Interim Declaration halts RCN Industrial Action
Andrew Burns KC and John Platts-Mills represented the Secretary of State for Health and Social Care in successfully securing an interim declaration that strike action threatened by the Royal College of Nursing on 2 May 2023 is unlawful.
The case turned on the correct interpretation of the period of validity of a ballot pursuant to section 234 TULRCA 1992 and the extent of a union’s democratic mandate to call for industrial action. Linden J regarded it as clear and settled law that a 6 month period beginning on 2 November 2022 ended on 1 May 2023. The Court held that the RCN was therefore calling industrial action a day after the end of the 6 month period specified in the legislation and that this was no minor or technical point. The Judge observed that much can happen in that period in the world of industrial relations.
The RCN chose not to appear at the hearing and the Judge noted that no breach of Article 11 ECHR was alleged. Linden J held that the balance of convenience lay in favour of granting the relief sought. In addition to the merits of the legal position (to be considered under section s.221(2) TULRCA 1992), the Court placed weight on the impact on NHS users and the value to RCN members of having a clear and authoritative statement as to the lawfulness of the RCN’s industrial action. The Court made clear that it did not regard the breach, a single day of unprotected strike action, as minor.
The judgment of Linden J also confirmed the High Court’s jurisdiction to make an interim declaration in appropriate industrial action cases applying the same legal test as with interim injunctions. Interim declarations may be made in favour of a claimant:
- that does not have a present cause of action against the defendant; and
- is not a party to the employment contracts which may be breached as a result of the union’s inducement to take industrial action.
Relying on the principles in Rolls Royce plc v Unite the Union [2010] 1 WLR 318 and Secretary of State for Education v National Union of Teachers [2016] IRLR 512 the careful judgment of Linden J presents a helpful template for the approach to be taken by the Court in deciding whether to grant interim declaration pursuant to CPR 25.1(1)(b) in the context of industrial relations.
Linden J also held that costs should not be reserved in a case where there was a high degree of unreasonableness by the trade union in failing to ‘grasp the nettle’ once it had been made aware of the breach. He ordered the RCN to pay the Secretary of State’s costs in any event.
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