Getting the vote right
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How can unions know if they have met the correct requirements for a valid ballot before industrial action?
Anyone who planned to go away for the 2009 Christmas period will doubtless still remember the threatened British Airways cabin crew strike that loomed over any would-be holiday makers. However, three days after Unite the Union, representing the lion's share of BA cabin crew, announced strike action that would see thousands of stewards and stewardesses walking out between 22 December and 2 January, the threat fizzled out as the High Court, in the person of Mrs Justice Cox J, had put a halt on proceedings with an injunction in British Airways plc v Unite the Union (2009).
Cox J's ruling seemed a blessing for employers: the message appeared to be that, no matter how insignificant the error, an error in a ballot before industrial action would render that ballot void and any subsequent strike unlawful. However, since that decision, the courts have been asked to rule on a number of occasions on the effect that errors in the process will have on the validity of a ballot. With the case law going back and forth, union officials and employers alike are justified in asking how unions can, as Cox J put it, "get it right".
The legal context
Lord Justice Elias, in National Union of Rail, Maritime and Transport Workers v Serco Ltd, states: "The common law confers no right to strike in this country. Workers who take strike action will usually be acting in breach of their contracts of employment. Those who organise the strike will typically be liable for inducing a breach of contract, and sometimes other economic torts are committed during the course of a strike. Without some protection from these potential liabilities, virtually all industrial action would be unlawful." It is important to remember that the reason why BA - and other employers over the years - have been able to use injunctions so effectively to prevent strike action, is that by not fulfilling all requirements necessary to have the protections offered by statute, both employees and their unions could face harsh penalties.
That protection, first enshrined in legislation in 1906 and evolving to its present form in the Trade Union and Labour Relations (Consolidation) Act 1992, is not automatic. In order to be afforded that protection, unions must first hold a valid ballot of their members (Section 226). This also includes proper notice, the appointment of a scrutineer, and ensuring that only those entitled to vote are balloted.
There are also post-ballot requirements. Unions are required to notify both their members (Section 231) and the employer (Section 231A) of the votes cast, the number of 'yes' and 'no' votes, and the spoiled papers.
The requirements are relatively harsh, and impose great burdens upon unions. Failure to meet them will almost always invalidate the ballot, leaving members and unions vulnerable if industrial action goes ahead. However, there is a statutory de minimis rule: Section 232B allows failures to be disregarded that are (a) accidental, and (b) on a scale unlikely to affect the outcome of the ballot.
Accidental and small errors
Under Section 227, the union may only ballot those whom the union reasonably believes at the time would be induced to participate in the industrial action and, crucially, no others.
The question in issue in BA v Unite (2009) had been whether Unite had breached the requirements for a valid members' ballot when it sent out ballots to 1,003 ineligible members, who had taken voluntary redundancy and so would not be induced to strike as they would have left BA, out of a pool of 12,780 members. If they had, could they rely on the 'escape clause' of Section 232B?
Cox J decided that they could not - the 7.8% ineligible members in the ballot was too high a proportion to include. This was in spite of the fact that, with 9,514 'yes' votes (92.5%) on a turnout of 80%, their inclusion would not have altered the ballot's outcome. In her ruling, Cox J insisted that a ballot before action must comply with the relevant statutory procedures: "[N]otwithstanding the overwhelming support for industrial action demonstrated by UNITE's membership, the fact remains that these are procedural requirements contained in an act of Parliament, which all trade unions must currently comply with if any call for industrial action is to be lawful and the union is to have immunity from suit."
However, this has not always been the position. In RJB Mining (UK) Ltd v National Union of Mineworkers (1997) Mr Justice Maurice Kay held that: "It is well understood that a union is not expected to achieve 100% perfection in the conduct of ballots such as these. A union has the protection of the de minimis rule and the test of reasonable practicability." The late Lord Bingham of Cornhill stated in P v National Association of School Masters/Union of Women Teachers (2003) that it would be "absurd if an immaterial and accidental failure to establish the accuracy of who was entitled to vote were to invalidate the ballot so as to deprive the union of immunity".
Furthermore, subsequent case law has tended to adopt a more flexible approach to meeting statutory requirements for ballots. A later case in the BA cabin crew dispute, British Airways plc v Unite the Union (2010) - an appeal against a new injunction granted to BA to prevent new strike action - examined a failure by Unite to fully inform its members of the outcome of the ballot in accordance with Section 231. However, in a majority decision (Lord Neuberger MR dissenting), the Court of Appeal held the breach to be too minor to invalidate the ballot. In her judgement, Lady Justice Smith held that, far from an absolute obligation, Unite was obliged to do and achieve "substantial compliance".
Similarly, in ASLEF, Elias LJ (delivering the only judgment of a unanimous court) held that requiring absolute perfection of the ballot requirements would "wholly frustrate the purpose" of the provisions under the act.
Distinguishing BA v Unite (2009)
In light of these apparently contrasting decisions, it would be easy for union officials to become confused as to what standard must be met when balloting members. However, the distinctions drawn by the Court of Appeal in both BA v Unite  and in ASLEF, as well as Cox J's judgment in BA v Unite (2009) give some guidance.
Failures to comply must be accidental
The failures to comply with the act in BA v Unite (2009) could not be described as accidental, and neither unavoidable nor unintentional. On the other hand, where the failures are due to "human errors and failings" (ASLEF, per Elias LJ), the union will be able to rely on the Section 232B defence.
Unions must take reasonably practicable steps to avoid failures
A key feature of Cox J's judgment in BA v Unite (2009) is that she laid out the steps that Unite could have taken to ensure that the requirements were met. Union officials should take note, but may also be reassured that the steps required are reasonable steps and those required to achieve substantial compliance.Furthermore, the reasonableness of such steps should be analysed in context, including union members' working and behavioural patterns (BA v Unite (2010)).
A purposive approach?
Bingham stated in P v National Association of School Masters that a "likely and workable construction" should be given to the act. Since then the courts appear to have developed an approach to interpreting the act and its provisions in a manner that can only be described as purposive: that is to say "to give effect so far as the language permits to the intention of the legislature" (Lord Justice Griffiths in Pepper (HM Inspector of Taxes) v Hart and others (1993)).
While Cox J steered away from applying the purposive approach, justices in other cases have not. Smith in BA v Unite (2010) was explicit: "It cannot have been Parliament's intention to allow a minor infringement which has had no adverse effect on anyone's rights or interests to invalidate the ballot." Lord Justice Millett said in London Underground Ltd v National Union of Railwaymen, Maritime and Transport Staff (1996): "Parliament's object… is not to make life more difficult for trade unions by putting further obstacles in their way." In ASLEF Elias LJ confirmed the rule that there had to be substantial compliance with the act, and stated that this construction "rest[s] on assumed parliamentary intention".
As the courts develop this line of reasoning further, there may be a case for arguing that the approach should be reconsidered. As Aharon Barak points out in Purposive Interpretation in Law, such an approach must take the objective view that "the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner", and as such their intentions were the reasonable ones (and not, perhaps, their true intentions).
Furthermore, seen in the political contexts of the last two major pieces of trade union reform legislation - 1984 and 1992 - the various justices' insistence in the cases reviewed here that such provisions exist not to limit union activities but to protect them might ring a bit hollow. In any event, establishing what the intention of a legislative body as a whole was at the time of enacting a piece of legislation will always be complex and vulnerable to wildly differing interpretations and subjective analyses.Timothy Goodwin is a first-year trainee in the employment department of Bird & Bird.