H.A. O'Neil Ltd v Unite the Union & ors (Approved)

Factual and Procedural Background

Company A, a building-services contractor, sought an interlocutory injunction in the High Court to restrain threatened industrial action by Company B (a trade union) and three Individual Defendants employed by Company A. The intended action, authorised by secret ballot and one-week notice, involved picketing third-party sites where Company A was working.

The underlying dispute concerned payment for the first hour of daily travel time. Company A relied on a 2011 sectoral agreement that had purportedly subsumed that payment into increased hourly rates, and on a later Sectoral Employment Order (“SEO”) that required parties to exhaust a dispute-resolution procedure before striking. The High Court granted the injunction on 23 March 2023. Company B and the Individual Defendants appealed to the Supreme Court. While the appeal was pending, the SEO was quashed in separate proceedings, but the Supreme Court proceeded to rule on the legality of the injunction because of the wider importance of the issues.

Legal Issues Presented

1. Does s. 19(2) of the Industrial Relations Act 1990 bar the grant of an interlocutory injunction once a valid ballot and notice have been proved?
2. Is the protection in s. 19(2) confined to tortious claims, or does it also apply where the employer sues for breach of contract (e.g., breach of a “no-strike” clause)?
3. Can workers rely on s. 19(2) and assert the existence of a “trade dispute” when the contemplated industrial action is allegedly in breach of an agreed dispute-resolution procedure?
4. What standard of proof and evidential burden applies under s. 19(2) for establishing the ballot, notice, and existence of a trade dispute?
5. How do the general principles for interlocutory relief, as reformulated in Merck v Clonmel Healthcare, interact with the statutory limitations in s. 19(2)?

Arguments of the Parties

Plaintiff’s Arguments

• The SEO modified employment contracts so that industrial action was unlawful unless the prescribed dispute-resolution steps were exhausted; therefore s. 19(2) could not protect the Defendants.
• Because Part II of the 1990 Act generally grants immunities only for torts, s. 19(2) should be read as inapplicable to a breach-of-contract claim.
• The existence of a “no-strike” obligation meant there was no “trade dispute”; consequently the ballot was defective and should not count for s. 19(2) purposes.
• In any event, the balance of convenience favoured an injunction because the threatened picketing would inflict irrecoverable commercial and reputational loss.

Defendants’ Arguments

• A compliant secret ballot and statutory notice were proved; under s. 19(2) the Court “shall not” grant an injunction once a fair case of a trade dispute is established.
• s. 19(2) is not confined to tortious causes of action; its text contains no such limitation.
• Even if the SEO were valid, breach of contract does not strip the dispute of its statutory character; workers cannot contract out of the right to claim the statutory protection.
• The SEO had been quashed in other proceedings and, in any event, did not govern this particular dispute.
• The Plaintiff had not met the heightened requirements for interlocutory relief after Merck v Clonmel Healthcare, particularly as damages would be an adequate remedy.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began with s. 19(2) of the Industrial Relations Act 1990. It held that the Defendants bear the onus of proving a compliant ballot and notice on the balance of probabilities, and they met that burden. The Plaintiff, by contrast, could not shift the statutory bar by merely showing an “arguable” flaw in the ballot.

Textually and contextually, s. 19(2) is not limited to tort actions; it withdraws the remedy of an injunction whenever its conditions are satisfied, irrespective of whether the employer sues in contract or tort. The Court rejected the argument that a contractual “no-strike” clause or an agreed dispute-resolution procedure prevents workers from asserting a trade dispute. The statutory definition of “trade dispute” in s. 8 is deliberately broad, and authority (particularly Henchy J. in Becton, Dickinson) confirms that contractual breach does not disqualify a dispute from that status.

Legislative history further supported this conclusion. Earlier statutes (the 1946 Act) provided separate, non-judicial enforcement mechanisms for breaches of Registered Employment Agreements. The 2015 Act, though requiring certain procedures in SEOs, did not expressly curtail the immunities or protections in the 1990 Act. Therefore, Parliament cannot be presumed to have limited s. 19(2) by implication.

Applying the flexible approach mandated by Merck v Clonmel Healthcare, the Court examined:

• Likelihood of trial. Labour injunction cases rarely proceed to full hearing; that reality required a preliminary merits assessment.
• Adequacy of damages. Commercial loss alleged by Company A could be compensated; constitutional rights of assembly, expression, and association weighed heavily against restraining picketing.
• Balance of convenience and proportionality. Given the significant constitutional dimensions and the Plaintiff’s modest prospects on the contractual arguments, the injunction was disproportionate.

Accordingly, the statutory bar in s. 19(2) applied and, even if it had not, the traditional Campus Oil factors (in their post-Merck form) would still have required refusal of injunctive relief.

Holding and Implications

APPEAL ALLOWED – INTERLOCUTORY INJUNCTION SET ASIDE.

Direct Effect: The Defendants are no longer restrained from undertaking the proposed industrial action, subject to ordinary legal constraints.

Broader Implications: The judgment clarifies that s. 19(2) of the Industrial Relations Act 1990 operates irrespective of whether the employer sues in contract or tort; contractual “no-strike” clauses do not, of themselves, disapply the statutory bar. The Court also reaffirmed the need, post-Merck, for judges to assess constitutional rights and proportionality when considering labour injunctions. The ruling thus strengthens the position of unions and workers seeking to rely on balloted industrial action and provides authoritative guidance on the evidential standards and analytical sequence to be followed in future applications.