The Court of Appeal limits the scope of employers to break strikes using interim injunctions

S232B TULR(C)A 1992 allows for accidental ballot errors to be disregarded thus saving the ballot.

National Union of Rail, Maritime & Transport Workers v Serco Ltd (t/a Serco Docklands) [2011] EWCA Civ 226

    Helping You     About     Links     Contact     Site Info     HOME

The employers had sought interim injunctions against strikes on the basis that ballot information provided to them by the unions was innacurate. Employers normally sift any information provided them for the almost inevitable innacuracies as to members eligible to vote in order to apply for injunctions that can last months until the case is heard at trial. It is a method of strike breaking. The injunctions were here imposed by the High Court on the basis of two innocuous inacuracies out of six hundred members eligible to vote have been lifted by the Court of Appeal which ruled in favour of ASLEF and the RMT. The Court of Appeal decision deals mainly with the ASLEF case and the High Court (Ramsey J) injunction (in London and Birmingham Midland Railway v Associated Society of Locomotive and Firemen) but the ASLEF ruling applies similarly to the RMT case of Serco Ltd v National Union of Rail, Maritime and Transport Union( the injunction imposed by Tugendhat J). This decision should serve to protect unions from such abuse of process by employers in the future.

The judgment reminded us that common law does not give a right to strike in the UK with striking workers being in breach of their contracts of employment. Without protection from the liabilities virtually all industrial action would be unlawful. Organisers of a strike would be liable for inducing a breach of contract and other economic torts committed during the course of a strike.

• Even where it is reasonably practicable for a union to avoid error section 232B may apply (where accidental ballot errors are disregarded)and save a ballot.
• Courts must be wary of granting injunctions against strikes as such injunctions are onerous in having the effect of preventing a strike
• S226A TULRCA only requires disclosure of information the Union possesses in as accurate a manner as is reasonably practicable without being obliged to update existing records or make new ones. The argument that a union might therefore keep minimal records so as to reduce information needed to be provided to the employer was dismissed by the Court of Appeal.
• The only obligation on a union giving statutory notices is to provide numbers by reference to general job categories.
• There is no statutory obligation to provide information about earlier ballots but the Court of Appeal argues that if quizzed by an employer it might be advisable to explain any discrepancies to avoid an employer seeking an injunction (with hindsight RMT might have been advised not to have provided this information in the first place as the less information available to the employer means the less scope for subsequent mischief by the employer).
• A de minimis breach of the duty to provide accurate figures is disregarded (Obiter)).
• The law is not intended to establish "traps and hurdles" for unions.
• Under S226A and S234A union must explain how lists and figures are reached but this duty 'is not onerous' and is met by complying with paragraph 16 of the relevant ACAS code.

The Trade Disputes Act 1906 legislation was enacted to confer immunities on organisers of strikes from certain torts where the purpose of the strike was industrial rather than political, "in furtherance of a trade dispute". The Trade Union Act 1984 described the procedures a union must comply with in order to benefit from immunities and the relevant provisions are now found in section 219 of the 1992 TULRCA (amended).

The Trade Union Reform and Employment Rights Act 1993 amended TULRCA and extended the union's procedural obligations by imposing a duty on the union to give certain information about the scope of the proposed ballot, the result, and any subsequent call to take strike action to all the employers affected by the strike.

If a ballot is held to be in breach of the legislation immunities will not apply and the union will be liable in tort for inducing members to strike in breach of their employment contracts.

Although common law recognises no right to strike, european and international law allows them. Article 6 of the Council of Europe's Social Charter and ILO Conventions 98 and 151 (confirmed by the ECHR) support the right to strike under the right to freedom of association under Article 11(1) of the European Convention on Human Rights ( the Human Rights Act in the UK). Under Article 11(2)the right is not unlimited.

The unions argued that the complexity of the balloting provisions interferes excessively with the Article 11(1) right but the decision in Metrobus v Unite the Union [2010] ICR 173 and comments by Lord Bingham in Kay v Lambeth Borough Council [2006] 2 AC 465 means that a future case will need to go above the Court of Appeal for this problem to be revisited.

The Court of Appeal did not accept the argument of Mr Béar QC for the employers when he argued that as the unions wished to take advantage of an immunity the legislation should be construed strictly against them (after Lord Denning MR in Express Newspapers v McShane [1979] 1 WLR 390, 395 ). This was because a premise whereby legislation was construed against unions seeking the benefit of the immunities would mean that Parliament was taking sides with employers, an unnaceptable argument nowadays. The starting point should instead be of a "likely and workable construction" as per P v National Association of Schoolmasters/ Union of Women Teachers [2003] ICR 386.

