Balloting

Sections 226-235 of TULRCA remove the immunities, even from otherwise lawful action, where there has not been a ballot complying with all the following requirements:

• it must fulfil the notice requirements to employers (see below);

• 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);

• at least seven days must be allowed for its return if first class (14 days if second class);

• an independent scrutineer, responsible for the eventual preparation of a report on the ballot arrangements, must be appointed and named on the ballot paper in all ballots of more than 50 workers (section 226);

• the form must specify who is authorised to call the action (section 229);

• voters must be asked whether they support strike action or action short of a strike. If being asked to vote on both, this must be in the form of two separate questions (section 229);

• if action short of a full strike (e.g. an overtime ban) is to be called, but may be followed by full strike action, workers must be asked two separate questions, one relating to the limited action and the other to the full strike action;

• members must be able to indicate by “yes”/”no” their views on the action proposed (section 226);

• the forms must be numbered consecutively;

• the form must tell employees of their rights not to be unfairly dismissed (see below);

• the form must contain the statement: “If you take part in a strike or other industrial action, you may be in breach of your contract of employment”, regardless of whether or not there would be a breach (section 229);

• only those that the union is calling on to take action need to be balloted (section 227);

• separate ballots must be held for separate workplaces, unless the dispute involves only common terms. Where there is at least one individual who is affected by the dispute in each workplace, the ballots can be aggregated into a single ballot. Ballots can also be aggregated where linked by occupation and employer(s) (section 228);

• where there have been separate ballots, only those workplaces with a majority for strike action can be called out;

• as soon as possible after the vote, members should be informed of the number of votes cast, as well as those in favour, those against and those spoilt (section 231); and

• industrial action must begin within four weeks of the last day of voting, counting that day as day one (RJB Mining v NUM [1995] IRLR 556). Employers and unions can agree to extend this period by an additional four weeks. If the date when the action should have begun is delayed due to legal proceedings, it has to be called within an overall 12-week period (section 234).

Those being balloted must be told on the ballot paper that any dismissal during an official, lawful dispute “will be unfair if it takes place fewer than 12 weeks after you started taking part in the action”. They will also be told that a dismissal outside the 12 weeks can still be unfair.

It is important that all these rules are complied with. It is particularly important that the union ballots all those who should be included, because they are likely to be called on to take industrial action.

In RMT v Midland Mainline [2001] IRLR 813, the Court of Appeal ruled that a ballot was invalid because not everyone had been balloted. The union was not aware that a group of workers was in the appropriate grade and had therefore not included them in the ballot.

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. However, giving a vote to employees who have already taken voluntary redundancy is likely to invalidate the ballot (British Airways plc v Unite the Union [2009] EWHC 3541 (QB)).

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 BT v CWU [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.

There has to be a dispute in existence. 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).

The ballot does not have to define every single issue of the dispute (Associated British Ports v TGWU [1989] IRLR 399).

Where the ballot paper contains two separate questions, a “yes” majority is determined in relation to the numbers voting “yes” to that question. The fact that they may not represent a majority of all those completing the ballot paper is not relevant (West Midlands Travel v TGWU [1994] IRLR 578).

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).

Although the law states that the ballot paper must specify, in the event of a “yes” vote, who can call action, the courts have stressed that common sense permits a certain amount of delegation:

The High Court has 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 (RJB Mining v NUM [1997] IRLR 621). This was put to the test in the following case:

Section 232B of TULRCA says that where a union makes “accidental mistakes” in terms of those who are balloted, on a scale unlikely to affect the outcome, this will not invalidate the whole procedure (see British Airways plc v Unite the Union [2010] EWCA Civ 669).

An example of the exception for “accidental mistakes” is provided by the following case:

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 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.

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).

The four-week rule for commencing industrial action does not prevent a union suspending action and then re-imposing it (Monsanto v TGWU [1986] IRLR 406). However, the gap between the suspension and reimposition of the action should not be too long, or indicate a change in tactics by the union. Otherwise, it might find that the subsequent action is not covered by the ballot (Post Office v UCW [1990] IRLR 143).

Alternatively, there can be agreement over the length of any suspension of action. Under section 234A of TULRCA, unions can suspend industrial action for talks and then resume it without having to go through the balloting procedure again, provided there is agreement from the employer for this course of action, normally with the aim of trying to restart negotiations.

Where this happens, the union has to agree not to reauthorise industrial action before an agreed date.

Individual union members can use section 109 of TULRCA to take legal action against their own unions where ballots have not been held before official action. They can use the services of the Certification Officer to do this (see Chapter 5: Internal union matters).