Civil procedure – Industrial action – Interim injunctions

National Union Of Rail, Maritime & Transport Workers v Serco Ltd (T/A Serco Docklands): Associated Society Of Locomotive Engineers & Firemen v London & Birmingham Railway Ltd (T/A London Midland): CA (Civ Div) (Lords Justices Mummery, Etherton, Elias); 4 March 2011

The appellant trade unions (U and R) appealed against decisions granting interim injunctions preventing them from calling strike action.

The unions had balloted members for strike action. The respondent employers had obtained interim injunctions on the basis that the strike ballot procedures had been contravened so that the unions would be unlikely to be able to show at trial that they were entitled to statutory immunity under the Trade Union and Labour Relations (Consolidation) Act 1992 Pt V. The issues on appeal were (i) whether an error by U in balloting two members who ought not to have voted was accidental so that section 232B applied and the failure to comply could be disregarded; (ii) the nature of the requirement to give information in the ballot notice and strike notice under section 226A and section 234A respectively; (iii) whether the doctrine of de minimis could apply to a breach of the duty to provide accurate figures; (iv) the nature of the explanation to be given for arriving at the figures provided under section 226A and section 234A.

Held: (1) There was a distinction between the entitlement to vote and the opportunity to vote, P v National Association of School Masters Union of Women Teachers (NASUWT) (2003) UKHL 8, (2003) 2 AC 663 applied. The opportunity to vote was given to two members by U when it ought not to have been. But it did not follow that they were given an entitlement to vote. Thus the relevant statutory provision in issue was section 230(2) and not section 227. Section 230(2) did not in terms state that those not entitled to vote should not be given that opportunity, but that should be implied. However, the defence under section 232B applied whichever section was infringed. The judge was wrong to hold that to be accidental within section 232B an error had to be both unintentional and unavoidable. Where section 230(2) was infringed, the premise was that the union had not done what was reasonably practicable to prevent those not entitled to vote from voting. The only question was why it had failed to prevent them voting. If it conferred the opportunity to vote on those whom it knew or must have known would not subsequently be induced to take part in the strike then it could not rely on the exception. In the instant case U believed that it was balloting the relevant train drivers and no-one else. Because of human errors and failings, it did not achieve that objective but extended the vote to two members not entitled to it. Section 232B was designed to cater for precisely that kind of case, and the judge was wrong not to apply the section, British Airways Plc v Unite the Union (2009) EWHC 3541 (QB), (2010) IRLR 423 distinguished (see paragraphs 47-57 of judgment).

(2) The judge erred in law in holding that U was under an obligation by virtue of the notification duty under section 226A and section 234A to obtain further information or alternatively to set up systems to improve its record keeping. The information given by U in the ballot notification and strike notification was as accurate as was reasonably practicable given the information in its possession at the material time (paragraphs 58-77). (3) The de minimis doctrine was available and would have applied in circumstances where U wrongly identified two out of more than 600 members (paragraphs 78-87). (4) The duty to explain how the figures provided to the employer under section 226A and section 234A were arrived at was not an onerous one and was met by complying with paragraph 16 of the relevant code of practice which recognised that it was not reasonable to expect union records to be perfectly accurate and that would be so even with respect to the limited information which the union was required to keep, Metrobus Ltd v Unite the Union (2009) EWCA Civ 829, (2010) ICR 173 considered. More information could have been provided, but the explanations actually given were sufficient to meet the statutory standard. The phrase ‘auditing and updating’ used by the unions in the notices was a fair description, albeit not the best description, of the ballot-specific review and updating of their databases carried out by the unions in addition to the usual updating. The use of the word ‘audit’ was not so inapt or misleading as to justify the conclusion that it defeated the statutory purpose. Even if that was wrong, the misdescription would not invalidate the explanation (paragraphs 88-105, 111-116).

Appeals allowed.

John Hendy QC, Rohan Pirani (instructed by Mann Thompson) for the first appellant: John Hendy QC, Oliver Segal (instructed by Thompsons) for the second appellant: Charles Béar QC, Andrew Burns (instructed by Bircham Dyson Bell LLP) for the respondents.