Despite the balance of convenience in strike cases invariably lying in favour of granting an interim injunction to employers this test has come to be seen as the wrong one in industrial disputes due in part to the injustice of such an injunction having anything but a temporary effect. Such injunctions in effect break strikes. Because of this courts look not only at the interlocutory issues but also the underlying merits of a claim as to whether a union is likely to be able to establish a claim for the immunities at trial (NWL v Nelson and Laughton [1979] ICR 867 (HL)& Section 221 TULRCA 1992). Where the court believes a union will be able to defend at trial action in furtherance of a dispute, the court must refuse to grant an injunction.

• Section 226B where the union must appoint an independent scrutineer who reports to the union after the ballot stating as to whether the statutory rules have been complied with and whether the collecting and counting of votes was fair. This report must be made available to ballot participants and the employer (section 231B).
• Section 227(1) confers the entitlement to vote:- "accorded to all the members of the union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part… in the industrial action in question."
• Section 228 provides that separate workplace ballots must be held if the members voting are employed at different workplaces with members at a particular workplace only allowed to strike if there is they have a majority at that workplace. Section 228B allows aggregate ballots across workplaces where members in a particular job category work for the employer with whom the union is in dispute.
• Section 229 prescribes information included on the voting paper such as the form of the question and the name of the scrutineer.
• Section 230 is states that the vote must proceed without interference or cost to voters.
• Subsection (4)(b) requires votes to be counted accurately but adds that, "(b) an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot."
• Section 233 provides a strike supported by a ballot must be called by an authorised person specified in the voting paper.
• Section 235 provides that the strike must happen within four weeks of the ballot date (eight weeks if the employer agrees).

Section 232A states that industrial action is unsupported by a ballot where a member was not entitled to take part in the ballot who should have been. However section 232B provides that failures in the balloting process, including not allowing to vote someone who was eligible will not necessarily invalidate the ballot:


"(1) If—
(a) in relation to a ballot there is a failure to comply with a provision (2), and
(b) the failure is accidental and on a scale which is unlikely to affect the result of the ballot, the failure (or failures) shall be disregarded for all purposes (including section 232A(c)).

The balloting provisions include an obligation to give certain information at different stages to employers about the balloting process. Section 226A requires that notice of the ballot and a sample voting paper must be sent to the employer otherwise strike action will not be protected. The information includes:

The notice in writing states that the union intends to hold the ballot, the date of the ballot, the lists (of the categories of employee and their workplaces) and the figures (of the total number of employees concerned, the number of the employees in each of the categories in the list and the number of the employees working at each workplace and explanation of the figures).

Sub section (2D) states that the lists and figures, "must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time".

Under subsection 226A(2C)detailed information about job categories or work places don't need to be given for check-off members ( whose union subscriptions are deducted by the employer directly from wages ).

After the ballot Section 231 imposes an obligation on the union to promptly ensure that the employer and workers are given information about the result. A third notification obligation is imposed in Section 234A dealing with notice of a strike call (mirroring section 226A concerning notice of the ballot) requiring a list of figures for workplaces and job categories, together with the information about how the figures were arrived at for 'affected employees'. Failure to comply leaves the strike call unprotected.

The ballot notice pursuant to section 226B issued by ASLEF identified the check-off members and attached lists of the relevant members in the various workplaces as well as explaining how the figures had been arrived at. London Midland raised concerns about the ballot alleging that the conduct of the ballot and the ballot notice itself were defective and the union conceded that it may have balloted three more people than it ought to have done.

Judge Ramsey decided that the strike ballot procedures were contravened in three ways that:
1. the ballot notification was not accurate nor did it adequately explain how the union had determined which members ought to be balloted and the union therefore breached section 226A(2)(c).
2. the figures were not as accurate as required by section 226A(2D)(two extra drivers out of six hundred had accidentally been added to the list ).
3. that it was not reasonable for the union to believe that the two drivers would be induced to strike, and as the judge did not consider this event an accident (as he thought the mistake had been avoidable) section 232B did not apply.

