Thames Cleaning and Support Services Ltd v United Voices of the World & Anor, Court of Appeal - Queen's Bench Division, June 02, 2016, [2016] EWHC 1310 (QB)

Resolution Date:June 02, 2016
Issuing Organization:Queen's Bench Division
Actores:Thames Cleaning and Support Services Ltd v United Voices of the World & Anor
 
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Case No: HQ16000342

Neutral Citation Number: [2016] EWHC 1310 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/06/2016

Before :

MR JUSTICE WARBY

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Between :

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Lauren Godfrey (instructed by Clarkson Wright and Jakes) for the Claimant

Giles Powell (instructed under the Direct Public Access scheme) for the Defendant

Hearing date: 31 May 2016

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Judgment

Mr Justice Warby :

The application

  1. The claimant in this action, and the applicant before me, is a cleaning company. Among the premises to which it supplies cleaners is an office building in the City of London at 100 Wood Street, EC2 (``Wood St''). The claimant has a contract with the managing agents of the building, who are known as CBRE. The tenants of Wood St have included JP Morgan Chase, and continue to include Shroeders and other well-known organisations. The first defendant is a trade union (``the union'') to which a number of cleaners belong, including some of those who are or were engaged by the claimants to work at Wood St. The second defendant (``Mr Elia'') is the General Secretary of the union.

  2. The claimant's application is for an order continuing an injunction granted by Garnham J on short and informal notice last Friday, 27th May. That order provides that the defendants must not:-

    ``procure, organise, and/or facilitate a picket at [Wood St] save to the extent the picket complies with (a) section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 [(``TULRA'')] and (b) the Code of Practice on Picketing 1992 [(``the Code'')]''.

  3. The period for which the injunction is now sought is a further 13 weeks. That is the expected duration of industrial action by cleaners, who are members of the union, which is currently under way.

  4. In his skeleton argument for the claimant Mr Godfrey gave notice of an intention to seek in addition certain ``ancillary orders only if, and to the extent, defendants threaten to: (i) enter into 100 Wood Street causing a trespass and/or actionable nuisance in order to intimidate C; and/or (ii) threaten a mass demonstration in support of the picket in Wood Street, which would have the practical effect of inflating the size of the picket.''

    Issues

  5. There is a stark contrast between the parties' rival positions. The claimant asserts that the defendants have threatened to organise picketing which would involve unlawful acts, and that it is probable that they would act unlawfully if not restrained by injunction. Mr Godfrey puts it this way in his skeleton argument:

    ``C's principal concern is to prevent mass picketing at 100 Wood Street including the ``threaten[ed] large and potentially violent picket where members of the public with no involvement in a trade dispute are encouraged to attend''.

  6. The defendants invite me to dismiss the application altogether on the basis that there is no need for any injunction. In his skeleton argument Mr Powell says this:

    ``The defendants submit that C has misunderstood and confused protest, which is lawful and is not picketing (proposed in the email dated 11 May 2016 [C's bundle pp 50-51]), with picketing; and that its application is an attempt to restrain lawful protest, freedom of speech and assembly. The defendants do not and have not proposed to picket unlawfully or to act unlawfully.''

    Facts

  7. The claimant took over the cleaning contract at Wood St in March/April 2016. Mr Godfrey's summary of events thereafter is that, having undertaken to carry out the contract in a different way from before it entered into discussions about changes to working practices. These involved a number of full timers being offered alternative part-time employment. Those who did not accept were to be dismissed for redundancy.

  8. Over the following weeks and months three areas of conflict arose between the claimant and the union: (i) a dispute over the planned redundancies; (ii) complaints about the wages paid by the claimant; these are said to be above the statutory minimum wage at £8.50 per hour, but below the London Living Wage of £9.40; (iii). A dispute over the claimant's recognition of the union, or its failure to do so. The London Living Wage is a non-statutory figure, set by the Living Wage Foundation.

  9. The union balloted its members for a strike. The claimant criticised the procedures adopted for the ballot. At one stage there was a threat to seek an injunction restraining industrial action. However, I am not concerned with that today. The defendant's case is that the industrial action which is presently under way is in furtherance of a trade dispute within the meaning of s 219 of TULRA, and compliant with the statutory requirements and for present purposes the claimant accepts that I should assume this is so.

