Even after the Unite decision unions must continue to be careful with TULRCA compliance

British Airways Plc v Unite the Union [2010] EWCA Civ 669 (20 May 2010)

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From the judgment:

• Minor failings in informing of members of the results of a ballot may be forgiven but this does not extend to a failure to inform employers.
• Although the Court of Appeal recognises some flexibility in the methods of informing union members of the results of a strike ballot, section 231 must be taken seriously as non-compliance would mean the Union foregoing the statutory protection of Part V (s.231 stipulates that unions inform members of numbers of: votes cast in a strike ballot, "yes"/"no" votes and spoiled voting papers).
• Disseminating information via the website for computer literate members is acceptable.
• The minority opinion believed that Unite should have been more careful in sending its member the s.231 information and that this ommision could be fatal to at a subsequent trial.

Unite (the Union) appealed the granting of British Airways Plc (BA) an interim injunction restraining the Union from taking industrial action against BA. Unite balloted its members between 25 January and 22 February 2010 and BA sought its injunction on the grounds that the ballot was not conducted properly and therefore Unite was promoting unlawful industrial action and thereby inducing its employees to break their contracts with BA by striking or through other industrial action.

In order for Unite to benefit from statutory protection under section 219 of the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) Unite needed to comply with a number of statutory conditions in Part V of TULRCA. BA complained that one of these conditions was unfulfilled and Unite was therefore in breach of the provision cancelling its statutory protection.

It was agreed that the ballot itself was carried out fairly and in accordance with the law as confirmed by the scrutineers of the independent Electoral Reform Services. The vote in favour of strike action was overwhelming. Nevertheless the High Court judge exercised his discretion in granting the restraining order against Unite under section 221(2) of the TULRCA. This was owing to lapses in the union's reporting of the ballot results under S.231 TULRCA.

Section 219 of TULRCA protects against possible tort liabilities arising from industrial action and depends on majority support through a ballot for industrial action but in this case was dependent on the Court of Appeal recognising that to all intents and purposes the demands of S.231 had been met.

Section 231 requirements regarding the communication of the results require:

Section 231A stipulates the employer must also be informed. United did this and BA's complaint was that section 231 was not complied with in that the unions members were not fully informed as demanded by law.

The Court stressed the irony of BA using legislation that promoted union member's interests when seeking to break the strike. This in spite of the overwhelming majority of members having voted for this.

The members are entitled to be informed about four specific features of the ballot. That information must be provided by the Union. I cannot, however, refrain from observing that there is a certain irony that it is the employers in this case whose application is based on an asserted non-compliance by the Union with steps created in the interests of the members, when the employers know perfectly well that an overwhelming majority of the members wish to take strike action and that the object of these proceedings is to restrain them from doing so. Nevertheless, in my judgment, the statutory provisions appear to be in wide enough terms to enable BA to take proceedings on this basis, and the contrary has not been argued.

Compliance with section 231 involves steps "reasonably necessary to ensure" that the statutory information is provided to members. This is a less strict formulation than might of been, such as "all reasonable steps" or indeed "all necessary steps" and thus allowing some leeway for the practical difficulties involved in informing all members.

The Court of Appeal also noted that, " if the result of a ballot itself is unaffected by accidental, small scale failures in the process, it is difficult to see why minor failures about the provision of information about the results to the Union members should undermine the entire process."

The union was therefore lucky in that the legislation here was more indulgent than might have been expected from the tory government that introduced the legsilation. This indulgence does not however extend to the informing of employers where, "Different considerations arise in the context of information to be supplied to the employers, not least because non-compliance with that obligation will almost inevitably be deliberate." "the provision of information to individual union members, important as it is, is less than absolute. "

BA, relied on the judgment in Network Rail Infrastructure Limited v The National Union of Rail, Maritime and Transport Workers [2010] EWHC 1084 (QB)that required active steps to be taken to provide information to union members. The Court of Appeal has however now deprecated that judgment.

The Court of Appeal disagreed saying that the requirement for 'active steps' "represents a gloss on the statutory requirements" and that there were no 'good policy reasons' to demand such that the Court of Appeal knew of. Mrs Justice Sharp in Network Rail Infrastructure Limited v The National Union of Rail had failed to explain the existence of any such policy reasons. Lady Smith commented, "I cannot detect any good policy reason why the duty to inform members can only be satisfied by a personal communication. I consider that the duty can be satisfied if the results are easily accessible to them if they want them."

The Lord Chief Justice continued, "The important issue is that the members should be informed of the result, that is in the form required by section 231, and in this day and age, when, as here, the members of this union are highly computer literate, and use modern technology on a daily basis, there is no reason why the fact that they have to take a few simple steps themselves at a keyboard could possibly mean that they are not being supplied with information within the ambit of section 231."

The Lord Chief Justice said that more could have been done by the Union and that the process was flawed but it was enough and therefore complied with section 231. " McCombe J (In the previous High Court decision granting an injunction against Unite) underestimated the strength of the Union's case that, on this particular issue, as on all the other issues relating to the ballot, it would be entitled to protection under Part V of the Act. That may have been because he appears to have adopted Mrs Justice Sharp's approach to the problem and her concerns about the absence of more positive methods of communication to union members in that case, and this led to a consequent diminution in his assessment of the importance, in this particular case, of the availability and use of websites as a means by which this union provided information to its members. "

"In my judgment, if this case went to trial the high probability is that BA would establish that the section 231 process could have been better, but there is a high probability that the Union would establish that the process was sufficient. I should therefore allow the appeal."

The judgment continued that section 231 must be taken seriously as non-compliance would mean the Union foregoing the statutory protection in Part V whereby a strike without the statutory protection would be liable to the employer for his losses under the tort of inducing a breach of contract.

Lady Smith stressed that TULRCA was not designed to prevent unions from organising strikes (wildcat strikes excepted) but that, "ballots for industrial action were secret, free and fair". She quoted Lord Justice Millett in London Underground Limited v National Union of Railwaymen, Maritime and Transport Staff [1996] ICR 170,"Parliament's object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity but to ensure that such action should have the genuine support of the members who are called upon to take part."

Lady Smith recognised that Unite tried to disseminate the result of the ballot widely but it failed to disseminate properly the results of the ballot as demanded by s.231 i.e. the yes/no votes, numbers voting and the spoilt votes." Plainly it would have been possible for those communications to have included all four items of information".

Lady Smith disagreed with BA comparing the necessity of the actual vote, which needed to be a personal communication sent to the home address with the result of the ballot which 'only needs to be information that is readily accessible'. Parliament intended to require the Union to disseminate the statutory information in such a way as would enable every entitled member to access it easily if he or she wished to do so. This view is reinforced by section 232B that allows for 'small and accidental failures' in procedure to be disregarded when they are unlikely to affect the result of the ballot.

Lady Smith concluded, "I cannot believe that Parliament was content to disregard minor accidental infringements of the balloting provisions and yet intend that minor and inconsequential infringements of section 231 should have the effect of invalidating the ballot.....The policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot...It cannot have been Parliament's intention to allow a minor infringement which has had no adverse effect on anyone's rights or interests to invalidate the ballot. In my view substantial compliance with section 231 will satisfy section 226(a)(ii). If it were not so, the rights of workers to withhold their labour would be seriously undermined.