Law on Balloting and Industrial Action

There is not, nor has there ever been, a right to strike or take other industrial action in this country. In common law industrial action is potentially illegal and the main issue has been around the legalisation of industrial action through statutory immunity. [1]

The Trade Disputes Act 1906 brought back the immunities from the 1870s. Unions became weaker due to their inability to control their members and, when industrial action increased, the reasoning behind legal immunities was questioned. [2] However, the immunities still exist in our legislation today.

After the Conservatives came into power in the late 1970’s they introduced the law on balloting under the Trade Union Act 1984 which has since been subject to amendments. In order to assess how far the law on balloting democratizes or inhibits the taking of industrial action this paper will look at the background to the law on industrial action, examine the current legislation on balloting and associated case law, both domestic and international.

2. Background to industrial relations law in the United Kingdom

The collective organisation of workers has long been opposed under common law with the corporative system regulating the labour market until the mid 18th century. This system effectively outlawed strikes. [3]

While it is apparent that employers had the upper hand there was concern about the pressure that could be brought to bear by workers if they came together collectively so entering into certain types of agreement was made a criminal offence in an Act of 1720. [4]

The court in Hornby v Close [5] held that trade unions were unlawful associations where they became engaged in activities that were seen as restraint of trade. However, with the legal foundation for collective bargaining being set down by the legislation that came into force in the 1870s, which included the enactment of the Trade Union Act 1871 that legalised unions in so far as they were no longer deemed unlawful in civil or criminal law simply because they were in restraint of trade, [6] more importance was placed on immunities. Economic torts expanded through case law with the tort of inducing breach of contract being committed by trade unions if they called their members out on strike and the tort of conspiracy applied where unions persuaded employers not to take on workers who did not belong to a union. Two decisions by the House of Lords in 1901 had the impact of making unions almost totally unable to take lawful industrial action. [7] The legislation during this period, which set about removing legal intervention that had restricted union affairs, culminated when tortuous liability was covered by the Trade Disputes Act 1906.

During the World War II industrial disputes were forced to go before an arbitration panel thereby effectively banning strikes. [8] However, the prohibition on strikes and lock outs was later removed. [9] The Trade Disputes Act 1965 extended the unions protection even further. This Act had the effect of reversing the decision in Rookes v Barnard [10] which saw the immunity against legal action for inducing or threatening breach of contracts removed. As the unions thought that they had freedom of collective bargaining, which had been confirmed by the Trade Disputes Act 1906, the decision was seen as an attack on this freedom. [11]

In the 1960s the relationship between the unions and the government started to deteriorate and the growth in union membership was largely a reaction to the government policies on wages and prices. It was not until the Conservative Government came into power in 1979 that there was a reform of the law on industrial relations which transformed the legislation in this area. [12] The Conservative Government set about introducing major restrictions on trade union power.

3. The law on balloting

The requirement of a ballot for lawful industrial action, previously proposed by Labour in a White Paper, [13] was enacted under the Trade Union Act 1984, [14] with the aim of this obligation being to give members the democratic right to vote for or against industrial action. Since the introduction of this Act a large number of actions brought by employers against unions have related to the strike ballot provisions. [15] In order to consolidate the law on trade unions the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) was introduced. However it was not long before amendments were required which included changes to the balloting process. When the Labour Government came back into power in 1997 the intention was to simplify the law in this area. However, this did not go according to plan due to the judicial interpretation in a number of cases including London Underground Ltd v Nation Union of Rail, Maritime and Transport Workers [16] and National Union of Rail, Maritime and Transport Workers v Midland Mainline. [17]

3.1 Industrial torts and the meaning of a trade dispute

When a union calls on its members to take official industrial action it could be committing an ‘industrial tort’. [18] However, immunity can be established under s219 of TULCRA provided the ‘golden formula’ [19] applies in which case industrial action is lawful and the tort [20] is committed to progress a trade dispute. The meaning of a trade dispute, which must relate “wholly or mainly to” one or more of the list of items set out in s244(1)(a) to (g), was examined in Unison v UCLH [21] in relation to the objection to a transfer under the Transfer (Protection of Employment) Regulations 1981. The Court of Appeal held that the dispute did not full under the definition of a trade dispute as it related to terms and conditions of employment that would apply after the transfer. However, to the contrary, two years later in Westminster City Council v Unison, [22] the Court of Appeal held that there was a trade dispute as the identity of the employer is a term of employment under s244(1)(a) so this was clearly a trade dispute. The Court of Appeal decisions in these cases highlighted the necessity for unions to make it clear that the dispute is about employment issues that fall within the list in s244(1). A trade dispute was also found to exist in P v National Association of Schoolmasters/Union of Women Teachers [23] when teachers took industrial action after refusing to teach a certain pupil that the head teacher had instructed them to teach. [24]

3.2 Eligibility to vote

For immunity to apply certain other requirements must be met such as the proposed action being supported by a secret postal ballot [25] of relevant trade union members and the planned action being supported by the majority. [26]

The cost of a postal ballot can be quite onerous particularly where large numbers of members are being balloted. [27] To add to this issue there are the complexities of the legal requirements on balloting [28] with employers taking the opportunity to seek interim injunctions to halt industrial action. In some instances injunctions are overturned on appeal. However, by the time an appeal can be heard the dispute has most likely lost momentum and given the employer the opportunity to try and resolve the matter.

