Industrial action ballots and notices to employers

We consider imminent changes intended to simplify the law on industrial action ballots.

"Our amendments seek to make the situation easier for trade unions and employers. Our approach will ensure that both parties can concentrate on resolving a dispute, rather than being bogged down in detailed discussions about whether the complexity of the present procedures has been followed in all its forms."

(Secretary of State for Trade and Industry, Stephen Byers, at Report Stage of the Employment Relations Bill, 30.3.99, Hansard (HC), col. 988)

In its Fairness at Work White Paper1, the Government stated that the existing legal provisions governing industrial action ballots and notices were "unnecessarily complex and rigid", and thus in need of reform.

Those provisions are part of a convoluted statutory structure that determines the ability of (in this case) trade unions to call for and organise lawful industrial action "in contemplation or furtherance of a trade dispute", and which confers on the organiser(s) of such action a limited immunity for certain tortious civil wrongs that may be committed (see the box in Unfair dismissal of striking workers for a recent synopsis of the position. A more detailed account can be found in Industrial action 3: Civil liabilities and immunities).

Accordingly, s.4 and Schedule 3 to the Employment Relations Act 1999 ("the 1999 Act") will, when brought into force2, make a number of amendments to the relevant part (that is, Part V) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the TULR(C)A") intended to simplify and improve understanding of and compliance with that legislation. As a further consequence, a draft revised Code of Practice on Industrial Action Ballots and Notice to Employers ("the draft revised Code") has been published for consultation3. This reflects both the prospective legislative changes, and the Government's wish to make the existing 1995 Code "easier to understand and more concise".

Our feature summarises the most significant of the new provisions, most of which are "relatively technical"4 and none of which affect the basic principle that industrial action must be supported by a valid ballot if it is to be lawful.

Information in ballot notices

It will remain the case that, not later than the seventh day before the intended opening day of an industrial action ballot (that is, the first day on which a voting paper is sent to any person entitled to vote), a trade union must supply written notice of the ballot to any employer that it is reasonable for the union to believe will be the employer of any of its members who will be entitled to vote. That notice must state that the union intends to hold the ballot, and specify the date the union reasonably believes will be the opening day of the ballot (see generally s.226A of the TULR(C)A).

At present, that notice must further contain a description of "(so that [it] can readily ascertain them) the employees of the employer who it is reasonable for the union to believe [at that time] will be entitled to vote in the ballot" (s.226A(2)(c)). According to the Court of Appeal in Blackpool & Fylde College v NATFHE5, this could "only mean that the union must, by specifying a category or by naming individuals or by a combination of the two, enable the employer readily to ascertain which of [its] employees are to be balloted, and subsequently to be called upon to take the relevant action" [our emphasis].

The Government recognised that unions may be reluctant to disclose individual names against the wishes of members, and it agreed that they should not be forced to do so6. Therefore, as amended, s.226A(2)(c) will instead require the notice to contain "such information in the union's possession as would help the employer to make plans and bring information to the attention of those of [its] employees who it is reasonable for the union to believe [at that time] will be entitled to vote in the ballot". In particular, the notice must at minimum contain any information possessed by the union "as to the number, category or workplace of the employees concerned", but a notice will not fail to satisfy these requirements simply because it does not name any individual employees (see the new s.226(3A)).

An identical change is to be made in relation to the contents of the seven-day written notice of industrial action following a ballot which must be given to the employer(s) of persons who the union reasonably believes it may call upon to take action (see generally s.234A of the TULR(C)A). Such a notice will consequently be required to contain "such information in the union's possession as would help the employer to make plans and bring information to the attention of those of [its] employees whom the union intends to induce or has induced to take part, or continue to take part, in the industrial action" (s.234A(3)(a) as amended), with the same provisions as to minimum required information and protection of named individuals applying (see the new s.234A(5A)).

The draft revised Code suggests that the "plans" that an employer might wish to make could include: "[warning its] customers of the possibility of disruption so that they can make alternative arrangements; or to take steps to ensure the health and safety of his employees or the public; or to safeguard equipment which might otherwise suffer damage from being shut down or left without supervision."

At the Committee stage of the Employee Relations Bill ("the ERB") in the House of Commons, the Government submitted7: "If a union tries to provide misleading information ... by exaggerating or concealing the number of employees involved, the employer can challenge the notice. If the case were to be proved, the ballot would be invalidated. Of course, a union cannot guarantee the accuracy of the information provided; it will be limited by the information at its disposal. However, if it were proved that the union has deliberately misrepresented the information that it had, the ballot could be invalidated."

Sample ballot papers

No less than three days before the opening day of the ballot, the union must supply a sample voting paper (and a sample of any variant of that voting paper) to any employer who it is reasonable for the union to believe will be the employer of those who will be given entitlement to vote. Where more than one employer's workers are being balloted, it will in future be sufficient to send each employer a sample only of the voting paper or papers that will be sent to its workers (see a new s.226A(3B) of the TULR(C)A).

