Employment – Transport – Balance of convenience – Industrial action

Network Rail Infrastructure Ltd v National Union of Rail, Maritime & Transport Workers: QBD (Mrs Justice Sharp): 1 April 2010

The applicant rail company (N) applied for an interim injunction to prevent strike action by the respondent union (R).

R had called for a four-day national strike of its signallers. N maintained that R had not complied with the statutory requirements for a ballot under sections 226A, 231, 234A and 227 of the Trade Union and Labour Relations (Consolidation) Act 1992, as it had conducted the ballot on the basis of inaccurate information, included irrelevant workplaces in the ballot for the purposes of the ballot notice, and had failed to provide complete information for a number of workplaces listed in the ballot notice. Such errors had been identified in challenges by N to previous ballot notices provided by R in preceding years. N submitted that R had (1) not taken all reasonably practicable steps to ensure that the information contained in the ballot notice was accurate in accordance with sections 226A and 234A(3)(a); (2) failed to give a sufficient explanation of the figures contained in the ballot notice in accordance with section 226A(2)(c)(i); (3) not established the constituency of the ballot; (4) failed to give the required notification of the results of the ballot in accordance with section 231.

Held: (1) There was clear evidence that R had failed to take account of the information available from N. The fact that it had taken other steps to check the information available, namely a job evaluation survey and a corresponding spreadsheet, did not excuse its failure to take simple and obvious steps to check the accuracy of the information that it had. The ballot notice had certain members’ workplaces described as unknown votes. It was obvious that the information regarding those votes was incomplete, yet there was no evidence that R had taken steps to acquire the missing information by direct enquiry as it could have done. It was not acceptable for R to say it had no choice but to describe the information as unknown votes because it was not in possession of the relevant information, British Airways Plc v Unite the Union [2009] EWHC 3541 (QB) applied.

(2) R had failed to give a satisfactory explanation of the figures contained in both the ballot notice and the strike notice in accordance with section 226A(2)(c)(i). The words used by R were of great importance as it had an obligation to explain how the figures had been arrived at, Metrobus Ltd v Unite the Union [2009] EWCA Civ 829, [2010] ICR 173. However, what was appropriate depended on the context and in the instant case the explanation provided was not satisfactory and was more of a conclusion than an explanation.

(3) It could not be concluded that little significance was to be attached to the result of N’s enquiries made in respect of the missing workplaces. N had found that at a number of those workplaces at least five relevant members had not received a ballot paper. N was entitled to regard that as a significant number. Section 227, on its face, had not been complied with. Therefore, it was unsatisfactory to say that R could bring itself within section 232B to make allowances for the accidental and minor defaults.

(4) Given the wording of section 231, it was understandable why R thought that a text referring its members to its website was sufficient to comply. Section 231, on its face, required active steps to be taken in the provision of information. There was a clear distinction between taking active steps, namely the direct provision of information, and referring R’s members to where they could find such information. It could not be assumed that everyone had access to a computer. R’s members had to be actively given information rather than told where to obtain it. Therefore, N had a strong case that R had not taken the necessary steps to ensure that its members were informed of the ballot results. The balance of convenience lay in favour of granting the injunction sought by N as damages were not an adequate remedy and a four-day strike would be fundamentally more damaging to N and the wider public.

Application granted.

Charles Bear QC, Paul Gott (instructed by Bircham Dyson Bell) for the applicant; Frederic Reynold QC, Oliver Segal (instructed by Thompsons) for the respondent.