ASLEF v London Midland (conjoined with RMT v Serco)

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 ASLEF v London Midland (conjoined with RMT v Serco), the Court of Appeal said minor errors should be allowed under the small accidental failures provisions in section 232B of the 1992 Trade Union and Labour Relations (Consolidation) Act (TULRCA).

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

Basic facts

After negotiations with London Midland about the harmonisation of members’ terms and conditions broke down, the union started balloting its members for strike action in November 2010.

London Midland alleged that the conduct of the ballot and the ballot notice itself were defective and applied for an injunction two days before the strike was to due to start. They argued that the union had given an inaccurate explanation when it said it had audited its records and that the use of the word “audit” involved some form of systematic examination against underlying data.

The union argued that any errors in the notification were “de minimis” (trifling) since they affected only two members in 604 and should be ignored, given an overwhelming vote in favour of strike action.

High Court decision

The High Court judge rejected the union’s argument, saying that the “de minimis” exception was not available for ballots and strike notices. Instead the judge granted the injunction on the following grounds:

  • the ballot notification included “neither an accurate nor an adequate explanation as to how the union had determined which members ought to be balloted”
  • the figures the union provided were not as accurate as reasonably practical and had the union had proper systems in place, this would not have happened
  • if the union had taken “reasonable and practical steps for identifying the relevant employees”, the error of allowing two ineligible members to vote would not have occurred

Court of Appeal decision

The Court of Appeal, however, disagreed. 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 stressed that the only records that unions are expressly obliged to keep are a register of members’ names and addresses. There is no separate statutory duty to keep a record of workplaces or job categories.

It found that the union believed it was balloting the relevant drivers but because of human error, it wrongly extended the vote to two members not entitled to vote. This was a case where the small accidental failures provisions applied under section 232B TULRCA.

Whilst the Court of Appeal accepted that more information could have been provided that “will always be the case since an explanation is potentially open-ended”. The Court concluded that the explanation, “although brief, was sufficient to satisfy the statute and that the judge misdirected himself as to the specificity required.”

It added that union officials providing an explanation are not drafting a statute nor are they required to use undue precision or accuracy in their use of language. 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. The High Court judge had therefore adopted too rigorous an approach to the interpretation of the explanation.

It allowed ASLEF’s appeal and discharged the injunction.

Comment

Although leave to appeal to the Supreme Court was granted, the employers have not appealed. This case is now the leading case on ballot and strike notices and rejects the overly technical approach taken in previous cases in the last few years. Whilst the burdens on trade unions to comply with the incredibly complex provisions of the law when organising a strike ballot remain, this sensible decision at least means it is possible with care to take lawful action.