The normal procedure for obtaining an interim injunction is by motion in the Chancery Division of the High Court. Interim injunctions are dealt with in the Civil Procedure Rules, under Parts 23 and 25 (and their respective Practice Directions).
You should first request an undertaking from the union not to engage in industrial action pending a full trial. If no such undertaking is forthcoming, you must normally give the union three clear working days’ notice of your intent to seek an injunction and the hearing should be inter partes (i.e. both parties to the proceedings should be present before the court).
The first step to prevent strike action by workers is to identify any technical flaws there may be in the ballot process, or any breaches of the notice requirements that have occurred. The legal requirements for industrial action are notoriously complex, so an error somewhere along the way is not uncommon – although the error needs to be reasonably serious for a judge to grant an injunction to stop the strike.
You should not delay unnecessarily in seeking an injunction, as such a delay may give a court grounds to refuse the injunction. Legal advice on obtaining an injunction should be sought as soon as you suspect that the union has breached a notice or ballot requirement. You do not have to wait for the strike notice to be issued to apply for an injunction; breach of a technical requirement is sufficient.
If the union refuses to give appropriate undertakings, you must complete a Claim Form and an Application Notice
The hearing for the injunction application will be before a judge. This can happen very quickly. The same week as the application is not uncommon, and in really urgent cases the injunction application can be heard even faster. Because the union only needs to give seven days’ notice of strike action, a short timescale is common and there may not be much time to take legal advice. It is expected that you should give three days’ notice of the injunction application to the union, but the court will reduce the notice requirement when necessary.
Under section 221 of the Trade Union and Labour Relations (Consolidation) Act 1992, the judge will have regard to the underlying merits of the claim, which in practice involves considering the likelihood that the union would be able to establish a trade dispute defence under section 219.
The judge will also consider where the balance of convenience lies. This requires the court to ask itself whether damages would provide an adequate remedy for the wronged party if its decision regarding the grant of an injunction later proves to be incorrect. In other words, would the union be adequately compensated by an award of damages if it later transpires that they were in the right and that an injunction should not have been granted? As a condition of getting the interim injunction, the court may require you to provide financial evidence that you can meet the union’s legal costs if – at a full trial – the strike is held to be lawful.
One factor that may be taken into account in weighing up the balance of convenience is the effect the industrial action may have on the public. This will often favour the granting of an injunction on account of serious consequences for public safety/convenience if the strike is due to commence in a peak or critical period.
The judgment at the hearing will normally contain an order for the successful party’s costs in the case. Therefore, if you succeed at trial you will be awarded your costs of the trial, which the union will have to pay. However, if the union succeeds at trial, the reverse will be the case.
If the injunction is granted, there are strict requirements for drawing up a formal court order (which is the employer’s responsibility) and serving it on the union and other interested parties.
If you think you need an injunction to stop a planned strike from going ahead, contact us now for advice.