  10. The claim with which I am concerned is a separate claim, based upon conduct which the claimant describes in its [draft] Particulars of Claim as ``the Threatened Mass Picketing''. The basis for that description lies in the pre-action correspondence.

  11. On May Day a posting appeared on the union's Facebook page in these terms:

    ``In the spirit of International Workers' Day UVW is proud to confirm that as well as continuing to fight for trade union rights and a living wage at Top Shop, the cleaners at the Barbican Centre, the Science Museum and 100 Wood Street have all decided to take official strike action over proposed redundancies, refusal to pay a living wage and refusal to provide occupational sick pay.

    The times are changing.

    The time for justice has come.

    Up the workers!''

  12. On 4 May 2016 Mr Elia emailed Simon Judge of the claimants giving notice of a ``potential trade dispute'' over the proposed redundancies at Wood St. Mr Elia asserted that any dismissal for redundancy would be automatically unfair as a matter of law. He described the proposed redundancies as ``unfair, unlawful and unnecessary'' and gave notice that a trade dispute would ensue in the absence of a satisfactory response. The claimant replied through its solicitors that it ``does not recognise a Trade Union'' and as such would not be entering into negotiation with the union in relation to Wood St. Mr Elia responded at 17:13:

    ``Firstly, UVW were not seeking to negotiate. As such any reference to a negotiation is a red herring.

    Secondly, the presence or absence of a recognition agreement is wholly irrelevant as to whether an employer talks, negotiates or consults with a trade union, all of which are always advisable for the sake of harmonious industrial relations...

    ... Fourthly, you have failed to provide a satisfactory response to our concerns regarding Thames Cleaning's proposed unlawful redundancies, and you are paying below the London Living Wage which currently stands at £9.40 per hour. This failure has led to a trade dispute situation...

    ... We will be balloting our members at 100 Wood Street for industrial action...

    ...I can confirm that UVW remains available for discussions, through the services of ACAS.''

  13. On 11 May 2016 at 18:51 Mr Elia emailed Mr Judge as follows, copying in personnel at Schroders and at two other corporate tenants of Wood St:

    ``Subject: URGENT: Cleaners to strike for a living wage and against unfair dismissals at 100 Wood Street (Notice of ballot for industrial action) ...

    ... On behalf of the cleaners at 100 Wood Street, please find attached for your urgent attention notice of ballot under 226A of the Trade Union and Labour Relations (Consolidation) Act 1992...

    ...We will also be engaging in regular, disruptive and high profile direct actions at 100 Wood Street, in order to raise awareness amongst the many companies that have offices at 100 Wood Street, about Thames Cleaning's unfair, unnecessary and unlawful dismissal of over half the cleaners at 100 Wood Street and Thames Cleaning's refusal to pay the cleaners a wage they can live on, otherwise known as the London Living Wage which is only currently £9.40 per hour.

    I can confirm that UVW remains available for discussions, through the services of ACAS. If you would like to pursue this please contact me directly.

    In the meantime, please peruse the videos in the links below which show a small selection of some of our recent demonstrations against unfair redundancies, trade union victimisation and refusal to pay a living wage, amongst other things.''

  14. The links were to videos posted on YouTube showing, among other things, demonstrations organised by the union and Mr Elia at Topshop and the Barbican centre in London.

  15. On 13 May 2016 the claimant's solicitors replied.

    ``Our client has also passed to us copies of your recent emails to them which you have chosen to copy to their client and the tenants at 100 Wood Street outlining threats of ``regular, disruptive and high profile direct action at 100 Wood Street''. The union's Facebook page also makes similar threats dating from 1st May 2016 which predates any contact with our client when it is stated that ``the cleaners at ...100 Wood Street have all decided to take official strike action over proposed redundancies...'' The union have throughout its communications with our client attempted to deliberately interfere with, intimidate, disrupt and damage our client's relationship with its client at 100 Wood Street and their respective tenants.

    It is our view that the union's threats made to our client go beyond notice of or an intention to hold a lawful picket. Further, the activities of the union outlined above and which pre-date the notice will not have statutory immunity normally granted to trade unions.

    In view of this, should the union proceed with the proposed ballot and/or any strike action, our client will not hesitate to seek an injunction without further notice to you in relation to any industrial action...''

  16. Mr Elia's reply...

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