The High Court has refused to grant an injunction to stop industrial action based on a trade union allegedly calling on its members to take action before its ballot had closed.

What is the law?

Industrial action called by a trade union must have the support of a ballot to protect the trade union from legal action for inducting its members to breach their contracts of employment. However, the trade union loses this protection if, before a ballot has closed, it has made a ‘prior call’ for its members to take the same industrial action as that in respect of which it was balloting its members. In such circumstances, an employer may apply to the High Court for an injunction to prevent the trade union from calling on its members to take industrial action, even if the ballot result would otherwise give the trade union a mandate to call protected industrial action.

What happened?

BAE, a defence and aerospace company, recognises Unite the Union for collective bargaining in respect of many of its non-managerial employees. In the autumn of 2025, BAE and Unite were in dispute over the 2025 pay award for certain employees at BAE’s Warton and Samlesbury sites.

In response, Unite balloted its members on whether they would support a strike and action short of a strike, with its ballot running from 1 to 22 October 2025. One of the actions short of a strike listed on the ballot was a ban on providing buddying up training to inductees or others. Action short of a strike, if approved by members, was expected to take place between early November 2025 and late April 2026. Both ballots were approved by the members and Unite gave notice to BAE on 22 October 2025 that industrial action would begin two weeks later. 
Among the balloted members were “quality professionals”, whose duties involved checking aircraft for safety and issuing them with approvals for flight and engine ground runs. Without these approvals, the aircraft would be grounded.

On 30 October 2025, BAE applied to the High Court for an injunction to restrain the industrial action. BAE argued that on 10 and/or 14 October 2025, Unite had called on quality professionals not to provide training to executives in connection with its contingency planning for any industrial action. This allegedly resulted in at least one executive not being trained on 13 October 2025 in breach of a contractual requirement to provide training. Unite stated that it had not instructed members not to follow instructions but had asked them to request written justifications for any tasks which were out of the ordinary, so that it could take legal advice.

Given that the ballot included a ban on training certain personnel, BAE argued that Unite’s alleged instruction not to train its executives constituted a ‘prior call’ which justified an injunction to restrain it from inducing BAE’s employees to take industrial action.

What did the High Court decide?

The High Court noted that Unite’s officials were clearly aware of the need to avoid making a ‘prior call’ and that, if they had done so, it would have been due to accident, carelessness or a deliberate decision to covertly issue a prior call in the hope it would not be discovered.

It further noted that the relevant events took place over a period of six days, as part of a fast-moving situation pending the outcome of Unite’s industrial action ballot with a rapid flow and exchange of emails and calls. As such, it rejected a close textual analysis of the documentary evidence.

Against a disputed factual background and conflicting witness evidence, the High Court accepted that:

  • Unite had a reasonable basis for believing that its members had no contractual obligation to train the quality executives;
  • Unite was likely to establish that it had not instructed members to refuse to comply with the training request;
  • Unite had not been reckless as to whether its members were obliged to train the executives; and
  • even if Unite had instructed members to refuse to train executives, that was not the same kind of action as the action in respect of which Unite was balloting its members.

As such, the High Court refused BAE’s application for an injunction.

Implications for employers

This case serves as a useful reminder of the importance of contingency planning in the context of potential industrial action. On the one hand, BAE was keen for its executives to be trained so that they could continue to provide important approvals at a commercially critical time for its business. On the other hand, Unite was keen for its members not to go above and beyond their obligations to provide training for the purpose of minimising the impact of the industrial action that they might soon be taking. As such, it is a useful reminder for employers of the importance of early contingency planning as soon as it appears likely that it might face industrial action. This is particularly the case now that the minimum period of notice of industrial action that a trade union must provide to an employer has recently been shortened from two weeks to 10 days.

More generally, this case illustrates the difficulties for an employer to secure an injunction to prevent industrial action. First, the High Court recognised that trade unions are aware of their legal obligations and so it is relatively unusual for them to leave themselves exposed to be injuncted after having gone through the hassle and expense of balloting their members. Second, the High Court was clear that the weakness of BAE’s evidential case had counted against it. So, whilst injunctive relief is available when the circumstances justify it, employers dealing with new industrial action landscape after the coming into force on 18 February 2026 of many of the reforms contained in the Employment Rights Act 2025 need to plan for the worst when facing potential industrial action.

Read the full judgment here – BAE Systems (Operations) Ltd v Unite the Union.

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