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London Underground Limited v RMT, IDS Brief 636
A delay between strike action in July 1998 and a resumption of action in December 1998 led the High Court to issue an injunction restraining industrial action on London Underground.
The original ballot had been in May 1998, followed by action in June and July. There was then extensive negotiation. The union sought guarantees which were not given.
The High Court agreed with the employer that a gap of five months was too long and that the protection of the original ballot was exhausted. The Court said that the nature of the dispute had also changed as the union was now seeking to obtain the best possible deal for all employees who transferred to new private sector employers and this had not been the original objective of the dispute.
This would depend on the facts of the case and circumstances of the case, but the Court went on to make a point of more general concern, picking up on the approach taken by the Court of Appeal in the case of University College London Hospital v Unison.
The Court found against RMT on this issue, saying that the action on the Underground - like that at University College Hospital - did not have legal protection because the primary focus of the assurances the union was seeking from London Underground related to what would happen to the workers who transferred to new employers.
There is an apparent trend of decisions that a dispute about terms and conditions which will apply following a TUPE transfer is not a trade dispute as it concerns terms and conditions with a future employer. This is not only objectionable on policy grounds, it is legally questionable, not least because the TUPE Regulations operate so that following the transfer the new employer is effectively treated as though it had always been the employer.