Case - Balfour Beatty Engineering Services Ltd v. Unite The Union

[2012] EWHC 267 (QB), Queen's Bench Division - Lord Hendy QC, Michael Ford QC

On 16 February, the High Court refused an application by Balfour Beatty Engineering Services to stop forthcoming industrial action.

The successful party, Unite the Union, was represented by John Hendy QC and Michael Ford, both of Old Square Chambers, instructed by Richard Arthur and Neil Todd of Thompsons.

The case (Balfour Beatty Engineering Services Limited v Unite the Union [2012] EWHC 267 (QB) follows a recent trend of recognising an increased freedom given to trade unions in respect of the burdensome and extremely detailed balloting, notice and information obligations which must be complied with in order to call lawful industrial action.

The case draws upon the recent Court of Appeal cases:

  • British Airways plc v Unite the Union [2010] ICR 1316 (in which John Hendy QC led Ben Cooper for the union)
  • Serco Ltd v National Union of Rail, Maritime & Transport Workers[2011] EWCA Civ 226,[2011] 3 All E.R. 913; [2011] I.C.R. 848; [2011] I.R.L.R. 399 (in which John Hendy QC led Oliver Segal and Rohan Pirani).

This change in the courts’ approach is also demonstrated by London Underground Limited v The Associated Society of Locomotive Engineers and Firemen [2011] EWHC 3506 (QB) in which the union ASLEF, represented by Oliver Segal QC and Ben Cooper of Old Square Chambers, was also successful in resisting an application for injunctive relief.

The central issue in the Balfourcase was whether the union had complied with its duty to send a voting paper to everyone entitled to vote in the strike ballot. The duty, in s.230(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 ,is qualified by the phrase “so far as is reasonably practicable”.

In his judgment on the Balfour case, Mr Justice Eady made clear that, following Serco and the recognition that case gave to the right to strike, a presumption of adverse construction of the statutory requirements against a trade union would be inappropriate. Further, the ‘provisions for flexibility’ included in the relevant statutes must be borne in mind in such cases so that the requirements do not lead to ‘rigidity’. Just as in Serco, the practical realities and the difficulties from a trade union’s point of view of maintaining records which are accurate and up to date were taken into account by the judge.

Mr Justice Eady was clearly persuaded by what he found to be the ‘considerable lengths’ that Unite the Union had gone to in order to ensure democratic legitimacy in the relevant ballot. Noting that the provisions did not state that a union was required to take “all steps that are reasonably practicable”, he considered that it was not sufficient for a judge to hold that the duty in s.230(2) was breached merely because there was some step which the judge, as an outsider, might have done.

He found that while the requirement of ‘reasonable practicability’ introduced an objective test, ‘there must be leeway permitted for those who are familiar with the membership, and with their union’s particular problems of record keeping, to take their own course in making genuine attempts to the standards required of them by legislature’. It followed that the union in the present case was entitled to rely on its membership in order to identify who was their employer, and was not required to take the further step of making enquiries of the employer itself.

In addition, counsel for the union succeeded in their submission that what matters in relation to deciding who is in the balloting constituency depends on the union’s ‘reasonable belief’ as to whom it intends to call on to take part in the industrial action which is in turn dependent on the information which the Union possessed at the material time as to who is in that constituency.

This case summary was produced by our pupil Rosalie Snocken.

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