Ramsey J considered that with proper procedures the union would have picked up any errors and as a result the information was not as accurate as reasonably practical. The judge also rejected the union's argument that the doctrine of de minimis was of any relevance when deciding whether the information was as accurate as reasonably practicable there being no express provision entitling the court to disregard even such minor errors. The judge therefore concluded that the union would be unlikely to show at trial that the ballot had been conducted according to statutory requirements and therefore be unprotected by the immunities. He believed that the balance of convenience favoured the employers and granted London Midland an injunction against the strike.

The appeal by ASLEF argued that judge MR JUSTICE RAMSEY:
1. should have found that the error was accidental and that section 232B applied to disregard it.
2. was wrong to have held that the union's figures were not as accurate as reasonably practicable.
3. should have accepted that even if there was a breach of the duty to provide accurate figures, the breach was de minimis and should have been ignored.

The Court of Appeal accepted Mr Hendy's argument for ASLEF that the High Court judge's ruling that in order for an error to be accidental it must be both unintentional and unavoidable was wrong. By concluding that the errors here were not accidental the judge set a standard of perfection frustrating the purpose of the statutory defence for minor errors.

The Court of Appeal also ruled that section 232B applies where there is a breach of section 227 or section 230(2) notwithstanding that the union has not done what was reasonably practicable to prevent those not entitled to vote from voting. Only where a union gave the opportunity to vote to those whom it knew would not subsequently be able to take part in the strike would the defence not apply such as with British Airways plc v Unite (no.1) [2010] IRLR 423 where the union balloted a group of members whom it knew would be taking voluntary redundancy and therefore would not be employed at the time of the strike.


Even where it is reasonably practicable for a union to avoid error section 232B may apply and save a ballot.

Judge Ramsey found that the union would be likely to fail to show that it had complied with this duty because the information given in the ballot notice was wrong, but had proper systems been in place, or further appropriate investigations made, it could have been corrected. His assumption was that section 226A obliged the union to keep accurate records or acquire further information if the information which the union has is not as accurate as is reasonably practicable. Judge Elias in the Court of Appeal disagreed, the only issue being whether the union gave information which accurately reflected what its records.

The Court of Appeal recognised that maintaining accurate records of members' names and addresses is difficult and that the Code of Practice accepts at para 16 that it is not reasonable to expect union records to be perfectly accurate and that there is no separate statutory duty to keep a record of workplaces or job categories.

The Employment Relations Act 1999 (sub section 226A(2)(c ))was framed to avoid the necessity of revealing the identity of members taking part in a ballot (out of fear of intimidation by the employer) but instead enables the employer to minimise the effect of the strike by contacting employees and seeking to persuade them not to strike. This reversed the effect of the case of Blackpool and Fylde College v National Association of Teachers in Further and Higher Education [1994] ICR 648 where the Court of Appeal had ordered the union to disclose the identities of members taking part in the ballot.

In place of specific names section 226(3A)compells the union to include information as to the number, category or workplace of the employees concerned if it possessed the information although only if the information is actually in the union's possession.

The Employment Relations Act 2004 restricts the information to that held for union purposes in documents and discs, and also limits the range of persons who are deemed to be the union for these purposes. The 2004 Act however added to the 1999 Act in the section 226A (2E) need to ensure that the information is as accurate as reasonably practicable "in the light of information in the possession of the union" and with the obligation to explain the figures, both in section 226A and section 234A. The Court of Appeal ruled in this case that the union must only provide information actually in the hands of the union at the time when it complies with its obligation, and not information which the union ought to have had if it had kept proper records, which it could obtain, or which it possessed at some other time.


The obiter observations of Lloyd LJ in Metrobus were quoted:

"that the 2004 amendments included provisions, at section 226A(2D) and (2E), and correspondingly in section 234A, which limit the obligation imposed on a union in this respect, by a reasonable practicability criterion and by defining restrictively the information which is deemed for this purpose to be in the possession of the union. The latter, in particular, bears on the obligation to provide an explanation, because it limits the process which has to be undertaken, and therefore has to be explained, to the information so defined, and makes it what might be called a reasonable endeavours process."

The Court of Appeal ruled that, "the reasonably practicable duty is limited by reference to the information possessed by the union. Without that limitation I would agree that if it were reasonably practicable for the union to go out and acquire the information, it would have to do so. But these are important limiting words....... if the intention of Parliament had been to create a duty to create records not otherwise available to the union, it would have said so unambiguously. No such statutory obligation is created."

