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Following the High Court judgment of 27th April in Secretary of State for Health and Social Care v Royal College of Nursing in favour of the Secretary of State, I have provided the following update to my earlier blog post containing some reflections on the reasoning behind the judgment.
The Royal College of Nursing (“the RCN”) has served notice on National Health Service employers in England that its members (nurses, midwives, health care assistants and nursing students) will take strike action from 8 pm on Sunday 30th April until 8pm on Tuesday 2nd May 2023. On the 21st April 2023, it was reported that the Secretary of State for Health had indicated an intention to apply for an injunction to prevent this strike on the basis that it is unlawful – an argument disputed by the RCN The argument that the NS Employers requested that the Government make is twofold: that the strike on 2nd May is unlawful; and therefore so is the strike in its entirety. The Government does not, however, appear to be pursuing this second line of argument.
The first line of argument turns entirely on the interpretation of section 234(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992, regarding the period after which industrial action taken following a lawfully-conducted ballot of trade union members ceases to be lawful. This provision states that the action will no longer be lawful “at the end of the period, beginning with the date of the ballot, of six months”. Because this provision has not, in its current form (it came into force in March 2017) been the subject of judicial interpretation, it is necessary to consider how the language that it deploys has been interpreted in the context of other legislative provisions in order to obtain any guidance as to how the Government’s application in the RCN case might be determined by a court.
The “date of the ballot” in the case of the RCN dispute was 2nd November 2022. The ballot closed at midday on that day: however, this is of no consequence because, as was held by the Court of Appeal in the context of an earlier version of section 234 (R.J.B. Mining (U.K.) Ltd v National Union of Mineworkers (1995)  I.R.L.R. 556), if legislation prescribing a time limit makes no provision for parts of days, these are ignored in the computation of that time limit (558 per Butler-Sloss L.J ). What, then, is “the end of the period beginning with [2nd November 2022]” of six months? In the case of the RCN dispute, the Government believe it to be 23.59 on Monday 1st May, while according to the RCN it is 23.59 on Tuesday 2nd May 2023.
The solution is in the definition of the term “beginning with”. The Court of Appeal has held, after an exhaustive consideration of case law on the subject, that “Where, …the period within which the act is to be done is expressed to be a period beginning with a specified day, then…the legislature….has shown a clear intention that the specified day must be included in the period” (Zoan v Rouamba  1 W.L.R. 1509, 1516 per Chadwick L.J (my emphasis)).
In a case cited by the Court of Appeal in Zoan v Rouamba as an example of this approach (Trow v. Ind Coope (West Midlands) Ltd.  2 Q.B. 899), the legislation provided that “a writ … is valid in the first instance for 12 months beginning with the date of its issue”(Rules of the Supreme Court Order 6 Rule 8 (1)). The appellants’ writ had been issued on 10th September 1965, and it was served on 10th September 1966. It was set aside for not being served on time, on the basis that the 12-month period expired on the 9th September 1966, that being the end of 12 months “beginning with” the 10th September 1965.
Unfortunately for the RCN, this line of authority would seem to defeat any argument that any strike action on 2nd May 2023 has the support of a ballot. As the ballot ended on 2nd November 2022, the end of six months “beginning with” that date cannot be understood, following the Court of Appeal’s interpretation of that phrase, to be any later than 23.59 on Monday 1st May. Although the RCN state that “legal precedent indicates our mandate lasts to midnight on 2 May”, it is not (to me, at least) clear what this refers to: an article in the Daily Mail claims that the RCN are relying upon “a precedent set by a mining dispute in 1995”: however, the authority that this presumably refers to (R.J.B. v NUM) is, if anything, authority in support of the Government’s case, so it may be that something has got lost in translation.
It falls, then, to be considered whether this has the effect of rendering the strike unlawful in its entirety. Any such argument to this effect turns upon whether the RCN has failed to comply with the requirements of s234A regarding the giving of notice to take industrial action. The specific provision in issue in the RCN case is the requirement that a notice in a case involving discontinuous industrial action must specify “the intended dates for any of the affected employees to take part in the action”(Section 234A(2)(b)(ii)).
The requirements imposed by s234A, including the details of the categories of employees taking strike action, and the numbers of persons included in the ballot, are onerous in nature, and have been the subject of applications for injunctions by employers to restrain the taking of industrial action on many occasions. Indeed, it was said of the requirements of s234A that they “underline the function of the law on industrial action ballots in assisting employers to limit the impact of any industrial action. This is a far cry from the ostensible objective of the original 1984 legislation of promoting democracy in trade unions”. It is clear from the statements made by the Government (“Strike action with no national exemptions agreed, including for emergency and cancer care, will… put patient safety at risk”) and NHS employers (“…the NHS is also clear that we have responsibilities to our staff in terms of the legality of any actions they are taking in connection to their union membership, and most importantly to our patients for their safety and care”) on this subject, that their application for an injunction is premised on the basis that the RCN has failed to provide the employers with this “assistance”.
