23 Sep 2016

We look at Thames Cleaning and Support Services Ltd v United Voices of the World and another [2016] EWHC 1310, an interesting High Court decision in which an employer sought an injunction requiring a union to organise a picket only insofar as it was in accordance with the Code of Practice on Picketing. The employer failed in its application for an injunction in those terms but obtained an alternative injunction, which set an 'exclusion zone' around the premises from which it operated.

We are seeing increasing union activity in some sectors and, as illustrated by the facts of this case, industrial action can affect employers who do not themselves have unionised workforces and who are not the direct employer of the employees concerned.

Background

From a trade union's perspective, picketing can form an important part of a trade dispute in respect of which it is taking industrial action. Picketing involves a small group of employees gathering outside an employer's workplace and, for example, seeking to persuade other employees to join a strike rather than attend work.

Like other aspects of industrial action (such as strikes), picketing could involve the employees acting unlawfully, such as committing trespass or causing a nuisance. However, union officials and employees have immunity from being sued in respect of any such unlawful acts if they can show that the employees and any trade union officials involved are acting in furtherance of a trade dispute and if the purpose of the picket is "only peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working."

There is a detailed Code of Practice on what counts as peaceful picketing and, amongst other matters, this includes:

  • The picketers should not use threatening, abusive or insulting words or behaviour, or disorderly behaviour within the sight or hearing of any person…[who is]…likely to be caused harassment, alarm or distress by such conduct; and
  • Typically, the number of picketers at any exit or entrance to a building should not exceed six and should often be fewer.

Facts

This case involved a trade dispute between a cleaning company and a union. Some of the company's employees were members of the union.

Thames Cleaning had taken over a contract to provide cleaning services for an office block and it proposed some changes to working arrangements, as well as some potential redundancies. The United Voices of the World union (UVW) became involved in the dispute. UVW balloted its members for industrial action over: the proposed redundancies; a fight for its members to be paid the London Living Wage; and an issue over company sick pay.

The members voted to take industrial action and, in email correspondence with Thames Cleaning, UVW stated the following: "We will also be engaging in regular, disruptive and high profile direct actions at [the premises], in order to raise awareness amongst the many companies that have offices at [the premises]…".

The email also contained links to YouTube clips of noisy and potentially disruptive protests by UVW members outside other employers' premises. The offices that Thames Cleaning operated at had a number of high profile corporate tenants, three of whom were copied in to the email.

High Court decision

Thames Cleaning was concerned by the threat to engage in "regular, disruptive and high profile direct actions" and the potential impact this would have on the employees who worked from the offices and its relationships with their employers. It therefore applied for an injunction, the intention of which was that UVW would only be entitled to organise a picket at the offices if it was in accordance with the relevant provision of the Trade Union and Labour Relations (Consolidation) Act 1992 and the Code of Practice on Picketing.

That injunction was granted at an initial hearing but a fuller hearing then took place to decide whether it should be maintained for a further 13 week period requested by Thames Cleaning.

UVW contended that the injunction was an attempt to restrain its members' rights to protest and was therefore an unjustifiable restriction on its members' human right to freedom of expression under Article 10 of the European Convention on Human Rights. The High Court had to consider whether there were grounds for granting an injunction and, if so, whether one could be granted in terms that were not an unjustifiable interference with freedom of speech.

First, the Court had to decide whether UVW's members' 'direct action' was likely to give rise to unlawful acts. The judge viewed the YouTube clips of other UVW protests and concluded that there was a significant possibility that, if the protests went ahead, they could give rise to intimidation and harassment that was potentially unlawful.

However, the judge also concluded that an injunction in the terms sought by Thames Cleaning did not work. It sought to restrain the employees and UVW officials who would be involved in the picket from acting unlawfully but there was no evidence that these picketers intended to do anything other than picket lawfully and peacefully. The potential concern was not with the picketers but with other direct action by UVW members.

The judge therefore granted an alternative formulation of the injunction that set up an exclusion zone of 10 metres around the office block. This exclusion zone was intended to allow employees of the companies based in the offices to be able to attend work without intimidation from UVW.

Comment

The Court considered that the definition of picketing was vague and that, because the Code of Practice is not law, it could not grant an injunction requiring the union to only picket 'lawfully'. However, this case does provide a useful example of a potential creative remedy available to employers to protect themselves and their employees from wider protest if there is a possibility it could be unlawful in nature.

This case may be of particular interest to commercial landlords, property management companies and outsourced service providers. Its facts illustrate the potential impact that trade disputes in an outsourced service provider can have on its relationships with other businesses. The case also shows a potential remedy that such providers can use to mitigate that impact.

The Trade Union Act 2016 includes various provisions relating to picketing but it is not yet in force. When it is implemented, the Code of Practice on Picketing will be revised to set out the rights and responsibilities of parties involved in or affected by industrial disputes, including in relation to the use of social media and protests linked to industrial disputes.