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:


• the ballot 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 (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 be in the form of two separate questions (section 229, TULRCA);



• 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, TULRCA);



• voting papers must be numbered consecutively;



• voting papers must tell employees of their rights not to be unfairly dismissed. Specifically, they must be told 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 must also be told 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);



• for all ballots opened on or after 1 March 2017 (TUA 16):


◊ the voting paper must include a “summary” of the matter(s) in dispute;



◊ 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);



◊ 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 5, TUA 16, sections 229(2B-D), TULRCA). 



• all those workers that the union reasonably believes at the time of the ballot will be called on to take action (and nobody else) should be balloted (section 227, 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 in the ballot;



◊ 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 



◊ for all ballots opened on or after 1 March 2017, 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, section 6, TUA 16). 



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



The union must ensure that all those who are likely to be called on to take part in the industrial action are 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. 



The case of London Underground v RMT [1995] IRLR 636 also dealt with who should be balloted. The Court of Appeal ruled that the fact that the union had not balloted employees who were not its members prior to the ballot but who 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 must be those the union considers will be called upon to take part in industrial action (section 227, TULRCA), but they do not necessarily 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 ruled 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. Here is another example:


For the ballot to be valid, a dispute must be in existence. For example, the London Underground workers’ union NUR (now RMT), lost its protection from the immunities by including matters which were not yet the subject of an industrial dispute in its ballot (London Underground v NUR [1989] IRLR 341). 



For ballots opened on or after 1 March 2017, the ballot paper must include a summary of the matters at issue in the trade dispute. This new requirement is expected to result in more injunction applications, challenging whether a “summary” is adequate, or disputing the ballot’s validity by arguing that the dispute has changed or moved on. 



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 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 “accidental mistakes” in terms of those who are balloted on a scale unlikely to affect the outcome will not invalidate the whole procedure.



Here is an example of a case where the union succeeded in relying on the exception for “accidental mistakes”: 



The place of work for the purpose of ballots is not narrowly defined as the building occupied by the employee (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). 



A union member can use section 109, TULRCA to take legal action against their own union where ballots have not been held before official action.