In Thomas Cook Airlines Ltd v British Airline Pilots Association  EWHC 2253 (QB), the High Court considered the scope of a trade union's obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to provide information on the timing of a strike on voting papers in a ballot for industrial action.
Section 229(2D) of TULRCA states that a voting paper in a ballot for industrial action "… must indicate the period … within which the industrial action … is expected to take place.” This is a new provision, introduced by the Trade Union Act 2016, which took effect on 1 March 2017 and this is the first case where it has been considered by a court.
The British Airline Pilots Association (BALPA) balloted employees of Thomas Cook, following a dispute about pay and conditions for pilots. The voting paper stated: "It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8th September 2017 to 18th February 2018" and asked: "Are you prepared to take part in industrial action consisting of a strike?" The members voted in favour of industrial action.
Thomas Cook applied for an interim injunction to try and stop the strike, arguing that the voting paper did not comply with section 229(2D). It argued that more information was needed. There was some evidence that BALPA's expectation about when strike action would occur was more specific than the five month window of time stated on the voting paper: it could have been just one day's strike in September 2017.
High Court decision
Hearing the injunction application, the High Court had to consider whether it was more likely than not that BALPA had failed to comply with section 229(2D). It decided it was not, and refused to grant an injunction.
The court considered the reality of industrial action, and accepted that the timing and intensity of it is likely to be affected by progress in negotiations with the employer.
The court decided that section 229(2D) does not require a trade union to identify specific dates on which industrial action is to be taken, and indicating the period within which it is expected to take place is enough to comply with the legislation.
The judge said: "It seems to me that the word "expected" in the subsection has to be read in the context of all of the uncertainties which are inherent in a trade dispute" and that "planning industrial action strategy is necessarily both a dynamic as well as a reactive process. It is one which is very much contingent upon (a) various factors which are not known before the ballot papers are sent out to members and (b) other variables which are entirely outside the control of the defendant, for example Thomas Cook's response to the ballot result. All of the above considerations go into the mix in planning the intensity and frequency of the industrial action. These are things that we only sensibly know after the ballot has actually taken place and as the negotiations develop."
He then added: "the subsection does not specify the level of detail into which the union needs to go, provided that there is a statement in the voting paper which complies with the subsection. .....one thing which the subsection does not require the trade union to do is to identify specific dates on which industrial action is to be taken, rather than the period within which it is expected to take place."
Although this decision is not helpful to employers, it is not surprising as the judge applied the wording set out in the legislation. An employer faced with similar wording on a voting paper will have to find another route to challenge the validity of the ballot.