The Court of Appeal last week handed down its decision in two important industrial action cases - ASLEF v London Midland and RMT v Serco Docklands.
In both cases the High Court had granted injunctions to the employers to prevent industrial action on the grounds that the notices given by the trade unions were defective; and that the explanations they gave to describe the steps they had taken were inadequate.
The Court of Appeal has allowed the unions’ appeals and discharged the injunctions. It held, for the first time, that the international recognition and context of the right to strike is relevant to the interpretation of the UK legislation, restating the position adopted in P v NASUWT (2003) that the law should be given a “likely and workable construction”.
The employers have been given permission to appeal to the Supreme Court.
The ASLEF case
The Court of Appeal said that although ASLEF had allowed two members to vote in a strike ballot who were not entitled to vote, the small “accidental failures” provision in the legislation should apply. It also confirmed that the “de minimis” exception applied to ballot and strike notices.
It found that the High Court judge was wrong when he held that ASLEF was under an obligation to obtain further information or set up systems to improve its record keeping. The information given by the union in the ballot notification was as accurate as was reasonably practicable given the information in its possession at the material time.
The Court also rejected the employer’s argument that the explanation on the ballot and strike notices was not detailed enough, concluding that the explanation, “although brief, was sufficient to satisfy the statute and that the judge misdirected himself as to the specificity required.”
It should be borne in mind, the Court said, that union officials are not required to use undue precision or accuracy in their use of language when providing an explanation. The description of the process undertaken would have to be positively and materially misleading before the explanation could be said to fall short of the statutory requirement.
RMT v Serco Docklands
The employers in this case had also obtained an injunction in the High Court, on the basis that the explanation was inadequate and that the job categories in the RMT notices were imprecise. The Court of Appeal found that the explanation was adequate, and disagreed with SERCO that the purpose of the explanation was to enable it to decide whether to take legal proceedings.
The Court found there was no statutory obligation requiring the union to use any particular category of jobs and therefore no obligation on the union to adopt the categories used for pay purposes. It accepted that the approach adopted by the union was perfectly sensible - which was to notify the employer of the jobs identified by the workers themselves and complied with the statutory obligation.
Both unions were represented by members of Thompsons’ Trade Union Law Group: Victoria Phillips representing ASLEF and Richard Arthur representing RMT.