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 IRLR 851;  1 ICR 173, Court of Appeal - Lord Hendy QC, Simon Gorton QC
The requirements imposed on trade unions by the Trade Union and Labour Relations (Consolidation) Act 1992 s.226A, s.231A and s.234A were not disproportionate restrictions on rights under the European Convention on Human Rights 1950 art.11.
The appellant trade union (U) appealed against a decision to grant an injunction restraining it from calling a strike. U represented bus drivers working for the respondent bus company (M). A dispute arose, and U's regional secretary gave notice to M that it intended to ballot its members for industrial action. The letter gave information about those employees of M who were entitled to vote, including those whose union fees were deducted by M directly from their pay (check-off employees) and those whose fees were paid otherwise. The ballot was held, with a majority voting for a strike. The regional secretary received the result from the ballot organisers a day later. The day after that, the regional secretary received authorisation from U's general secretary for a strike. The regional secretary then gave M notice of the ballot result and U's intention to strike. That notice gave a breakdown of the employees who would take part in the strike and the numbers involved. The numbers were inaccurate in that the total figure given was 10 employees below the actual figure of some 850 employees. The strike took place but the dispute remained unresolved, and so U served a second strike notice, which similarly gave inaccurate figures. The judge found fatal defects in the details of employees provided in the ballot notice and the strike notices as they had not complied with the Trade Union and Labour Relations (Consolidation) Act 1992 s.226A or s.234A, and in the numbers provided, and in the fact that U had not given notice of the result of the ballot as soon as reasonably practicable, as required by s.231A. U argued that (1) there was no need to inform the employer of the result of the ballot unless the union decided in favour of industrial action, and if there was, the delay there had been did not show that it had not given M the result as soon as reasonably practicable; (2) since there were both check-off and non-check-off employees involved, the case fell within s.226A(2)(c)(ii) in relation to the ballot notice, and the similar provision in s.234A(3)(a) in relation to the strike notice, which meant that U had the option of either giving M lists, figures and an explanation of how the figures were arrived at, or giving the information required under s.226A(2C); (3) the errors in the figures were trifling and should be disregarded; (4) the requirements imposed by the 1992 Act were disproportionate restrictions on its right to call a lawful strike, and so breached the European Convention on Human Rights 1950 art.11.
HELD: (Maurice Kay L.J. dissenting on the issue of required information) (1) The judge had been correct to find that s.231A imposed a free-standing obligation on U to inform M of the result of the ballot, which had to be performed even if the union did not initiate industrial action. Neither s.231 nor s.231B could be said to be dependent on there being a call for industrial action. The union could wait for up to three weeks before calling for action; in the meantime, it had to have informed the employer of the ballot result as soon as reasonably practicable, which was a very different timescale. The judge had also been correct that U had not complied with its obligation under s.231A. It would have been reasonable for U to ask the ballot organisers of the result on the day the ballot closed. Furthermore, the regional secretary's having to wait for authority from the general secretary to pass on the result, might have been right in terms of authority within U, but it was not a reason which U could rely on for withholding the information from M. (2) While U could have complied with s.226A by giving lists, figures and explanations for all the employees concerned, it could not have done so by giving the s.226A(2C) information for all employees, because only for check-off employees could M be expected to readily deduce the information it needed. (3) The error was plainly trivial and insignificant in context, and could have had no impact on M's response to the strike notice or its preparations to cope with the strike, RJB Mining (UK) Ltd v National Union of Mineworkers (1997) IRLR 621 QBD considered. The judge was therefore wrong to find that that defect had been fatal, but even if he had decided that point differently, his overall conclusion would have been the same. (4) The provisions with which the appeal was concerned were not disproportionate restrictions on rights under art.11. The obligation under s.231A was not too onerous: it was an obligation to do something as soon as reasonably practicable which was not in itself difficult. Nor was the requirement of an explanation of how the information supplied had been arrived at an onerous obligation. It was not difficult to comply with and there were legitimate reasons for requiring an explanation: an employer should be able to understand something about the degree of reliability of the data supplied.