However, following the amendments to the legislation in March 2017 that introduced section 234A in its current form, doubt has been cast upon whether any such obligation exists. In British Airways Plc v British Airline Pilots’ Association  E.W.C.A. Civ 1663. it was argued that an injunction ought to be granted to restrain the taking of industrial action on the basis that the ballot paper issued by the union contained insufficient information to enable the employer “to make plans and bring information to the attention of those of his employees who it is reasonable for the union to believe (at the time when the steps to comply with that paragraph are taken) will be entitled to vote in the ballot”, as was required by the version of s226A(2) (c) in force between 2000 and 2005 – language which was held to have “spelled out” the “legislative purpose […] which has always been inherent in s226A and s234A (London Underground Ltd and Others v National Union of Rail, Maritime and Transport Workers  I.C.R. 647, paragraph 48 per Robert Walker L.J (cited in British Airways Plc v British Airline Pilots’ Association  EWHC 2302 at first instance paragraph 51 by Elisabeth Laing J, quoting from the argument of J. Cavanagh Q.C, counsel for the Claimant).
It was held, however, that the substitution of this language from s226A(2)(c) for an instruction to provide “such information as will enable the employer readily to deduce” (my emphasis)the numbers and categories of affected employees was not a matter of semantics only: “the deliberate deletion of the ‘making plans’ wording” meant that “this purpose cannot be regarded as the measure by which a union is required to determine what information is to be given in the ballot notice. It is no longer the yardstick by which the content of the notification obligation is to be judged”(British Airways Plc v British Airline Pilots’ Association  E.W.C.A. Civ, paragraph 58 per Simler LJ). An equivalent legislative substitution of similar phrasing was made in respect of s234A, subsection (3)(a) of which (in force from 2000 to 2005) made reference to the purpose of enabling the employer to “make plans” – however, this was substituted for the “readily to deduce” wording at the same time as the change to s226A. Reference was made in British Airways v British Airline Pilots’ Association to the more exacting requirements of s234A than s226A in respect of the provision to the employer of notice to take strike action– however, this was in the context that a ballot that failed to provide the sort of detail expected of a notice to employers in respect of intended strike action was not necessarily deficient. This case, therefore, is authority – particularly with reference to the statement made at first instance by Elisabeth Laing J, and not disputed by the Court of Appeal, that the two provisions should be “read as a whole” (British Airways Plc v British Airline Pilots’ Association  EWHC 2302 paragraph 70) for the proposition that the duty to help the employer to “make plans” is no longer the dominant purpose of the s234A notice.
Accordingly, considerable doubt can be cast upon whether the specification in the notice given by the RCN. of the April – May 2023 strike as ending on a day later than the latest day that the union can lawfully take action provides a basis for the notice, and therefore the strike, to be declared unlawful, if the dominant purpose of the provision is not to enable NHS Employers to “make plans”. There is no provision in s234A to the effect that an error of the type made by the RCN. renders the ballot in its entirety unlawful. The only sanction intimated by the section for a failure in respect of dates is that alluded to by subsection (5) that a strike on a date not specified would not have the protection of a ballot. Also, the requirement is only to notify the employer of the “intended dates” (s234A(3)(b)(ii)) – there is no requirement that the intended dates be dates on which the union can lawfully take strike action, nor is there a sanction for intending to take unlawful strike action.
As a consequence, it is submitted that adopting a literal approach to the construction of s234A(3)(b), NHS employers’ interpretation of the provision is erroneous, and the Government are right not to pursue the argument that the illegality of the RCN strike on Tuesday 2nd May renders unlawful their taking strike action on Sunday 30th April to Monday 1st May. Although, upon this reading of s234A(3)(b), the RCN can lawfully take strike action on those days, it is likely that an injunction will be granted to require the strike action to be called off before midnight on Monday 1st May.
Following a hearing on Thursday 27th April, Linden J granted an injunction with the effect that the planned RCN strike on Tuesday 2nd May was ruled unlawful, although the wider point as to the legality of the strike as a whole does not appear to have been pursued.
The RCN ultimately did not contest the Government’s application in open court, but filed a witness statement in which reliance is placed upon the statement in Paragraph 9 of the Explanatory Notes to the Trade Union Act 2016 (which introduced s234 in its current form) that “the members’ agreement to a union’s proposed industrial action will automatically expire six months after the date of the ballot”
This introduces further confusion into the interpretation of s234, as it was held in Zoan v Rouamba that, where a time limit in legislation is expressed as starting “after” a date, that date is not included in the computation of time. Adopting such an approach to the interpretation of s234, the 2nd May strike would be lawful – however, the section itself is not so worded, and the Explanatory Notes themselves state that they “do not form part of the Act and have not been endorsed by Parliament”. This error in interpretation has cost the RCN dearly, although given the contradiction between the statute and the Explanatory Notes, counsel for the Government (Andrew Burns KC) seems to have been overly harsh in describing the RCN’s reading of the legislation as “incompetent”.
The RCN has stated that, while the Government has “won the legal battle”, the outcome will leave their members “angered but not crushed”, and “may even make them more determined to vote in next month’s reballot for a further six months of strike action”. However, it is doubtful the judgment will have instilled much faith in the union’s leadership, particularly following the judge’s order that the RCN displayed “a high degree of unreasonableness” by refusing to attend the hearing and should pay £35,000 of the Government’s £47,885 costs.
Ross Fletcher is a Senior Lecturer in Law at Northumbria University. His research interests include tort law, trade union law, and legal education.
(Suggested citation: Ross Fletcher, ‘The Legality of the Royal College of Nursing April – May 2023 Strike,’ UK Labour Law Blog, 27 April 2023, available at https://uklabourlawblog.com/)