The ballot process




The balloting and notification process contains detailed restrictions, all of which must be complied with. These rules have been changed in important respects by the TUA 16:



• there must be a secret postal ballot, with the ballot paper sent to the member’s nominated address, specifying the address and date for return (sections 227-230, TULRCA);



• at least seven days must be allowed for its return if first class, or 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, TULRCA);




• the voting paper must specify who is authorised to call the action (section 229, TULRCA); 




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




• if action short of a full strike 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, TULRCA);




• voting papers must be numbered consecutively;




• voting papers must inform employees of their rights not to be unfairly dismissed. Specifically, they must include the statement 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” and that a dismissal outside the 12 weeks can still be unfair;




• the voting papers 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, TULRCA);




• the voting paper must include a “summary” of the matter(s) in dispute (section 229(2B), TULRCA);




• if the voting paper asks about action short of a strike, the types of industrial action must be specified, on the voting paper or elsewhere (section 229(2C) TULRCA);




• the voting paper must indicate the period(s) within which the industrial action, or each type of industrial action, is expected to take place (section 229(2D), TULRCA); 




• separate ballots must be held for separate workplaces, unless the dispute involves only common terms. Where at least one individual affected by the dispute is 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, TULRCA);




• where there have been separate ballots, only those workplaces that have met the threshold for strike action can be called out;




• as soon as possible after the vote, members should be informed of:




◊ the number of workers entitled to vote;




◊ the number of votes cast;




◊ the number who answered in favour and against to each question;




◊ the number of spoiled or invalid voting papers; and 




◊ whether the number of votes cast was as least 50% of those entitled to vote (and whether at least 40% voted in favour of a strike in “important public services”) (section 231, TULRCA). 




The new requirement under the TUA 16 to “indicate the period(s) within which the industrial action, or each type of industrial action, is expected to take place” (section 229(2D), TULRCA) does not mean that the ballot paper must specify the proposed dates or frequency of industrial action. It is enough to specify the period during which action is proposed to take place. This can be the entire six-month life of the ballot mandate. This was established in the case of Thomas Cook Airlines Limited v British Airline Pilots Association [2017] EWHC 2253. In this case, the High Court ruled that a ballot paper that simply notified members that the union proposed to take discontinuous strike action “on dates to be announced” met the new requirements. The court accepted BALPA’s argument that it is impossible for any union to have a fixed expectation as to what industrial action will be needed before a ballot has even taken place, especially since the stronger the turnout, the greater the union’s bargaining power. Indeed, if a ballot shows strong support for a strike, a negotiated outcome may be achieved with no strike at all.


In Argos Limited v Unite the Union [2017] EWHC 2253, the retailer sought an injunction arguing that Unite had failed to comply with the new requirement under the TUA 16 for a “summary” of the dispute on the ballot paper. The court ruled that all that was required was a reasonable summary of the dispute, judged from the perspective of a hypothetical reasonable member who receives a ballot paper and reads it against the backdrop of any publications produced by the union and/or the employer. 


It is vital that all rules on balloting and notice are fully complied with. Otherwise the employer may be able to obtain a court injunction to defeat the strike. 




The union must ensure that everyone likely to be called on to take part in the industrial action is balloted, and no others (section 227, TULRCA). 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. 



A ballot will still be valid if a union induces new members to take part in the strike who only joined the union or took jobs in the balloting constituency after the ballot had closed (Balloting Code of Practice, London Underground v RMT [1995] IRLR 636). 


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).




A union is entitled to campaign for a “yes” vote. This does not amount to an unlawful call for, or endorsement of, industrial action before the date of the ballot (London Borough of 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 ruled that common sense permits a certain amount of delegation (Tanks & Drums v TGWU [1991] IRLR 372).



“Accidental failure” to comply with the rules on deciding who should be asked to vote, dispatching voting papers, and enabling members to vote by post can be disregarded if, taken together, their scale is unlikely to affect the result (section 232B(1)(b), TULRCA). “Accidental” means “unintentional” (Balfour Beatty Engineering Services Limited v Unite the Union [2012] EWHC 267). For example: 




This important ruling was followed by the High Court in refusing an injunction sought be construction firm Balfour Beatty in a dispute with Unite members over the employer’s threat to impose new terms and conditions and to abolish collective bargaining mechanisms. Having failed to secure an injunction, the employer’s proposals were withdrawn:



While welcoming these rulings, trade union solicitors Thompsons, who represented the unions in both cases, have cautioned that there must be no let up on “painstaking membership data checking procedures and precision with the wording of ballot and action notices and other balloting procedures”. The new higher balloting thresholds may lead to an increase in this kind of legal challenge, especially in disputes where the turnout or voting threshold was only met by a small number of votes.