3. Balloting

Code of Practice

In 2005, the Department for Trade and Industry (now BIS — the Department for Business, Innovation and Skills) produced an updated version of its Code of Practice on Industrial Action Ballots and Notice to Employers. A copy of the Code is available at www.berr.gov.uk/files/file18013.pdf.

The Code is designed to provide guidance that supplements the provisions of Trade Union and Labour Relations Consolidation Act 1992 (TULRCA). The Code is not binding and a failure to observe its provisions does not render industrial action automatically unlawful. However, breaches of the Code are likely to be raised by the employer in any subsequent legal action. The Code is not only admissible as evidence, but the courts must, where relevant, take instances of breaches of it into account (section 207(3) TULRCA).

What to ballot about

There has to be a dispute in existence. However, the ballot does not have to define every single issue of the dispute (Associated British Ports v TGWU [1989] IRLR 399). In fact, the London Underground workers’ union NUR (now RMT), was held by the High Court to have lost its protection by including matters which were not yet the subject of an industrial dispute in its strike ballot (London Underground v NUR [1989] IRLR 341).

When to ballot

Industrial action cannot be called for, or otherwise organised, until a ballot has occurred. However, a union is entitled to campaign for a “yes” vote in a ballot. This does not amount to an unlawful call for, or endorsement of, industrial action before the date of the ballot (LB Newham v NALGO [1993] IRLR 83).

Whom to ballot

Under section 227(1) TULRCA: “Entitlement to vote in the 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 to take part or, as the case may be, to continue to take part in the industrial action in question, and to no others”. Therefore if someone is not balloted, they may not be called on to take industrial action (unless they weren’t members at the time, or they subsequently took up a new role which put them in scope).

Failing to give the right to vote to just one member could invalidate the entire ballot, however, court rulings have not been this rigid. In RJB Mining v NUM [1997] IRLR 621, the High Court ruled that a union is not expected to achieve 100% perfection in conducting ballots, so long as it has in place structures which enable it to properly ballot all the relevant workers. Additionally, in the case of BT v CWU [2003] EWHC 937 ([2004] IRLR 58), the High Court held that the union had not breached the law when, in a dispute over a new productivity scheme, some of the members it balloted would not have been party to the new scheme.

The case of London Underground v RMT [1995] IRLR 636 also dealt with who should be balloted. The Court of Appeal held that the fact that the union had not balloted employees who were not its members prior to the ballot, but joined subsequently, did not invalidate the ballot.

Those being balloted are those whom the union considers will be called upon to take industrial action, but they do not all have to be directly affected by the issue over which the ballot is being called.

In RMT v Midland Mainline Ltd [2001] EWCA Civ 1206, ballot papers were sent to some, but not all, operational train staff, who were union members. The employer argued that there was an expectation that all operational train staff (including those union members who had not been balloted) would take part in industrial action. Specifically, staff who had not had an opportunity to vote would be induced to take part in industrial action. The union responded that, while some people who were not balloted were prepared to take industrial action, the union’s belief as to who should be balloted was a reasonable one. In particular, the union’s membership database was not up-to-date.

The Court of Appeal noted that a significant number of the individuals who were entitled to vote had not been given that opportunity. The Court decided that the union had not taken reasonable practicable steps to ballot the right constituency. Although this is an adverse decision, its impact can be moderated. Unions can, for example, show that they have taken steps to remind members (and enabled them easily) to change their contact and other personal details. If they’ve done so and sent out ballot papers to the addresses held, courts are more likely to agree that reasonable practicable action has been taken.

In P v NASUWT [2003] UKHL 8, the lawfulness of industrial action by teachers opposed to teaching a disruptive pupil was challenged. Specifically, did the fact that two teachers (who were union members) had not been balloted, invalidate the vote? The House of Lords found that small and accidental failures to accurately establish the electorate and send them out ballot papers did not breach the requirements of TULRCA. This ruling is now enshrined in legislation as section 232B TULRCA.

