Civil procedure – Ballots – Compliance – Industrial action

British Airways Plc v Unite the Union: CA (Civ Div) (Lord Chief Justice, Master of the Rolls Lord Neuberger of Abbotsbury, Lady Justice Smith): 20 May 2010

The appellant trade union (U) appealed against a decision of the judge (QBD McCombe J 17/5/2010) granting the respondent airline (B) an interim injunction restraining U’s members from taking industrial action. Pursuant to section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992, a trade union was protected from liability for the otherwise tortious conduct of inducing employees to breach their contracts of employment via a strike where the conditions of the statutory provisions governing industrial action were satisfied.

In February 2010, a ballot of U’s members had recorded an overwhelming majority in favour of strike action. Two one-day strikes were undertaken in March 2010, and U planned a further series of strikes to commence in May 2010. Shortly before the first of those was due to commence, B applied for an interim injunction seeking to restrain further strike action on the basis that U was unable to establish the defence to tortious conduct under section 219 as the technical requirements of section 231, concerning the provision of information as to the result of a ballot, had not been complied with. That section required a trade union to take such steps as were reasonably necessary to ensure that all persons entitled to vote in the ballot were informed of the number of votes cast, the number of ‘yes’ votes in favour of the relevant question asked, the number of ‘no’ votes, and the number of spoiled voting papers. B contended that U’s provision of the results of the ballot on its website, union notice boards in crew report centres and via news sheets was insufficient to comply with section 231, and that emails and text messages sent to certain of U’s members who had signed up to receive them had not contained the requisite information. The judge found that it was likely that U’s defence under section 219 would not succeed at trial as section 231 imposed a strict requirement to communicate all the requisite information directly to U’s members, which it had failed to comply with, and that the balance of convenience therefore lay in favour of granting the injunction to B. U contended that it had taken the necessary steps to ensure that the requisite information had been given in accordance with section 231 as its members had been highly engaged in the whole process by monitoring its website and notice boards, and any information as to the proposed strike had been quickly disseminated and discussed. B contended that section 231 imposed an obligation of ‘active’ communication of ballot information to union members, rather than permitting them to seek out the information themselves, and that, given that U had emailed or texted members with the ballot results as a percentage, it would have been reasonable for it to have provided all the section 231 information at the same time.

Held: (Lord Neuberger MR dissenting) (1) What was ‘reasonably necessary’ for the purposes of section 231 had to be viewed in context. Other provisions of the act expressed various requirements in more absolute terms, by use of the word ‘must’, and there was no basis for elevating the provision of information to union members to pre-eminence above the proper conduct of the ballot itself as the result itself would be unaffected by small-scale failures in the information process. Section 231 did not set out a method of compliance and it would be absurd if the relevant information could not be conveyed through modern technology such as websites. There was no requirement for ‘active’ dissemination of information and no policy reasons why there might be such a requirement, Network Rail Infrastructure Ltd v National Union of Rail, Maritime and Transport Workers [2010] EWHC 1084 (QB), [2010] 107(16) LSG 14 doubted. In the circumstances, it would be unreasonable to require U to prove that every eligible member had personally been sent his or her own individual information as to the ballot results. U had taken the steps necessary to communicate the results to its members, and the methods adopted (via the website, notice boards and news sheets) had been a sensible and practical approach to the statutory duty imposed by section 231. B had made no complaint about the adequacy of information given before the March 2010 strikes, and no member of the union had made any complaint as to the adequacy of information given. While B could demonstrate that more could have been done by U, it had not persuaded the court that what it had done was insufficient to comply with the requirements of section 231. At trial, it was highly probable that U would persuade the court that its provision of information was sufficient to comply with section 231, and so earn the protection of section 219. The interim injunction was, accordingly, discharged.

(2) (Per Lord Neuberger MR) There was no reason why U could not have communicated by email or text to all its members the information it provided on its website and notice boards. U had not, therefore, taken all the steps of a reasonable and prudent person to ensure that all its members had received the section 231 information as soon as reasonably practicable. There was no good prospect at trial of U establishing that it had complied with section 231 and the judge had been entitled to grant the injunction.

Appeal allowed.

John Hendy QC, Ben Cooper (instructed by Thompsons) for the appellant; David Reade QC, Paul Gott (instructed by Baker & McKenzie) for the respondent.