Taking industrial action without a valid ballot is unlawful, and leaves unions open to possible legal action and a loss of immunity. This is what happened in the case of British Telecommunications plc v Communications Workers Union (IDS Brief 753).
What led to the dispute?
BT had negotiated a framework agreement with the union, the CWU, to introduce a voluntary productivity scheme affecting certain sections of its operations. The problem was that the members overwhelmingly rejected the agreement when it was put to them. As a result, the company decided to introduce the changes on a voluntary basis only.
The union objected to that idea and decided to ballot its members about possible industrial action. It gave notice to BT in March 2003 that members would be asked whether they wanted to take strike action or not in response to the company's proposals. This was the only form of industrial action on the ballot paper.
The ballot came out in favour of strike action and in April the union gave notice to BT of a series of one-day strikes.
What was the response from the employer?
Although the two sides continued to negotiate, they failed to reach agreement and the company subsequently applied to the court for an injunction arguing that the strike action was unlawful on three main grounds:
- that the strike was not 'in contemplation or furtherance of a trade dispute', contrary to section 244(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). This was because some of those being balloted were not affected by the new scheme and so had no dispute with the company about their terms and conditions
- that the ballot was made invalid by the information fed to members by the union about the need to take strike action. BT argued that they should have been offered the chance to take action short of a strike, but because there was only one option open to them, that was what members had to vote for
- that the notice of ballot and notice of industrial action were defective in that they only gave the total number of members affected, and did not give a description of those to be balloted or those who might take strike action
What was the view of the High Court?
The High Court ruled:
- that a strike by some workers in relation to 'the physical conditions' of other workers was within the definition of a trade dispute as defined in s244(1) TULR(C)A. It specifically stated that if employees were unable to take strike action when they wanted to change the terms and conditions of employment of just some of them, then the whole representative function of trade unions would be undermined
- that some of the information fed by the union to its members was misleading, but that was not the same as saying that the strike action did not have the support of members. Although they might well have thought it was possible they could be called to take action short of a strike, they also realised that a strike was very likely
- that the union had information which would be helpful to BT in making plans to mitigate the effects of the strike action. For instance, it would have been useful for BT to know which employees would not be out on strike so that they could carry out priority work
What was the end result?
The Court therefore decided that BT would be likely to succeed on this last point if the issue went to trial. And as BT would suffer substantial losses if the strike went ahead (compared to the slight inconvenience to the union to reorganise the ballot), it granted an injunction to BT restraining the strike until the whole matter came to trial, or some other order was granted.