Multiple workplaces

Separate ballots must be held for separate workplaces, unless the dispute involves only common terms. Where there have been separate ballots only those workplaces with a majority for strike action can be called out.

Where there is at least one individual who is affected by the dispute in each of the workplaces, the ballots can be aggregated into a single ballot. Ballots can also be aggregated where linked by occupation and employer(s) (section 228 TULRCA)).

The “place of work” for the purpose of ballots is not narrowly defined as the building occupied by the employee, according to the Court of Appeal in the case of Intercity West Coast v RMT [1996] IRLR 583. This meant that a single ballot covering all staff working at Manchester Piccadilly railway station was valid even though it covered two rail operating companies that had separate administrative buildings at the station.

Multiple employers

The fact that more than one employer is involved does not mean that different ballots have to be organised, provided that all those being balloted share common terms and conditions (University of Central England and Kingston University v NALGO [1993] IRLR 81). This is also the case where they comply with the requirements regarding aggregated ballots (see above).

The ballot form

The ballot form must be consecutively numbered and contain certain information. Specifically, under section 229 TULRCA it should:

• state the address to, and date by, which the ballot must be returned;

• state the independent scrutineer overseeing the vote;

• state the people or committee authorised to call the industrial action (they must be people for whom the union is legally responsible);

• state whether voters are requested to take part in a strike, or industrial action; and

• allow members to indicate their views on the action proposed by selecting “yes”/“no”.

See example of a ballot form on page 16.

How to ballot

Balloting must, so far as is reasonably practicable, be secret. Ballot papers should be sent to the voters’ home, or another nominated address. The voter should be able to return their vote at no direct cost to themselves (e.g. a pre-paid envelope should be provided). At least seven days must be allowed for its return if first class (14 days if second class). It must be a secret postal ballot, with the ballot paper sent to the member’s nominated address and specifying the address and date for return (sections 227-230 TULRCA).

Independent scrutineer

Where more than 50 workers are to be balloted, an appropriate scrutineer must be appointed and named on the ballot paper (section 226 TULRCA). A new list of organisations qualified to undertake and scrutinise statutory ballots and elections under trade union law was announced by the Department for Business, Innovation and Skills in February 2010. The successful organisations are: Association of Electoral Administrators; DRS Data Services Limited; Electoral Reform Services Limited; Involvement and Participation Association; Opt2Vote Limited; and Popularis Limited.

The new legislation naming these six organisations qualified as scrutineers will come into effect on 6 April 2010.

The terms of the scrutineer’s appointment obliges them to produce a report on the content of the ballot as soon as reasonably practicable after the ballot. In any event, within four weeks the scrutineer must produce the report of the ballot. In that report the scrutineer must state its views as to whether the arrangements for the ballot (e.g. production, supply and return of voting papers) were fair, whether it has been impeded in its scrutinising functions, and whether it believes the ballot to have been lawful.

Unions have a duty to comply with all of the scrutineer’s reasonable requests in order that it can put its report together. Unions must make the scrutineer’s report available, if requested by a voter or the employer, for up to six months from the date of the ballot. A reasonable fee can be charged, but a copy of the report must be provided as soon as reasonably practicable.

Notifying the employer of the ballot

Not less than seven days before the opening of the ballot (i.e. when voting papers are sent out) the union must inform the employer of various matters (section 226A TULRCA). Specifically, the union must tell the employer:

• that it intends to hold a ballot;

• the date the ballot will open;

• a list of the categories of employees who will be entitled to vote;

• the number of employees in each category and the total number of employees involved as well as an explanation of how those figures were reached; and

• a list of the workplaces at which the individuals are based.

There is no requirement to provide the names of the affected employees. Also, if the employer makes deductions for payments to the union, a check-off list should be provided: either a list of the categories of worker and workplaces (with numbers) or such information as to enable the employer to identify the employees concerned.