"The changes made in the 2004 Act were intended at least in part to deal with the difficulties raised in the London Underground case. It would be surprising if they were intended to make the burdens on the union more onerous than they had been by creating a fresh duty to obtain information. I accept that there will be a duty on the union to obtain any relevant documents from union officers and employees and to collate and analyse that information to enable it to supply the relevant lists and figures to the employer as accurately as it reasonably can. Moreover, it would in my view be in breach of the duty to provide information drawn solely from documentary records when the union knew that the information was actually wrong. The duty is more than simply to replicate in a mechanical way the information in the union's possession. However, in my view what is required, as in the previous incarnations of this duty, is that the union should assist the employer by drawing upon information it already has. The fact that the information is defined as information held "for union purposes" supports this construction. It suggests that the information has been obtained in connection with some quite separate union purpose rather than simply for the specific purpose of complying with the statutory duty."

As to the employer's argument that unions would deliberately fail to collate information that might be of future help to them regarding a strike the Court of Appeal disagreed, arguing that in practice unions will have information about their members' job categories and workplaces either in local or central records for their own 'union purposes' as a union needs to know where its members are employed and by whom in order to represent them when pursuing grievances and conducting negotiations. Future strike action is not uppermost in a union's decision whether to collect information on members. In any case, the union will need information on workplaces and job categories in order to conduct a strike ballot.

The de minimis principle was not part of the decision but the Court accepted that it would be unjust to invalidate the whole process because of a mistake about two out of six hundred members. RJB Mining (UK) Ltd v NUM [1997] IRLR 261 para.17, Maurice Kay J who said in para 17:

" a union is not expected to achieve 100% perfection in the conduct of ballots such as these. A union has the protection of the de minimis rule and the test of reasonable practicability." In British Railways Board v National Union of Railwaymen [1989] IRLR 349 Lord Donaldson MR said that de minimis means "trifling errors which should not be allowed to form a basis for invalidating the ballot."

As to whether "substantial compliance" is sufficient Section 226(2)(a)(ii) allows that industrial action is regarded as being supported by a ballot if amongst other conditions the requirements of section 231 are satisfied. thus making section 231 a condition in the validity of the ballot. As section 231 only requires the Union to take reasonable steps to ensure that the information reached those entitled the Court of Appeal ruled that minor and inconsequential infringements of the balloting requirements can be disregarded as it is not possible that Parliament would disregard minor accidental infringements of the balloting provisions and yet intend that minor and inconsequential infringements of section 231 would invalidate the ballot. "I consider that 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.........in my view 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. In my judgment whatever the justification for applying the principle of substantial compliance..... I am satisfied that the doctrine of de minimis at least is available..... (&) that the judge erred in law in rejecting the application of that doctrine. "

Regarding whether the explanation was adequate the statutory obligation is expressed in economical terms the union must provide information as to how it arrived at the figures it has provided to the employer but there is no obligation to provide information about how it keeps its records, to state how reliable those records are or how frequently they are updated.

As to how reliable any figures given must be Lloyd LJ of the Metrobus case was quoted (para 111) that given the lack of information in some union records, "there may well be a need for some explanation in order that an employer should be able to understand something about the degree of reliability of the data supplied." The Court of Appeal added, "Something, but not necessarily very much".

Mr Béar QC for the employer also complained that ASLEF's approach to these issues is formulaic, giving the same words regarding a large number of strike ballots and thus supposedly not providing a proper explanation of how the particular figures in a particular strike are obtained. The Court rejected this as, "lists and figures will perforce be essentially the same on each occasion" and that as per Maurice Kay LJ in Metrobus, "I do not accept that the formulaic response demonstrates a failure to comply with the statutory obligation."

The union's explanation stated that the information had been derived from the union's database saying when the records were updated for the purpose of the statutory notification and balloting requirements. The union did not identify how the updating procedure was carried out, but as it had no obligation to do so the judge misdirected himself as to the specificity required.

