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It is now some 30 years since the then Conservative government first proposed that the availability to trade unions of the trade dispute defence to the economic tort liability for inducing breach of contracts of employment should be confined to cases where the union had secured the support of a majority of those voting in a ballot of its members on whom it intended to call to take industrial action.1 The legislation which gave effect to this proposal, originally Part II of the Trade Union Act 1984, has been the subject of regular legislative amendment both before and after its consolidation in sections 226–235 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). As a result, what was originally two sections in the 1984 Act has expanded into a tortuous body of law in 18 sections of the 1992 Act which have since 1996 been accompanied by a Code of Practice issued by the Secretary of State, the current third version of which took effect in 2005.2 The need to secure majority support in a ballot which satisfies the detailed legislative prescription which is laid down now qualifies the applicability of all the ‘golden formula’3 defences to economic tort liability. As a consequence, the substance of employers’ applications for labour injunctions to restrain unions from proceeding with proposed industrial action almost invariably now focuses on compliance with the legislative prescription for a valid ballot. The tortious character of the union’s action in calling on its members to take industrial action is generally assumed for the purposes of interim (formerly interlocutory) proceedings in which labour injunction proceedings are heard.4 There is now an extensive body of jurisprudence on the requirements which an industrial action ballot has to satisfy in these proceedings. Recent litigation discloses not only, on the one side, the extensive resources devoted by unions to the conduct of ballots but also, on the other side, the ingenuity of employers’ legal advisers in seeking arguments sufficient to persuade a judge in that they satisfy the standards set for interim relief by way of the labour injunction (which will almost always dispose of the case). In addition to that already noted in this Journal,5 an important, authoritative exposition of the central features of the appropriate judicial response to labour injunction applications was provided by Elias LJ at the beginning of his judgment in the Serco case.6 The influence of this approach is reflected in two recent first-instance decisions, London Underground Ltd (LUL) v ASLEF and Balfour Beatty Engineering Services Ltd v Unite, in which employers’ applications for labour injunctions failed.7 These decisions, however, also include matters which may give rise to some concern both at the level of identifying with clarity the procedures which unions must follow in organising industrial action ballots and, perhaps more fundamentally, possibly calling into question whether the current legislative blueprint can accommodate all the industrial action which trade unions may wish to pursue as part of their strategy in particular disputes. Although greater attention is perhaps inevitably now focused on the detail of issues raised concerning unions’ compliance with the legislative prescription for a ballot, the importance of judges following the correct approach in deciding labour injunction applications requires emphasis. In Serco, Elias LJ noted that the generally applicable test for deciding applications for interim (formerly interlocutory) injunctions laid down by the House of Lords in the Cyanamid case in 1975 had been held to be inappropriate in labour injunction cases by the Law Lords in NWL Ltd v Woods in 1979.8 The principle adopted in that case—that it is incumbent on the courts to have regard to the underlying merits of the claim including whether the union would be likely to establish that one or more of the ‘immunities’ or trade dispute defences applied—is now, he said, contained in section 221(1) of TULRCA. Only in a very exceptional case should an injunction be granted in the face of the likelihood of a trade dispute defence succeeding.9 In both LUL and Balfour Beatty, Eder J and Eady J respectively referred to these points on the correct judicial approach to employers’ applications for labour injunctions. In LUL, Eder J made explicit that as a consequence the court was not concerned with the merits of the dispute; neither was it concerned with the balance of convenience between the parties or the convenience of the public.10 In Balfour Beatty, in an unusually explicit reference to this central issue in the determination of labour injunction applications at the opening of his judgment, Eady J not only cited Elias LJ’s judgment in Serco but added that, at least since the Human Rights Act 1998, it was appropriate to construe statutory provisions in a way that was compatible with rights contained in the European Convention of Human Rights; since the European Court of Human Rights had recognised the right to strike as part and parcel of the right to freedom of association in Article 11 of the Convention, ‘a presumption of adverse construction would be inappropriate’.11 While this may give some encouragement to advocates of a much greater influence for the European Court of Human Rights’ jurisprudence on the outcome of domestic litigation which raises the issue of the right to strike—as labour injunction applications necessarily do—he concluded his observations on this issue by citing