The Civil Division of the Court of Appeal in its judgment in the case of National Union of Rail, Maritime and Transport Workers v Serco Ltd (t/a Serco Docklands) [2011] EWCA Civ 226 handed down on 4 March 2011 sought to set out the proper extent of trade unions’ obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), regulating their organisation of industrial action ballots, and in particular the notices they provide to employers about ballots and strikes.

The common law confers no right to strike and workers who do take strike action, along with those who organise such strikes will usually be in breach of their contracts of employment. Section 219 of the 1992 Act confers immunities on the organisers of strikes from certain tort liabilities, provided that such action is “in contemplation or furtherance of a trade dispute”, unless the industrial action is designed to achieve an improper purpose, or if it involves secondary action. The 1992 Act sets out prescribed procedures with which the union must comply before it can claim the benefit of the immunities, and failure to comply with these procedures removes the protection of the immunities. Section 226A of the 1992 Act imposes a duty to give certain defined 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, while section 230(2) provides for procedural obligations. Furthermore, section 232B(1) provides that if there is a failure to comply with section 230(2) and that failure is accidental and on a scale which is unlikely to affect the result of the ballot, that failure shall be disregarded.

Ramsey J of the High Court had granted the interim injunction sought by the respondents to prevent the appellant trade union from calling upon its members to take industrial action on the grounds that the ballot notification was defective and thus the union was in breach of section 226A of the 1992 Act. The respondents had succeeded in convincing the court of procedural failures on three grounds: that the ballot notification included neither an accurate nor an adequate explanation as to how the union had determined which members ought to be balloted and therefore was in breach of section 226A; that the figures were not as accurate as reasonably practicable; and that two persons were allowed to vote notwithstanding that they were not so entitled. The appellants admitted that there were very minor inaccuracies in the database information they had held, particularly in relation to members’ moves from one workplace to another.

Elias LJ, delivering the judgment of the Court of Appeal, noted that under section 221 of the 1992 Act, where a defendant claims that he was acting in contemplation of furtherance of a trade dispute, the court must have regard to the likelihood of his establishing that defence at trial. He rejected the employers’ argument that since the unions were seeking to take advantage of an immunity, the legislation should be construed strictly against them, noting that if that had been the intention, Parliament would have made it so.

Where section 230(2) of the 1992 Act had been infringed, the presumption was that the union had not done what was reasonably practicable to prevent those not entitled to vote from voting, and therefore it could not rely on section 232B. However, the union was only obliged, so far as was reasonably practicable, to ensure that the records were accurate, but it was not reasonable to expect them to be perfectly accurate. The only records which a union was expressly obliged to keep was a register of members' names and addresses and there was no separate statutory duty to keep a record of workplaces or job categories. Ramsey J had erred in law in holding that the union was under an obligation under section 226A to obtain further information or to set up systems to improve its record keeping, and this would amount to setting “traps or hurdles for the union which have no legitimate purpose or function”.

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. Since there was no statutory duty to provide an audit or to update the figures, there could therefore be no obligation to state whether that had been done. There was only the obligation to explain how the lists and figures had been were reached, and if the union explained that that was done by reference to its records, albeit inaccurate, it was doubtful whether that the error would put it in breach of its statutory obligations. There was no statutory obligation to provide information about earlier ballots, but merely to explain how the figures provided in the lists had been arrived at, although Lord Justice Elias said that it might be prudent for the union to do so.

The Court of Appeal thus overturned the decision of the High Court and discharged the injunctions.