Requirements to notify employers

To comply with the legislation, a union must also give notice to employers at four key stages as set out below. These are contained in section 226A of TULRCA (as amended by the ERA 04).

The DTI, now the Department for Business, Innovation and Skills, Code of Practice Industrial action ballots and notice to employers provides further information (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/245421/05-1462-code-of-practice-industrial-action-ballots-and-notice.pdf).

Notification stages

Stage 1 — when taking a decision to ballot for industrial action, a union must first notify the employer in writing, at least seven days before the ballot, that the union intends to hold a ballot, as well as the date when it believes the ballot will begin. The union must also provide either (a) a list of the categories of worker and workplaces, with numbers; or (b) if the employer makes deductions for payments to the union, a check off list, either the same list as in (a) above, or such information as to enable the employer to identify the employees concerned.

When compiling the list of categories of worker, unions need only provide numbers by reference to general job categories, and need not be limited to using any particular categories, such as those used for pay purposes (National Union of Rail, Maritime & Transport Workers v Serco Limited t/a Serco Docklands and The Associated Society of Locomotive Engineers & Firemen v London & Birmingham Railway Limited t/a London Midland [2011] EWCA Civ 226).

Stage 2 — no later than three days before the ballot commences, the employer must have received a sample copy of the ballot paper.

Stage 3 — as soon as possible after the ballot result has been declared, the union has to notify the employer of the outcome.

Stage 4 — after the stage 3 notice, and at least seven days before the industrial action (which has been the subject of the ballot) begins, the union must again notify the employer in writing, giving information on the number, category or workplaces of the employees being called upon to take action, the date when the action will begin, or the date of each if planning a series of stoppages, a statement that it gives notice under section 234 of the TULCRA 1992, and the lists of categories of workers and workplaces as for Stage 1. The notice must also specify whether the action planned is continuous (giving the intended date when it will commence) or discontinuous (giving the intended dates when it will occur).

When providing an explanation of how figures in the statutory notifications have been arrived at, the union’s obligation is to provide the employer with figures that are as accurate as possible, in the light of the information in the union’s possession at the time of providing the figures. However, union officers are not required to take any extra steps to obtain additional information from members. In particular, there is no obligation to provide information about precisely who did what and when, in relation to compiling the data (National Union of Rail, Maritime & Transport Workers v Serco Limited t/a Serco Docklands and The Associated Society of Locomotive Engineers & Firemen v London & Birmingham Railway Limited t/a London Midland [2011] EWCA Civ 226).

The RMT went to the European Court of Human Rights to challenge the notification rules, arguing that they are draconian and an infringement of the right of freedom of association under Article 11 of the European Convention of Human Rights. Early in 2014, the ECHR ruled that it has no jurisdiction to hear the complaint, since the union had eventually been able to comply with the rules and had succeeded in exercising its right to strike. This conclusion ignores the practical reality of the enormous financial burden placed on unions by the demands of the balloting process: