The Law

S.227(1) of Trade Union and Labour Relations (Consolidation) Act 1992 states that “Entitlement to vote in the [industrial action] ballot must be accorded equally to all the members of the trade 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 or, as the case may be, to continue to take part in the industrial action in question, and to no others.” S.230(2) of the Act provides that “so far as is reasonably practicable, every person who is entitled to vote in the ballot” must have a voting paper sent to him and be given a convenient opportunity to vote by post.” In National Union of Rail, Maritime & Transport Workers v Serco Ltd [2011] IRLR 399, the Court of Appeal held that the strike ballot legislation should be given a “workable construction”.

The Facts

Unite was in an industrial dispute with Balfour Beatty Engineering Services Ltd (“BBES”) and decided to conduct a ballot of its relevant members in order to see whether they wished for industrial action to be taken. The union printed off a list from its database of all members at BBES, checked the list against information held by the Joint Industry Board and got a company to contact every BBES member. The validation of those to be balloted took some 500 hours or more. As the balloting began, BBES highlighted that a significant number of Unite members claimed not to have received a ballot paper and BBES sought an interim injunction against the union to prevent any industrial action resulting from the ballot on the basis that the ballot had not complied with the legal requirements and in particular that the constituency had not been properly defined and that all those entitled to vote had not received voting papers.

The Judgment

The High Court rejected the request for an injunction. The Judge held that a balance should be struck between striving for democratic legitimacy and imposing unrealistic burdens on unions and their officers. The Serco decision does not support being lax about taking proper steps to obtain the most up to date information available, but it does require “the relatively relaxed interpretation” to the law which the legislature intended the courts to apply. While ‘reasonable practicability’ is an objective test, there would need to be room for union officers to exercise their own judgment about what are the appropriate steps to take in a given situation. In this case it was clear that the union officials had “gone to painstaking (and no doubt also time-consuming and expensive) lengths to verify the information in their possession” and, therefore, it was likely that the union would be able to establish a trade dispute defence on the basis that its staff had complied with the test of “reasonable practicability” in identifying those who it is reasonable at the time of the ballot for the union to believe will be induced to take industrial action.

The Implications

With industrial unrest now becoming prevalent in the UK, particularly in the public sector, this decision, as IRLR points out, shows how dramatically the judicial approach to the law relating to strike ballots has been transformed by the Serco Ltd decision. The precedent that the legislation should be given a “workable construction” means the focus is on whether the union did what was reasonably practicable, and if a union can show that it went to great lengths to verify records to identify the correct constituency, the law will likely to be have been complied with, even if a significant number of union members who are entitled to vote have not received a ballot paper.

Balfour Beatty Engineering Services Ltd v Unite the Union IRLR [2012] IRLR