual lists of names of the persons who are going to take industrial action. The reason why notification is required is to enable, amongst other things, the employer to make plans in relation to proposed action. I will assume that that is directed at his ability to cope with the practical difficulties caused to him if the action takes place. For that purpose, he needs to know who is going to be on strike and who is not. What the union has to tell him, if it knows, includes the "categories" of employees affected by the action. That in my judgement is a very broad word and not to be either exclusively or narrowly defined. It means no more than a reference to the general type of workers. In this case, by means of the reference to the DOCAS deduction system, the employer actually had, or was given access to, a nominal role of those who were going to be taking the action; something that was more than the statute in its revised form intended.
79. It is wholly artificial in those circumstances to say that the union should have given details of job descriptions and status of employees of the sort to which my Lord referred. It is much more reliable from an employer's point of view if, having been given the names, he himself, with his superior knowledge of the way in which his operation works, decides into what categories and into what sections those persons fall. When that point was put to Mr Bear in argument he was constrained to agree that that was indeed as a matter of common sense, but that approach, he said, was prevented by the wording of the statute. We should look with great caution at such an argument about a statute such as this, which is a statute directed to industrial relations, designed to enable workers and employers to conduct their affairs in a sensible and efficient way.
80. I have no doubt that section (3A)(a) was formulated against the background of strike calls of what might be called colloquially the "everyone out" variety, exercised over a large and diverse organisation. That was clearly the view of Robert Walker LJ in the passage that he includes at the start of paragraph 47 of his judgment in the London Underground case. Within that requirement that the information should be more informative than the type of notification that Robert Walker LJ referred to, it was entirely satisfactory and sufficient to describe the category of workers as being workers in the A&A section.
81. But if I am wrong about that, the fact that the notice in this case provided, by a reference easily available to the employer, an actual nominal roll more than amply fulfilled any obligation placed upon the union by this statute. I would not want to be thought to be laying down any rule that goes outside the facts of this case, save to say that the obligations of the union must be assessed in the circumstances of the particular strike and in a common sense way of the light of the policy of the legislation. In this case that objective was achieved and I would therefore allow the appeal on that ground also.
(Appeal allowed; costs to appellants here and below) (Order does not form part of approved Judgment)