Richard Arthur, Thompsons National Coordinator for Trade Union Law, looks at three key obligations under industrial action law and how they have been interpreted by the courts over the last year.
Most legal challenges mounted by employers to industrial action over the last year stem from three basic requirements under the current law.
These state that unions must:
• allow all (and only) those members who are to be called to take part in industrial action to vote in the ballot
• adhere to strict rules concerning the description of affected members in the Notice of Ballot and Notice of Action, and
• inform members of the result of the ballot “as soon as is reasonably practicable” after holding it.
Entitlement to vote in the ballot
Section 227 of the Trade Union and Labour Relations (Consolidation) Act (TULCRA) 1992 states that: “Entitlement to vote in the ballot must be accorded equally to all members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part in the action... and to no others.”
The “small accidental failures” saving, in section 232B TULRCA, is potentially available in relation to a defect in compliance, provided that the failure is accidental and is on a scale that is unlikely to affect the result of the ballot.
In the case of British Airways -v- Unite, the union had allowed about 700 members to vote who would have left BA before the industrial action started.
The High Court said that the union could not reasonably have believed that those members would be “induced to take part in the action” and that it was therefore in breach of section 227.
It could not fall back on the “small accidental failures” saving, because it had not been sufficiently proactive in trying to find out which of its members would have left their jobs by the time the industrial action started.
Information in the Notice of Ballot and Notice of Action
Section 226A(2)(c)(i) TULRCA requires the union to provide “lists” of the “categories” and “workplaces”, as well as “figures” showing the total number of affected employees and the numbers in each category and at each workplace in its Notice of Ballot. The union is also required to provide “an explanation of how those figures have been arrived at” (section 226A(2)(c)(i) TULRCA).
For members who pay subscriptions via check-off, the union is allowed instead to provide “such information as will enable the employer to deduce” the information that would have been provided in those lists and figures. In other words, the union is entitled to refer the employer to its check-off records in the pre-ballot notice (section 226A(2C) TULRCA).
The union is also entitled to use this alternative formulation when only some of the affected members pay subscriptions via check-off. In that case, it is usual to give the “lists” and “figures” for non-check-off members and refer to the most recent records for check-off members.
The same requirements apply to the Notice of Action in respect of members who will be asked to participate in the action (sections 234A(3)(a) (i) and 234(3A) TULRCA).
In both notices, the “lists” and “figures” must be “as accurate as is reasonably practicable in the light of the information in the possession of the union...” (sections 226A(2D) and 234(3D) TULRCA).
Information will be regarded as “in the possession of the union” if it is held “for union purposes” in a “document” (whether electronic or otherwise); and by an “officer” or “employee” of the union (section 226A(2E) TULRCA).
For the purpose of the Notice of Ballot and the Notice of Action, “workplace” is defined as:
“(a) in relation to an employee who works at or from a single set of premises, those premises, and
(b) in relation to any other employee, the premises with which his employment has the closest connection”
(sections 226A(2I) and 234(5D) TULRCA).
As to which categories to list, paragraph 15 of the Code of Practice: Industrial Action Ballots and Notice to Employers (2005), which is not itself legally binding but which is admissible as evidence, provides that:
“... When deciding which categories it should list in the notice, the union should consider choosing a categorisation which relates to the nature of the employees’ work. For example, the appropriate categorisations might be based on the occupation, grade or pay band of the employees involved. The decision might also be informed by the categorisations of the employees typically used by the employer in his dealings with the union. The availability of data to the union is also a legitimate factor in determining the union’s choice.”
EDF Energy Powerlink Ltd -v- RMT
In EDF Energy Powerlink Ltd -v- RMT, the union described the members to be balloted in its pre-ballot notice as “engineer/technican”. That was the categorisation used on the union’s membership database and it did not have any other information.
EDF complained that it was unable to tell which groups of employees would be affected and could not therefore make plans in response to any industrial action.
Granting an injunction, the High Court held that, although EDF was not entitled to a list of job descriptions, it was entitled to be told which “trades” were covered. It said that there were circumstances in which the union could not simply rely on the information already in its possession and had to seek further information from its members.
Network Rail Infrastructure Ltd -v- RMT
In Network Rail Infrastructure Ltd -v- RMT, Network Rail complained that, in the union’s Notice of Ballot, a number of workplaces had been omitted, some non-existent workplaces had been included, some workplaces had no union members, some workplaces were listed simply by geographical location and some workplaces were listed as “unknown”.
Granting an injunction, the High Court reinforced the finding in the EDF case that the union was not necessarily entitled to rely on the information already in its possession.
Although the union had reconciled the contents of its membership database against information provided by Network Rail for the purposes of job evaluation, the court held that it had not paid sufficient regard to information provided by Network Rail in relation to previous legal challenges in 2004 and 2008.
The court also ruled that the union’s explanation of how the “figures” had been arrived at was insufficient because it did not accurately reflect the steps the union had taken.
Informing members of the ballot result
As soon as is reasonably practicable after holding the ballot, the union is required to “take such steps as are reasonably necessary to ensure that everyone entitled to vote in the ballot is informed of the number of
(a) votes cast
(b) individuals answering ‘yes’
(c) individuals answering ‘no’, and
(d) spoiled voting papers”
(section 231 TULRCA).
The union also has to inform affected employers of the result of the ballot (section 231A TULRCA).
In the Network Rail case, the union sent a text message that did not itself contain the statutory information to its members directing them to its website. The High Court held that this was not sufficient because it did not amount to taking “active steps” to inform members of the result.
In British Airways -v- Unite (No.2), the Court of Appeal (by a majority of two to one) rejected the test of taking “active steps”.
It found that, when the affected members all routinely used the internet on a daily basis, and when members had been told that the result would be published on the union’s website, it was sufficient for the union to do just that.
In that case, the union had previously told members that the result would be published on its website (which it was), which was not password protected.
It is impossible to over-emphasise the importance of ensuring that unions comply with the statutory requirements under TULRCA. This will involve checking and rechecking the information that they must provide in the Notice of Ballot and Notice of Action. If they don’t, they may face a claim for an injunction and/or damages, and affected members will lose their protection from unfair dismissal.
We have only dealt in this article with issues relating to the members to be balloted, the information to be provided in the Notice of Ballot and Notice of Action and informing members of the result of the ballot, as these are the areas that have been most heavily scrutinised by the courts over the last year. Their judgments show the level of scrutiny being applied and the hurdles that unions have to jump to comply with the legislation.