The Court of Appeal has lifted the interim injunctions previously awarded by the High Court in favour of Serco and London Midland against the RMT and ASLEF which had prevented the unions from calling their members out on strike as planned. The employers had originally been successful in their arguments before the High Court that the strikes should be prevented because of various alleged breaches of the statutory balloting and notification provisions set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).
These requirements include the conducting of a postal ballot, in which all (and only) those members whom it was reasonable for the union to believe would be called out to strike are entitled to vote; and sending the employer information about the numbers and categories of workers involved, along with an explanation of how those figures are arrived out.
ASLEF had given notice to London Midland in November 2010 that it would carry out a strike ballot. It gave details of the numbers and categories of workers to be balloted, along with an explanation of how those figures had been arrived at. 87% of those voting voted in favour of strike action. ASLEF then issued a strike notice to London Midland, which contained the same explanation for the numbers as the strike ballot.
The High Court allowed London Midland’s application for an interim injunction preventing the strike action on the basis that it found that the ballot notification did not include an accurate and adequate explanation as to how ASLEF had decided which members should be balloted; there was no real explanation of how the figures had been arrived at; and there had been no audit of ASLEF’s membership list. Further important findings were that the figures on the ballot notices were not as accurate as reasonably practicable, specifically one ballot notice showed there were 21 drivers at Leamington Spa depot when only 20 were in fact employed by the company, one driver having been promoted to managerial ranks; and another ballot notice showed that there were 33 drivers at Wolverhampton depot, when there were only 32 drivers, one of the drivers in fact being employed by a different company; and a finding that those two individuals had been allowed to vote, even though they were not entitled to.
In relation to the RMT appeal, the High Court had similarly found that there had been inadequate information in the ballot and strike notices sent to Serco.
The unanimous judgment of the Court of Appeal was that it was wrong to say that the relevant legislation should be construed strictly against the unions, as there was no presumption that the interests of employers should trump the interests of employees.
The Court of Appeal also made clear that “human errors and failings” could fall within the “accidental breach” provisions of the statute – whereby in determining whether or not a proposed strike action was unlawful, the court can disregard certain breaches of the balloting rules by the union if they are accidental and if they are unlikely to affect the result of the ballot. The High Court had initially found that the errors must be both “unintentional and unavoidable”, which was a very narrow definition of “accidental”. The Court of Appeal’s judgment has taken away this narrow construction.
The requirement for unions to provide figures in the notice that are as accurate as “reasonably practicable” only extends to figures based on the “information in the possession of the union”. There is no requirement for a union to create records that are not already in existence, but only to obtain existing relevant documents from its officers and employees so that it can analyse the information and be in a position to supply the employer with the lists and figures required by the statute.
In relation to the requirement for unions to provide an explanation of how such figures were arrived at, the Court of Appeal decided that a “formulaic” explanation was acceptable – and so where a union obtains information in the same way for each strike ballot, it is acceptable for the explanation to be the same for each strike. Further, the Court of Appeal did not agree with the finding of the High Court that the notices were invalid because they had suggested there had been an audit when there had been none. The Court of Appeal pointed out that union officials are not “drafting a statute” when they prepare their strike ballots: it was only if the description provided was “positively and materially misleading” that the notice would be invalid.
This decision marks a move by the courts away from an overly strict interpretation of the technical requirements of the statute. The decision will come as a relief to unions and a disappointment for most employers, as it will have the effect of making it more difficult for employers to obtain interim injunctions against proposed strikes by the unions on technical grounds.