both Lord Bingham in P v NASUWT on giving the provisions of TULRCA a ‘likely and workable construction’12 and the Court of Appeal decision in Metrobus v Unite in support of interpreting the legislation on industrial action ‘in accordance with our normal canons of construction and without the need to have resort to Article 11’.13 The two decisions contribute further additions to the extensive body of case law on the detail of the obligations imposed on trade unions by sections 226–235 of TULRCA. Prima facie liability for one of the economic torts and (usually) the applicability of one of the golden formula defences in TULRCA section 219 is generally assumed, at least for the purposes of argument, in employers’ labour injunction applications. The disputed issue for resolution by way of interim judgment is the adequacy of the steps taken by defendant trade unions to comply with these sections interpreted with the assistance of the Code. Three issues of general interest beyond the particular facts of the two cases merit some comment. The first concerns the balloting constituency: who does the union have to ballot in order to satisfy the legislative prescription? In the case of a proposed indefinite strike or work to rule, the answer may be clear cut: all the members on whom the union intends to call to take part. Difficulties of interpretation arise where the planned action is interrupted or is non-continuous, for example a sequence of 24-hour strikes, possibly followed by longer stoppages or an overtime ban which might be similarly intermittent or continuous.14 In the recent Scottish case, United Closures and Plastics v Unite, the Outer House of the Court of Session rejected the employer’s submission that in a dispute over changes to the shifts and wages of workers in the metals and plastics department, only union members whose terms and conditions would be affected by the changes should have been included in the ‘lists and figures’ which sections 226A and 234A require the union to provide for the employer of those members who are to be balloted (section 226A) and, after a majority vote in support of industrial action, those members who will be called on to take action (section 234A). Linking the balloting constituency and then the category of members induced to take industrial action in this way would, it was held, be inconsistent with the definition of a trade dispute in section 244 of TULRCA which included a dispute relating to the terms and conditions of any worker.15 The facts of LUL v ASLEF raised a similar issue in relation to the appropriate ‘constituency’ of members to be balloted. LUL and ASLEF had been in dispute for some time over payments to drivers for working on Boxing Day, the public holiday on 26 December. In November 2011, ASLEF balloted all its approximately 1,950 train operator and instructor operator members employed by LUL; of the 998 members who voted in the ballot, 920 supported strike action. LUL challenged the validity of the ballot on the ground that, since only some 480 ASLEF members were rostered to work on Boxing Day in 2011, the ballot should have been confined to these members. Eder J gave three reasons for rejecting this submission. First, the ostensible policy of requiring industrial action to have a democratic mandate begged the question as to the relevant constituency and it did not follow that it should be limited to those withdrawing their labour in breach of contract on a particular day.16 Second, section 227 required the union to ballot those who would be induced to ‘take part’ in the proposed industrial action, not ‘take’; this was, in his view, a strong indicator that it should not be limited to those who would actually withdraw their labour in breach of contract but extended to others who would take part in the action.17 Although he did not spell out how workers can ‘take part’ in industrial action at times when they cannot ‘take’ industrial action because they are not scheduled to be working, picketing, attending meetings and related activities associated with the proposed action both ought to be and would seem to be covered. Third, Eder J found support for his decision on this point in the reasoning of Scott J giving the judgment of the Employment Appeal Tribunal in Bolton Roadways v Edwards in 1987.18 This case concerned the ‘victimisation’ exception to the exclusion from the right to make a complaint of unfair dismissal of employees who were taking part in industrial action at the time of their dismissal; this exception preserves the right to make a complaint of unfair dismissal in situations where one or more of those who took part in the industrial action was not dismissed.19 The industrial tribunal had held that this exception applied where a lorry driver who, having driven through a picket line of other drivers, later joined it and told the pickets that he supported their action and, like them, was sent notice of dismissal, but in his case this notice was rescinded when he phoned in to say that he was sick. In upholding this decision, Scott J expressly distinguished ‘taking part in a strike’—which the reinstated driver had been—from being ‘on strike’—which, at the time of the dismissal of the other drivers, he was not because he was then recorded as off sick. Eder J’s decision clearly aligned one aspect of the legal obligation on a union to hold an industrial action ballot with the realities underlying the issue in dispute in that case; all train drivers who could be rostered to work on Boxing Day and not just those rostered to work on