When the question arose as to whether members joining a union after a ballot had taken place could be induced to take industrial action Lord Donaldson took a narrow view in an obiter statement [29] in Post Office v Union of Communication Workers. [30] However, a broader view was taken later the result of which was that any new union members joining after a ballot has taken place can be induced to join in with the action provided all eligible members were included when the ballot first took place. [31] The rationale behind the decision of Millet LJ in the later case appears to be a much more logical interpretation of s277.

When identifying members to be balloted the law allows for ‘small accidental failures to be disregarded’ [32] if they are unlikely to affect the result of the ballot. However, unintentional errors will not necessarily be accidental. [33]

3.3 Notice to employers

The notice requirements that came into force under the Trade Union Reform and Employment Rights Act 1993 only served to add to the complexity of the law until another attempt to simplify the legislation was made in the Employment Relations Act 2004. [34] Once the requirements of the balloting process have been met and industrial action has been voted for by the majority the union must notify the employer within certain time frames and provide them with specified information under s234A(3). It could be argued that this affords the employer the opportunity to make arrangements to cover the jobs of those who are to be involved in industrial action. While this might appear helpful to the employer under Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations 2003 agencies are prohibited from providing agency workers to clients where the purpose is to replace workers taking part in any official industrial action. [35] Employers have had to use other methods to reduce the impact of industrial action such as retraining other staff [36] which will inevitably cause pressures or incur costs in other areas of the business. In Willerby Holiday Homes Ltd v UCATT [37] this is just one of the sections that the union had been found to breach. Despite warning letters sent on behalf of the employer the strike took place and resulted in the union having to pay damages. One has to ask why the employer did not seek an injunction. While they were awarded damages, the strike itself may have done more damage to the business than was recouped through the financial award.

The union must advise the employer of the date(s) action will take place and whether it will be continuous. In Milford Haven Port Authority v Unite the Union 2010 [38] an injunction was originally granted as the union’s notice of action stated that there would be continuous and discontinuous action. Section 234A (3)(b) of TULCRA makes it clear that the relevant notice must state ‘whether the industrial action is intended to be continuous or discontinuous’. However, the Court of Appeal held that one notice can be issued for both types of action provided the notice is clear. It is suggested that in light of the wording of s234A(3)(b) the decision is likely to cause even more confusion.

3.4 Communication of ballot results

Once the ballot results are known, there are further requirements that the union have to fulfil when notifying their members and the employer of the results as well as ensuring that the information is communicated as soon as it is reasonable and practical to do so. In Metrobus Ltd v Unite the Union [39] the Court of Appeal held that the union could have done more to ensure that the results were communicated earlier. [40] Clearly any unnecessary delay in notification to the employer is a hindrance in terms of the employer’s ability to make alternative arrangements to minimise the impact of industrial action.

Communication of ballot results was also the subject of an interim injunction on the ground that the union had not made its members aware of the result of the ballot in the right way in British Airways v Unite the Union. [41] It should be noted that there is no specific method of communicating the result of ballots set out in s231 of TULCRA and, in this case, the Court of Appeal took a more practical approach when it found that the strict tests on the method of communicating the outcome of ballots would not only be unrealistic but would threaten to undermine the limited rights that workers have if they wish to take industrial action. This was contrary to an earlier decision [42] where the focus had been on active steps taken. However, while the decision was deemed appropriate in that case it was not appropriate in British Airways due to the dispersement of the workforce. As s231 has absolutely no impact on the employer and is for the protection of union members, it is an example of how employers can use the law against unions; surely the use of this section in this way cannot have been the intention when the legislation was draughted. Not content with the outcome British Airways appealed the decision which was due to be heard in March 2011.

3.5 Interlocutory injunctions

As above, employers may try to stop industrial action going ahead by seeking injunctive relief. The main points under consideration when an injunction is sought are the strength of the case, where the balance of convenience lies and whether an award of damages would be sufficient compensation. [43] While it can be difficult to quantify the loss to the employer

in financial terms and there is a limit on damages awarded against unions [44] it is likely that there will be instances where damages would be insufficient. [45] Needless to say, the balance is likely to be heavily weighted in favour of the employer due to the damage that could be caused to the business, not to mention claims that could be brought by suppliers and customers [46] as well as members of the public.

When an injunction was sought in National Union of Rail, Maritime and Transport Workers v Midland Mainline Ltd [47] the union appealed the decision as they wanted guidance on the conducting of pre-strike ballots and clarification around the interpretation of s227(1). The union’s policy of not balloting members who were in arrears was brought into question as the union could not show that the pre strike procedures would give them immunity. This case raises the question on the contents of unions’ policies as clearly in this instance the union was left exposed.