Content of ballot paper

The content of the ballot voting paper is to be amended in two respects:

  • on the question or questions that must be contained on the voting paper asking whether the voter is prepared to take part in a strike and/or industrial action short of a strike, it will be provided that "an overtime ban and a call out ban constitute industrial action short of a strike" (see a new s.229(2A) of the TULR(C)A). This reverses the effect, for these purposes only, of the Court of Appeal's controversial decision in Connex South Eastern Ltd v RMT15.

  • ballot papers must already contain a statement warning employees that if they take part in a strike or other industrial action, they may be in breach of their contracts of employment (see s.229(4) of the TULR(C)A). The following words will in due course have to be added: "However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later." (See further Unfair dismissal of striking workers.)

    Certain failures to be disregarded

    Entitlement to vote in an industrial action ballot must, in principle, be given to all of a union's members who it is reasonable at the time of the ballot for the union to believe will be induced (whether or not that inducement will be successful) to take part in or continue with the industrial action, and to no others (see s.227(1) of the TULR(C)A). This has been described by the Court of Appeal an "absolute obligation" (see British Railways Board v National Union of Railwaymen8).

    In a pragmatic development, however, a new s.232B of the TULR(C)A will provide that if there is a failure (or failures) in this respect, and that failure is (or the failures are) "accidental and on a scale which is unlikely to affect the result of the ballot", the failure (or failures) must be disregarded and will not invalidate the ballot. This also applies to a failure (or failures) relating to the duty to ensure, so far as reasonably practicable, that those entitled to vote should have a voting paper sent to their home addresses (or any other address notified by them to the union as their "postal address"), and are given "a convenient opportunity to vote by post" (that duty is contained in s.230(2) of the TULR(C)A9).

    Broadly speaking, s.232B acknowledges the inevitable complexity and margin for error that is often involved in organising industrial action ballots10, and appears to be a slightly wider statutory form of the de minimis doctrine applied by the Court in British Railways Board v National Union of Railwaymen (above ). There, in the context of the forerunner of s.230(2), Lord Donaldson referred to "trifling errors which should not be allowed to form a basis for invalidating the ballot".

    Members who may be induced

    Subject to the above, a ballot is currently invalidated if "any person" who was a member of the union at the time of the ballot and was denied an entitlement to vote under s.227(1) is subsequently induced by the union to take part in the action (s.227(2)).

    This provision means that unions may lawfully induce new members who joined the union after the date of the ballot to take action without losing protection (see London Underground Ltd v National Union of Rail, Maritime and Transport Workers11). But it does not permit the union to induce, for example, persons who were members at the time of the ballot, but who changed their jobs after the ballot and became employed within the group of workers which the union is proposing should take industrial action12.

    To deal with such situations, s.227(2) will be repealed and effectively re-enacted in a new s.232A, which will additionally provide that protection is to be lost only if it was "reasonable" at the time of the ballot for the union to expect that the individual in question would be induced to take part, or continue to take part, in the action.

    Aggregating ballots across workplaces

    As the law stands, where the members of a union with different workplaces are to be balloted, a separate ballot will in principle be necessary for each workplace unless certain excessively technical conditions are met (see generally s.228 of the TULR(C)A). These conditions have been described by the Government13 as "opaque and highly restrictive".

    While the basic principle of separate workplace ballots will remain ("unless the union reasonably believes that all of [the members entitled to vote] have the same workplace" - see s.228 as amended by the 1999 Act), the conditions for holding aggregated ballots across some or all of the workplaces will be considerably simplified.

    It will thus be permissible to hold a single ballot for more than one workplace where:

  • at each of the workplaces covered by the single ballot there is at least one member of the union affected by the dispute; or

  • entitlement to vote in the single ballot is accorded, and limited, to all of a union's members employed in a particular occupation or occupations by one employer, or any of a number of employers, with whom the union is in dispute; or

  • entitlement to vote in the single ballot is accorded, and limited, to all of a union's members employed by a particular employer or any of a number of employers, with whom the union is in dispute (see generally the new s.228A of the TULR(C)A).

    For the purposes of the first of these conditions, the following are members of the union "affected" by a dispute:

  • if the dispute relates (wholly or partly) to a decision which the union reasonably believes the employer has made or will make concerning a matter specified in s.244(1)(a)-(c) of the TULR(C)A (including terms of conditions of employment, termination, and allocation of work), "members whom the decision directly affects";

  • if the dispute relates (wholly or partly) to a disciplinary matter specified in s.244(1)(d), "members whom the matter directly affects";

  • if the dispute relates (wholly or partly) to a worker's membership or non-membership of a trade union (within s.244(1)(e) of the TULR(C)A), "persons whose membership or non-membership is in dispute";

  • if the dispute relates to (wholly or partly) facilities for trade union officials (under s.244(1)(f) of the TULR(C)A), "officials of the union who have used or would use the facilities concerned in the dispute".

    The draft revised Code suggests that it follows from all of this, for example, that:

  • if the union is holding a single ballot at workplaces A and B, at both of which there are members affected by the dispute, and also wishes to organise industrial action in another of the employer's workplaces, C, at which none of the union's members is affected by the dispute, then the members at C must be balloted separately from those at A and B (unless either the second or third condition set out above is met, ie the members to be balloted at A, B and C are all of the union's members employed by the employer, or are all of the union's members employed in a particular occupation or occupations); and

  • if the union is holding a single ballot of all of its members employed by the employer in occupations X and Y at workplaces A and B and also wishes to organise industrial action by only some of a group of workers having a different occupation, Z, who work at any of the workplaces, then a separate workplace ballot must be held of those workers.