that day in 2011 were parties to the trade dispute.20 It is, however, questionable whether decisions on jurisdiction in unfair dismissal claims by employees dismissed while taking part in industrial action should be relied on in determination of the separate issue of entitlement to vote in an industrial action ballot. In some cases the distinction between inducing members to ‘take’ rather than ‘take part in’ industrial action might be argued to require a wider constituency than those members on whom it intended to call to strike or take other industrial action. Unions can legitimately argue that, provided they satisfy the requirement of acting in contemplation or furtherance of a trade dispute, which of their members they may decide to call on to take industrial action—and whom they therefore need to give the opportunity to vote in a ballot—is a matter for them to decide. The Balfour Beatty case raised a different issue which is also central to aligning the statutory obligations imposed on a union in holding an industrial action ballot with the realities of union organisation. Section 227(1) of TULRCA provides that entitlement to vote must be accorded to all members whom it is reasonable at the time of the ballot to believe will be induced to take part in the industrial action. Section 230(2) requires all such members to have a voting paper sent to them at their home address and a convenient opportunity to vote by post; both these obligations are subject to the small accidental failures disregard in section 232B. The central issue in Balfour Beatty was the adequacy of the action taken by Unite to comply with these obligations.21 Eady J’s judgment records in some detail the steps taken by Unite to verify the information which it held on its membership among the relevant category of workers; they involved some 500 hours of staff time. In rejecting Balfour Beatty’s submission that more should have been done by Unite, including asking it, the employer, for information, Eady J relied on the Court of Appeal decision in Serco as authority for the proposition that union officers ‘will not ordinarily be expected to set up detailed inquiries and investigations before attempting to comply with the statutory ballot disciplines required by ss 226–230 of the 1992 Act. In general terms they will be entitled to base themselves on the information in their possession without having to ensure that this is actually definitive.’22 While ‘reasonable practicability’ clearly introduced an objective test, there needed to be room for union officers to exercise their own judgment about what were the appropriate steps to take in a given situation.23 It might be said that Balfour Beatty provides the clearest reported demonstration of the wide gulf that separates the rhetoric behind the introduction of legislation on industrial action ballots and the reality underlying the legal challenges to trade unions’ calls on members to take industrial action which are made by employers on the ground of failure to satisfy the statutory prescription for ballots and associated notices to employers. Industrial action ballots were proposed and at least originally enacted as a measure that would enhance democracy in trade unions.24 The expectation was that union members would generally be reluctant to take industrial action and would vote accordingly; to the extent that this was so, the incidence of strikes would be reduced. In practice, frequent amendments have been made to the legislation on ballots in part in response to employers’ concerns that members’ support for union claims registered in ballots was strengthening unions’ bargaining position.25 The outcome is a complex and convoluted set of statutory provisions supplemented by a code of practice which, whatever merits they may have, fail to bring certainty in relation to the disputed issues that arise. Before Elias LJ’s recent exposition of the correct judicial approach to labour injunction proceedings where these issues arise, the judgment of Millett LJ in the 1996 litigation between London Underground and RMT was perhaps the most explicit demonstration of a judicial attempt to make the legislation fit in with the realities of working life.26 There have been some other judicial observations pointing in this direction, notably in P v NASUWT where, in addition to Lord Bingham’s assertion of the need for the balloting legislation to be given a likely and workable construction, Lord Walker’s recognition of the impossibility of a union ever knowing its exact membership, either generally or within particular large employers on a given date, is pertinent.27 The recent resumé of the state of the law and general exposition of the appropriate judicial approach to questions concerning its observance which arise in labour injunction proceedings by Elias LJ in Serco28 may be as much as can be expected by way of judicial formulation of an appropriate approach for the courts to take to issues concerning compliance with the balloting legislation that arise in labour injunction applications. The latest LUL and recent Balfour Beatty decisions at least provide some indication of a positive response to this recent judicial guidance from the Court of Appeal. But they are necessarily limited in the scope of the issues considered, and when placed in the context of other recent decisions,29 it would be unwise at present to note them as reflecting a significant change in the nature of the general judicial response to labour injunction claims.
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