P v NASUWT (Court of Appeal,9 May 2001)
The teachers' union NASUWT has won an important victory in the Court of Appeal in a case concerning industrial action over a disruptive pupil.
The pupil had been excluded from the school by the head teacher, but this had been overturned by the school governors. NASUWT balloted its members to take industrial action. The action consisted of refusing to accept the direction to teach the pupil. This action had the result that the child was taught separately by supply teachers. The pupil unsuccessfully took legal action against the school and then took legal action against the union. A High Court judge rejected his case, but the student appealed.
Industrial action only has legal protection if it is in contemplation or furtherance of a trade dispute. The pupil argued there was no trade dispute. The Appeal Court disagreed. There was a dispute as to whether it was reasonable for the teachers to be made to teach the pupil in class. The teachers' terms and conditions require teachers to perform duties in accordance with directions reasonably given by the head teacher. This was a dispute about terms and conditions of employment and therefore a trade dispute.
The Court went on to say that it would be anomalous to regard a dispute about the physical conditions of the classroom as a trade dispute, but not to do so in relation to disputes about working conditions such as the amount of overtime, number of pupils or the reasonableness of a direction as to whom they were expected to teach.
The other point in the case is that two NASUWT members at the school had not been balloted. The vote was 26 to nil in favour of the action taken. All NASUWT staff at the school were then called upon to take action, including the two who did not receive ballot papers.
The union argued that there had been an accidental failure on a scale which did not affect the outcome of the ballot. They relied upon changes introduced by the Employment Rights Act permitting such failures. However, despite confusion caused by a drafting error in the Act, these new provisions did not apply to calling to action those who had not been balloted.
For future reference, where section 232B on small accidental failures refers to "section 230(2A)", it should refer to "section 230(2B)" which relates to balloting of merchant seamen.
Despite this, the Court said that the calling out of someone on action who has not been balloted must be disregarded where the failure to ballot is accidental and would not have affected the outcome of the ballot.
In deciding whether it was reasonable for the union to believe at the time of the ballot that someone would be called upon to take action, the Court said that the time of the ballot means the date on which the ballot papers were sent out. There is not a continuing obligation on the union to send out ballot papers to all who join during the dispute or to recommence a ballot when members join once the ballot has started.
This is a helpful judgment. Despite this, it is still important to bear in mind that where the number of members omitted from the ballot is significant and may affect the result or where the union should have known at the date of the ballot that those members should have been included, the industrial action will not have legal protection.