    Under the amended provisions, "workplace" in relation to a person who is employed will mean, if he or she works at or from a single set of premises, those premises, or (otherwise) the premises with which his or her employment has the closest connection (s.228(4) as amended). The current reference to "the premises occupied by his employer" will be dropped, thus dealing with some of the practical problems identified in cases such InterCity West Coast Ltd v RMT14.

    Informing employers of ballot result

    Before giving a seven-day notice to employers of intended industrial action under s.234A of the TULR(C)A, the union must have taken specified steps to notify the relevant employer(s) of the ballot result details (see s.231A). It will now be provided that where the workers of more than one employer have been balloted, a failure to provide the required ballot result details to a particular employer or employers will mean that if the union organises industrial action by the workers of that employer or those employers it will not have the support of a ballot. Such a failure will no longer have the potential to render unlawful action by workers of employers who have been properly informed, or vitiate the legality action as a whole.

    Note: Failures in relation to, for example, ballot notices (and sample voting papers) and industrial action notices similarly affect only the legality of the action in respect of the employer to whom the failure relates.

    Period of effectiveness of ballot

    If the inducement of industrial action to which a ballot relates is ultimately to retain legislative protection, some part of the action must be induced either (as is generally the case now) within four weeks from the date of the ballot (that is, the last day on which votes may be cast in the ballot) or, as a result of the imminent amendments, "such longer duration not exceeding eight weeks as is agreed between the union and the members' employer" (s.234(1) as amended - our emphasis).

    It would thus seem that where the ballot has included the workers of two or more employers, "the option of agreeing an extension is to operate separately in relation to each employer"16.

    Suspension of industrial action

    Where continuous industrial action is suspended, for example for further negotiations between the employer and union (see Monsanto plc v TGWU17 ), the union must normally give the employer a further seven-day notice under s.234A before resuming the action. However, when the revised provisions (in the form here of an amended s.234A(7) and new s.234A(7A) and (7B)) come on stream there will be no requirement to give such further notice before resuming industrial action which is suspended by agreement with the employer in closely circumscribed circumstances. These are:

  • that the union agrees with the employer that the industrial action will cease to be authorised or endorsed with effect from a date specified in the agreement but may be authorised or endorsed again on or after another date specified in the agreement;

  • that the union in fact ceases to authorise or endorse the action with effect from the suspension date agreed; and

  • that the union again authorises or endorses the action from a date on or after the date originally agreed or a later date agreed between the employer and the union.

    The draft revised Code in its present form warns (probably correctly) that, for this exception to apply, the resumed industrial action will have to be of "the same kind" as that covered in the original notice: "That will not be so if, for example, the later action is taken by different or additional workers."

    References

    1 May 1998, Cm 3968.

    2 It is still hoped that this will be before the summer 2000 parliamentary recess. Commencement of the new provisions is intended to take place simultaneously with publication of the final version of the revised Code (see immediately below).

    3 A consultation document (URN 00/807), including the draft revised Code, can be obtained from Tim Dadswell, Department of Trade and Industry, Employment Relations Directorate, Room UG86, 1Victoria Street, London SW1H 0ET, fax: 020 7215 3946, or on the DTI web site: www.dti.gov.uk/er/ consultz.htm. Responses should be sent to Tim Dadswell at the above address to arrive by 5 June.

    4 Stephen Byers, Report Stage of the ERB, 30.3.99, Hansard (HC), col. 988.

    5 [1994] IRLR 227.

    6 "Fairness at Work" White Paper (see footnote 1 above).

    7 Michael Wills, Minister for Small Firms. Trade and Industry, Standing Committee E, House of Commons Official Report 18.3.99, col. 467.

    8 [1989] IRLR 349.

    9 There is a limited exception from this duty for the balloting of union members who are merchant seamen, where the union reasonably believes that they will be employed in a ship at sea (or outside Great Britain) at some time in the period during which votes may be cast and that it will be convenient for them to vote while on the ship or where the ship is. So far as reasonably practicable, the union must ensure that, in these circumstances, those members get a voting paper while on board ship (or at the place where the ship is located), and an opportunity to vote on board ship (or at that place). A failure or failures in this respect will also be covered by the new s.232B.

    10 See para. 143 of the Explanatory notes to the ERA.

    11 [1995] IRLR 636.

    12 Para. 135-137 of the Explanatory notes.

    13 Lord McIntosh of Haringey, tabling the new provisions on this question on Third Reading of the ERB in the House of Lords, 15.7.99, Hansard (HL), col. 576.

    14 [1996] IRLR 583.

    15 11.12.98 Court of Appeal, see Connex South Eastern Ltd v National Union of Rail, Maritime and Transport Workers .

    16 See the suggestion in para. 146 of the Explanatory notes.

    17 [1986] IRLR 406.