Having won two High Court injunctions, British Airways narrowly lost in the Court of Appeal when Unite succeeded in overturning an order restraining planned strike action because of alleged irregularities in the way their members had been told the result of the ballot. The Court of Appeal decided by a 2:1 majority that the relevant legislation did not require the union to notify every member individually of the full results of the ballot, including the number of spoilt ballot papers. Modern communication methods, such as the use of a website and notice boards, had been sufficient for this purpose.

After a number of successes for employers in the High Court, this decision will give them pause for thought. Challenging the legitimacy of a ballot where there are significant procedural irregularities is likely to be successful. But the latest twist in this litigation shows that relying on relatively insignificant blemishes, which could not have affected the overall result, is a high risk strategy. Employers will also wish to monitor a case pending before the European Court of Justice, in which the RMT union is arguing that balloting restrictions in our domestic law are incompatible with the Human Rights Convention.