Court rules for unions in strike dispute

Employers will find it harder to obtain court injunctions in the UK to stop industrial action. Rail workers’ trade unions won an important court case in March 2011, concerning technical irregularities in strike ballots. More and more employers, such as BA and Network Rail, have recently been obtaining court injunctions to prevent industrial action, on the grounds that unions had not complied fully with the complex statutory requirements on balloting and notification.

Balloting rules

The Trade Union and Labour Relations (Consolidation) Act 1992 (as amended) provides that, in order to be lawful, industrial action organised by a trade union must be authorised by a secret postal ballot of its relevant members. The union must ballot all members who will be called on to take part in the industrial action, but no other members. A majority of those voting is required to authorise the industrial action. The legislation lays down very detailed and complex technical requirements for the conduct of ballots.

Unions must also give the employer concerned notice of the ballot, its result and the planned industrial action, within set timescales. Again, this area is subject to detailed legislative requirements. For example, the union must include in the notice of a ballot information about the employees that are entitled to vote, including the total numbers of employees concerned and their categories and workplaces. Further, those entitled to vote in the ballot must also be given specified information on the result of the ballot.

Injunctions

Employers faced with the threat of industrial action have increasingly been obtaining court injunctions to prevent the action, on the grounds that the union concerned has not complied fully with the complex statutory requirements on balloting and notification. Employers that have successfully sought injunctions since 2009 include London Underground (rail transport), British Airways, Network Rail (rail infrastructure), EDF Energy Powerlink (rail infrastructure) and Metrobus (bus transport). Injunctions have been granted for infringements such as unions giving an employer inadequate information about the categories of employees entitled to vote in a ballot, or informing an employer about a ballot result later than required.

The Trades Union Congress (TUC) has expressed concern about the succession of these court cases and called for changes to the relevant legislation (UK1010029I). The Unite union unsuccessfully claimed in the Court of Appeal in 2009 that the statutory requirements on ballots are so onerous as to be incompatible with unions’ freedom of association, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.

However, in May 2010, Unite won an appeal against an injunction preventing a strike at British Airways, with the Court of Appeal taking a somewhat more relaxed view of minor infringements of the balloting requirements (see court ruling). This approach was confirmed on 4 March 2011 in a Court of Appeal ruling in the RMT v Serco and ASLEF v London & Birmingham Railway cases.

Court of Appeal ruling

In December 2010–January 2011, the High Court granted interim injunctions to prevent strikes called at London and Birmingham Midland Railway and at Serco (which runs the London Docklands Light Railway) by the train drivers’ union ASLEF and by the National Union of Rail, Maritime and Transport Workers (RMT) respectively. The grounds were that the unions had made procedural errors in their ballots (both of which produced large majorities for industrial action). For example, at Serco, the ballot had been based on slightly out-of-date union membership records.

The Court of Appeal judgment on 4 March 2011 lifted the two injunctions and clarified the extent of the technical obligations on unions with regard to ballots. Building on its ruling in the British Airways case, it confirmed that genuine and accidental ballot errors can be disregarded, if they are immaterial to the result. It opposed applying a ‘standard of perfection’ for holding ballots, which would ‘set traps or hurdles for the union which have no legitimate purpose or function’.

Reactions

Legal experts seem unanimous that the Court of Appeal judgment will make it more difficult for employers to obtain injunctions to prevent strikes where there have been minor irregularities in the balloting process, with courts likely to take a less stringent view in future. The RMT described the ruling as a ‘landmark victory for working people’, which would ‘clear a path for unions in all sectors planning ballots over jobs, pensions and cuts to living standards’.

Some commentators have suggested that the ruling may lead employer organisations to step up calls for changes to the legislation on strikes, notably the introduction of a requirement that, to be lawful, strikes must have the support of 40% of balloted members, as well as a majority of those voting (UK1007039I).

Mark Carley, IRRU/SPIRE Associates

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