Requirements to notify employers 





Before taking industrial action, the union must give notice to employers at four key stages as set out below, found in section 226A, TULRCA (amended by ERA 04 and TUA 16).





Stage 1: When deciding 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, and the intended ballot start date. 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 workers concerned (section 226A(1), TULRCA).





In RMT v Serco Limited t/a Serco Docklands and ASLEF v London & Birmingham Railway Limited t/a London Midland [2011] EWCA Civ 226, the Court of Appeal ruled that 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 any particular categories, such as those used for pay purposes.


However, as with all aspects of the ballot notification laws, great care must be taken to comply. In Virgin Atlantic Airways Limited v PPU Case No QB [2018] 000526, the high court granted an injunction on the basis that a ballot notice simply listed “pilots” rather than stating whether they were Captains or First Officers. The high court said that the purpose of the balloting notice is to enable employers to make plans to avoid or mitigate the effects of industrial action and that as such, the information provided by the union must be useful. It will be a question of fact in each case whether the information on job categories is good enough to meet the requirements of the law. 


In this case, there were fundamental differences between Captains and First Officers, since a Captain could cover for the duties of a First Officer, whereas a First Officer could not take on the role of a Captain. The union had access to the information that would have enabled it to break down the job categories in this way but chose not to do so. It was irrelevant that the employer could work out who was covered by the ballot notice using its own records. 



There is no requirement to supply the names of those members being balloted.





Stage 2: No later than three days before the ballot starts, the employer must have received a sample copy of the ballot paper (section 226A, TULRCA, Balloting Code, Para 19).





Stage 3: As soon as possible after the ballot result has been declared, the union must notify the employer of the outcome (section 231A, TULCRA), providing information as to the number of workers entitled to vote; number of votes cast; number who answered in favour and against to each question; number of spoiled or invalid voting papers and a statement that the number of votes cast was as least 50% of the bargaining unit (and that at least 40% voted in favour in a strike in “important services”). The requirement to notify the employer “as soon as possible” has been interpreted very strictly in the courts.





Stage 4: The union must give the employer 14 days’ notice before the balloted industrial action can begin, or seven days if the employer agrees (section 8, TUA 16, section 234A, TULRCA). Notice must be in writing, giving information on the number, category or workplaces of the employees being called on to take action, the date the action will begin, or the date of each stoppage if planning a series of stoppages, a statement that the union gives notice under section 234A of 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 must provide the employer with figures that are as accurate as possible, given the information in the union’s possession at the time of doing so. Union officers are not required to take 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 (RMT v Serco Limited t/a Serco Docklands and ASLEF v London & Birmingham Railway Limited t/a London Midland [2011] EWCA Civ 226).





The government has published an updated BEIS Code of Practice, Industrial action ballots and notice to employers, reflecting the changes to the balloting thresholds.


https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/594781/Code_of_Practice_on_Industrial_Action_Ballots_and_Information_to_Employers.pdf