There is no requirement to specify the precise date for proposed industrial action on a voting paper.

The facts

A new section of the Trade Union and Labour Relations (Consolidation) Act 1992 (often referred to as "TULRCA"), which came into force earlier this year, stipulates that a voting paper for industrial action "…must indicate the period…within which the industrial action is to take place.". This was the first case in which this provision has been considered by the High Court.

The British Airlines Pilots Association (BALPA) held a ballot of its members. The question asked in the ballot paper was "Are you prepared to take part in industrial action consisting of a strike?" The members voted in favour of strike action. However, the employer, Thomas Cook Airlines Limited, said that the ballot failed to comply with the requirements of this new provision of TULRCA, and it sought an injunction on this basis.

The relevant part of the voting paper stated that, "It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8 September 2017 to 18 February 2018." In deciding whether or not to grant the injunction, the judge had to decide whether it was more likely than not that the British Airlines Pilots Association had failed to comply with the relevant section of TULRCA. If the answer to this question was "yes", the injunction would be granted.

The judge decided that the answer to the question was "no", and he did not grant the injunction.

In reaching this decision, the judge said that a period was specified in the ballot, and it did not seem likely that a court would conclude that more detail was required than was given. If more detail were to be required, how much detail, and of what nature? The extent of the obligation, as put forward by Thomas Cook, was unclear, meaning that, if TULRCA were to be construed as Thomas Cook suggested, it might be vague and unworkable, and a trade union seeking to comply with the subsection might find it difficult to do so. The judge also considered the purpose of the subsection, which (the parties agreed) was primarily to let a trade union member know for what he was being asked to vote. Some union members might take the view that what they were being asked to vote for was wider in scope than they were prepared to approve, and would exercise the option to vote no. Having read the voting paper, the members of the union exercised their right to vote as they did.

The judge considered the reality of industrial action, accepting that the timing and intensity of industrial action is likely to be subject to the degree of progress in negotiations with the employer. The evidence simply indicated a proposed date for the first industrial action.

The judge held that this section of TULRCA does not require the trade union to identify specific dates on which industrial action is to be taken, rather than the period within which it expected to take place.

What does this mean for employers?

This is a disappointing but unsurprising decision for employers. The law does not require a union to give the employer a "preview" of the days on which industrial action is planned: that's what the 14 day notice of industrial action is for. However, arguably the law requires the union to do more than simply state the earliest and latest date on which it can legally induce its members to take industrial action (which is all BALPA did) so this decision may not be the last word on this point.

Thomas Cook Airlines Ltd v British Airline Pilots Association