The employer also took issue with the union's incorrect use of language in saying that the figures had been "audited" which involves something above the usual updating of records but here just involved a further check specifically for the ballot. Judge Elias in the unanimous judgment said that, "the union officials providing it are not drafting a statute, and nor are they required to use undue precision or accuracy in their use of language. In my view the courts should not take the draconian step of invalidating the ballot, thereby rendering the strike unlawful, simply because the term used to describe a particular process is infelicitous. In my judgment the description of the process undertaken would have to be positively and materially misleading before the explanation could be said to fall short of the statutory requirement.......I do not accept that it was positively misleading to describe the process as an "audit", albeit that it was not the most appropriate term. The update itself is a rudimentary form of audit. In London Underground Limited v ASLEF [2011] EWHC 7 Holroyde J commented that where, as here, there was a ballot-specific review and updating of the ASLEF database in addition to the usual updating, the phrase "auditing and updating" was a fair description, albeit not the best description, of that process. I agree with that observation. The phrase was not so inapt or misleading as to justify the conclusion that it defeated the statutory purpose. In my view the judge (Ramsey)adopted too rigorous an approach to the interpretation of the explanation......There is no statutory duty to provide an audit, or to update the figures, and therefore no obligation to state whether that has been done or not. There is only the obligation to explain how the lists and figures were reached. If a union explains that this was done by reference to its records but at the same time innocently gives inaccurate information which it is not obliged to give about the state of those records, I doubt whether that the error will put it in breach of its statutory obligation."

An injunction was approved similarly against the RMT by Tugendhat J in the High Court against employees on the Docklands Light Railway who ruled figures in both the ballot and the strike notices were inadequate as they failed to show what had been done, when and by whom. Lloyd LJ in the Metrobus case was used in support of this. Tugendhat J also believed that an additional statutory purpose for the notification provisions existed, of helping the employer to assess the reliability of the figures in order to help the employer decide whether to seek an injunction. The explanation given frustrated that objective leaving the employer in doubt whether the figures could be relied on. The Court of Appeal rejected this saying, "Parliament does not typically impose statutory obligations for that reason." And in any case, an employer knowing "who did what and when - would in truth have done little to comfort the employer as to the reliability of the raw data the company were given".

Tugendhat J said that the union had described the ballot notice as having been audited was inaccurate and was a material error invalidating the ballot.

As with ASLEF and Ramsey J, and for substantially same reasons the Court of Appeal found that Tugendhat J had erred in the RMT decision.

There is no statutory obligation requiring the union to use any particular category of jobs, and therefore there is no obligation to adopt the categories used for pay purposes. The only obligation on a union giving statutory notices is, unlike job breakdowns used in pay negotiations, to provide numbers by reference to general job categories (Westminster City Council v UNISON [2001] IRLR 524).

Both RMT and ASLEF's appeals succeeded with injunctions lifted by unanimous decision.

Cases referred to: American Cyanamid v Ethicon [1975] AC 396 ('balance of convenience' test for interim injunctions);     Blackpool and Fylde College v National Association of Teachers in Further and Higher Education [1994] ICR 648 the Court of Appeal - a union had to reveal the identity of members taking part in the ballot(1999 amendments to TULRCA have changed this);      British Airways plc v Unite (no.1) [2010] IRLR 423;     British Railways Board v National Union of Railwaymen [1989] IRLR 349 (de minimis meant "trifling errors should not be allowed to form a basis for invalidating the ballot) ;     Energy Powerlink Ltd v National Union of Rail Maritime and Transport Workers [2010] IRLR 114 the union was not limited to deriving information solely from existing documentary records otherwise it would be encouraged to record minimal information - this decision is overturned by this case;     Dimbleby and Sons Ltd v National Union of Journalists [1984] ICR 386 (HL);     Express Newspapers v McShane [1979] 1 WLR 390, 395;     Hadmor Productions Ltd v Hamilton [1983];     House of Lords in P v National Association of Schoolmasters [2003] ICR 386 - two teachers not sent the ballot paper and therefore not given an opportunity to vote had been entitled to vote and therefore the section 232B defence was applicable, thus saving the ballot;     London Underground v National Union of Rail, Maritime and Transport Workers [2001] ICR 647 (Court of Appeal )- the union had to compile information from its records and from those individuals responsible for maintaining records, a more onerous duty than simply providing a list of names. This decision was reversed by the Employment Relations Act 2004.     Metrobus v Unite the Union [2010] ICR 173;     Network Rail Infrastructure Ltd v The National Union of Rail, Maritime and Transport Workers [2010] EWHC 1084;     NWL v Nelson and Laughton [1979;     RJB Mining (UK) Ltd v NUM [1997] IRLR 261)- a union is not expected to achieve 100% perfection in the conduct of ballots such as these... has the protection of the de minimis rule and the test of reasonable practicability (see British Railways Board v NUR);     Westminster City Council v UNISON [2001] IRLR 524 - The only obligation on a union giving statutory notices is to provide numbers by reference to general job categories;    

© 2011 Workrep