RMT v SERCO (conjoined with ASLEF v London Midland)

Before taking industrial action, unions have to issue a notice of ballot giving (among other things) the total number of employees involved as well as an explanation as to how the figures were arrived at. In RMT v SERCO (conjoined with ASLEF v London Midland), the Court of Appeal said that there was no statutory obligation on unions to use any particular category of jobs and therefore no obligation to adopt the categories used for pay purposes.

The union instructed Thompsons to act on its members’ behalf.

Basic facts

After negotiations broke down, the union provided Serco with the required ballot notice providing details of the number of members in the different job categories and work places whom it was proposing to ballot for industrial action. It also provided an explanation of how it had arrived at those figures, saying that they had been “audited and updated”.

The union then sent the notice of industrial action on 13 January 2011 which contained similar lists and figures to those it had given previously. The statutory explanation of how the figures were arrived at was also virtually identical, except that the words "audited and” had been omitted.

Serco applied for an injunction on the grounds that the explanation given by the union was inadequate and that the job categories used in the notices were too imprecise.

High Court decision

And the High Court judge agreed. He granted the injunction, saying that:

  • the statutory explanation was inadequate and too generic as it failed to show what had been done, when and by whom. This left the company not knowing whether it could rely on the figures provided by the union. 
  • the ballot notice was inaccurate because it claimed that the union had carried out an audit of the figures, but that was not true. “The representation was that something more than systematic updating had occurred, but it had not. This was a material error vitiating the ballot”.

Court of Appeal decision

The Court of Appeal, however, said that the purpose of the notice provisions was not to help employers decide whether to take legal proceedings or not.

In any event “the information which the judge found ought to have been given –who did what and when - would in truth have done little to comfort the employer as to the reliability of the raw data the company were given”.

As for the job categories, 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.

The Court said that the approach adopted by the union was “perfectly sensible and did not infringe its statutory duty” in that it “notified the employer of the jobs identified by the workers themselves. Whatever difficulties that might cause an employer in marginal cases, the Court was satisfied that it complied with the statutory obligation”.

Nor were unions obliged to respond to an employer’s request for an explanation if the figures they provided in earlier ballot notices were very different. The Court accepted that it might be wise for them to do so, but it was not required by law.

It therefore allowed the appeal and discharged the injunction.