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 EWCA Civ 1206, IRLR 813, Court of Appeal - John Hendy QC, Ian Scott
Guidance on the construction of a trade union's obligations in relation to pre-strike ballots.
Trade union's appeal from an injunction in favour of the respondent employer preventing the union committing the economic tort of procuring a breach of contract by striking. The injunction was granted on the ground that the union's pre-strike procedures did not conform to the statutory defences in the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Employment Rights Act 1996. Although the union had withdrawn the strike in question it sought guidance on the law in relation to pre-strike ballots and fresh evidence was relied on by both parties. Four categories of entitled voters had not received pre-strike ballot papers: (i) those whose new grades of work had not been recorded by the union; (ii) those whom the union believed to be in arrears; (iii) those whose change of address caused the ballots to be sent to the wrong address; and (iv) one person was not balloted by the union's mistake.
HELD: (1) It was not unlawful in principle for a union to threaten industrial action but any such action had to be preceded by a secret ballot of the union's members. Employers had the right to know of any intended ballot or industrial action. Five considerations affected the construction of the statutory framework: (a) it aimed to ensure that employees induced to strike by their union could vote in the ballot authorising that action; (b) section 230 concerned the employee's entitlement to vote, restrictions on which had to be construed narrowly; (c) section 232B dealt with inconsequential failures; (d) section 24 obliged the union to keep a register of members' names and addresses; and (e) the union sought an immunity from the general law. (2) Sections 219, 226 and 232A of the Act set out preconditions for immunity from the tort. (3) Section 227(1) of the Act was a key provision indicating who was entitled to vote in the ballot. It was construed by consent as asking two questions: (i) who the union at the time of the ballot believed would be induced to take part in the industrial action; and (ii) whether such a belief was reasonable. (4) Employers were entitled to notice of both ballots and strikes but unions were not compelled to provide a list of names. (5) Section 230 of the Act qualified the union's obligation to send every entitled voter a ballot; the union had to do what was reasonably practicable to obtain the secure delivery of the ballot papers to each voter. It could not have been intended that a ballot would have been properly conducted where the union failed properly to record notified changes of address but a court would probably find that a union had done all that was reasonably practicable where it had a system for reminding members of the need to inform it of any change of address and a member had failed to do so. (6) In this case, the union had done all that was reasonably practicable to send the ballot papers to right addresses. As for the person who was not balloted by mistake, s.232B of the Act was designed for that type of situation. (7) In relation to the first two categories of unballoted members, the judge in exercising his discretion under s.221 of the Act was entitled and right to conclude that the union would not establish its immunity on the evidence. In the light of the union's administrative practices, it was not reasonable for the union to believe that those on the lists to be balloted included everyone in the class who was likely to be induced to take industrial action if the ballot supported such a move.
John Hendy QC and Ian Scott instructed by Pattison & Brewer for the union. Antony White QC instructed by Ford & Warren for the respondent.