In RMT v London Underground [2001] EWCA Civ 211, the Court of Appeal considered the employer’s complaint about the ballot notice. Was it adequate to simply provide the employer with an estimate of the number of RMT members working for the employer? Specifically, given the limited accuracy of the union membership database at the time, could the union avoid providing a breakdown of the group into grades and workplace? The Court of Appeal stated that employers are entitled to have sufficient information from the unions to enable them to take measures to dissuade employees from striking and to minimise the impact of the strike. Even though the RMT’s database was not up to date, it had to provide information on the grades and workplaces of the relevant staff (unless to do so would constitute misinformation).

In Westminster City Council v Unison [2001] EWCA Civ 443, the Court of Appeal reached a more helpful decision. The union Unison notified the Council that 45 employees (whose subs were paid by check-off) via the Housing Assessment and Advice Department were to be balloted. The Council complained that the ballot notice had been defective. The Court of Appeal disagreed. The Council, by analysing its electronic payroll system, would have been easily able to find out which employees were to be balloted.

A copy of the ballot form should be sent to the employer not less than three days before the opening of the ballot (i.e. three days before the voting papers are sent out).

The votes must be counted accurately and fairly. In particular, anything more than accidental errors which could not impact on the result will invalidate the ballot (section 230(4) TULRCA).

Obviously a majority in favour of a strike/industrial action is required if immunity is to be achieved. What about where a strike is endorsed, but industrial action short of a strike is not? In West Midlands Travel Ltd v TGWU [1994] IRLR 578, the employer argued that the clear majority against industrial action short of a strike outweighed the small majority in favour of a strike. The Court of Appeal disagreed: the two questions asked amounted to separate ballots — accordingly strike action was authorised by a majority vote.

Announcing the result

As soon as reasonably practicable after the ballot, the union must take reasonable steps to inform the voters (section 231 TULRCA) and the employer (section 231A TULRCA) of the result. In particular:

• the number of total votes cast;

• the number answering “Yes” (to each question);

• the number answering “No” (to each question); and

• the number of spoiled voting forms.

In Metrobus Ltd v Unite the Union [2009] EWCA Civ 829, general union Unite, while campaigning for improved pay and conditions for London bus drivers, advocated taking industrial action against Metrobus. A ballot conducted by Electoral Reform Services (ERS) was held, closing at noon on 1 September 2008.

At 12:36pm on 1 September 2008, ERS faxed the result of the ballot (90% in favour) to Unite’s Regional Industrial Organiser (RIO) and HQ. Unfortunately, the fax was not received until after 3pm the following day. The union was expecting the fax but did not chase ERS for it.

The RIO then waited for HQ to approve industrial action (granted just before 5pm on 2 September). At 11am on 3 September the RIO faxed and emailed Metrobus the result of the ballot, the scrutineer’s report and notice of a strike.

The strike went ahead on 12 September 2008 but as Metrobus’s position was unchanged, a second strike was called. At this point, Metrobus obtained an injunction from the High Court preventing the second strike. Unite appealed, but the Court of Appeal found that the injunction was lawful because:

• the union’s ballot notice did not provide an explanation of how the figures for non-check-off employees (employees who didn’t pay their union subs via their wages and in relation to whom it was therefore less clear to the employer whether they were members going out on strike) were reached;

• the result of the ballot was notified to Metrobus too late. The “as soon as reasonably practicable” requirement under TULRCA was not met even though the ballot result was forwarded to the employer within less than two days. The union could have chased ERS and shouldn’t have waited for HQ’s approval (to go ahead with the strike) before forwarding the result of the vote to the employer — Metrobus was entitled to know the results of the vote irrespective of whether industrial action was to follow; and

• even though the Court of Appeal observed that in the UK: “The right to strike has never been much more than a slogan...” it found that the provisions of TULRCA governing industrial action are not too complex, detailed and rigid such as to make the legislation incompatible with a realistic possibility of exercising protected rights under Article 11 (freedom of association) of the Human Right Act 1998.