Injunctions can also been granted against named and unnamed individuals as well as unions as in Gate Gourmet Ltd v Transport and General Workers Union and ors. [48] In this instance the unions did not act in time to repudiate the unofficial industrial action that was supported by some union officials. As a result numerous employees were dismissed and one has to wonder if they were fully aware of the consequences of their unofficial action or had assumed that they were protected due to the involvement of union officials. Those dismissed may have included individuals who reported in sick to avoid the unpleasantness on the picket lines.

In a recent important decision by the Court of Appeal [49] Elias LJ considered some decisions by the courts which appeared to suggest unions needed to strictly conform with the notification requirements of TULCRA or risk injunctions being granted against them. The judgement in these appeals indicates that a less strict approach will be taken in future and employers may find it more difficult to get injunctions.

4. Impact of the European legislation on the right to strike

More recently it has become arguable that there is a right to strike under UK law although the right comes indirectly via the Human Rights Act 1998 s3 and Article 11 of the European Convention on Human Rights (ECHR). Following the reasoning on collective bargaining in Demir and Baykara v Turkey [50] it was extended to cover collective industrial action in Enerji Yap-Yol Sen v Turkey [51] even though this rejected previous case law. [52]

European Court of Human Rights (ECtHR) case law was recently considered when it was claimed that the balloting requirements were so complex that they amounted to an unlawful restriction on the union and its members under Article 11. [53] Unfortunately the union’s argument was rejected despite decisions of the ECtHR. A submission that s226A should be read in relation to s3 HRA 1998 thereby giving the right to strike, as protected by Article 11 of the ECHR, was similarly rejected in EDF Energy Powerlink Ltd v RMT [54] and the RTM are waiting to see if they can apply direct to the ECtHR. While it appears that the UK courts are not fully taking on board developments in the EU it must surely be only a matter time before their hand is forced.

5. Proposals for the future of industrial relations

Resolutions were passed at the Trade Unions Congress and the Labour Party conferences during 2005 to call for an introduction of a Trade Union Freedom Bill as a move in the right direction towards getting a balance of power in workplaces. It was proposed that the balloting rules are so complex that they make compliance almost impossible and that radical revision is required. [55] However, the opposite was view was taken by the Court of Appeal in Metrobus Ltd v Unite the Union. Other proposed amendments included changes to the pre-ballot and pre-industrial action notices due to the burden on unions to keep meticulous records of their members details which, it is suggested, should be replaced by simplified notices. The Bill [56] had its first reading in the House of Commons in December 2006. However, it did not progress any further.

Four years later, the CBI also having recognised the need for reform, made recommendations to minimise disruption to customers and the general public, curb wildcat action and to ensure that the views of employees were heard. [57] Needless to say many of the recommendations conflicted with the proposals under the Trade Union Rights and Freedoms Bill. The recommendation of an employers’ ability to use agency workers in place of striking workers would, if enacted, appear to make industrial action more or less pointless.

It has also been suggested that an alternative could be a constitutional settlement that aligns with EU and ILO standards giving positive rights and responsibilities to trade unions. [58] If this could be achieved current legislation could be repealed and replaced with a fairer legal framework on industrial relations law. This would be a major task and one has to wonder whether there would be the appetite for it. Given the conflict between the proposals in the Trade Union Rights and Freedoms Bill, the views expressed by the CBI and the UK’s apparent disregarded for the ILO standards, it seems unlikely that such a constitutional settlement would be agreed.

More recently David Cameron, having shown concern about industrial action against public spending cuts, has suggested that the law on industrial action should be tightened to stop a ‘wave of irresponsible strikes.’ [59] It seems possible that strikes in relation to public spending cuts could trigger further amendments to the legislation on industrial relations.

6. Conclusion

It is clear that the changes in industrial relations law over the years since unions were first legitimised under the Trade Union Act 1871 have put trade unions in a state of flux on many occasions. Much trade union activity can be seen as a reaction to Government policy.

While the Conservatives introduced legislation which placed major restrictions on trade union power during their time in office between 1979 and 1997, their aim in introducing the law on balloting was to give union members a democratic right to vote for or against industrial action. However, the balloting provisions are so complex that unions have been subject to injunctions for failing to comply with them although the recent decision indicates that a less strict approach may be taken in future. Even when unions have been successful in getting injunctions overturned, usually the momentum is lost.

While it is true that there is democracy in the sense that union members can vote, the reality seems somewhat different as it appears, that in practice, the law inhibits the taking of industrial action. This is not to say that many unions have not been able to take official industrial action, rather that there are so many ways in which a union can fall foul of the requirements of the legislation that it detracts from the ability to take industrial action. Indeed, it was acknowledged in British Airways v Unite the Union above that a strict test on communicating ballot results could undermine limited rights that workers have if they want to take industrial action.

If, as David Cameron has hinted, there is to be a change in legislation and were the CBI recommendations to be put into place, it appears that there would be little point to industrial action with the balance of power firmly back in the hands of employers.

However, due to recent decisions at the ECtHR it seems likely that it is only a matter of time before the right to strike is enabled in domestic law but the question is how effective will it be?