LawFlash

UK Court of Appeal Upholds Injunction Following Breach of Strike Ballot Rules

January 16, 2020

Royal Mail has successfully persuaded the United Kingdom’s Court of Appeal to uphold an injunction halting plans for a Christmas strike by postal service workers due to alleged breaches of the procedural requirements for strike ballots. This landmark decision provides key guidance on the interpretation and application of Section 230 of the UK Trade Union and Labour Relations (Consolidation) Act 1992, which protects members voting in union-organised strike ballots from union and co-worker pressure.

Employees going on strike or engaging in other industrial action will almost always be breaching their employment contracts. For this reason, to ensure that they and their members can rely on statutory immunity from certain actions (including civil lawsuits and dismissals) by their employers, trade unions looking to organise industrial action in the United Kingdom must comply with several conditions prescribed by legislation. Strikes carried out in accordance with those conditions can therefore be described as “lawful strikes.”

One condition for a lawful strike is that a majority of individuals voting in a ballot conducted by the union must indicate their support for the strike (with at least 50% of those entitled to vote having done so) no earlier than six months before the strike. When conducting these ballots, the union must ensure that it complies with certain procedural requirements specified by legislation.

Section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Ballot Legislation) sets out some of these procedural requirements. Amongst other things, it requires the unions to ensure that individuals entitled to vote in the ballot (a) are allowed to vote without interference from, or constraint imposed by, the union; and (b) have their voting papers sent by post to their home addresses.

In addition, the union must conduct the ballot in a way that ensures that, so far as reasonably practicable, voting is carried out in secret.

The Facts

In Royal Mail Group Ltd v Communication Workers Union [2019], Royal Mail Group Ltd (Royal Mail) sought an interim injunction preventing members of the Communication Workers Union (the Union) from going on strike during the Christmas period, arguing that the Union had failed to comply with the Ballot Legislation’s procedural requirements.

Having decided to strike in response to a dispute with Royal Mail over job security and employment terms, the Union began to follow the process prescribed by the Ballot Legislation. Once ballots had been posted to employees, the Union—looking to ensure a high turnout and encourage its members to support the strike—began to campaign for “yes” votes through both traditional and electronic avenues (including social media).

However, according to Royal Mail, the Union in the course of this campaign had breached the Ballot Legislation by telling members to

  • find their voting papers in the delivery offices where they worked (rather than waiting for them to be delivered to their homes);
  • complete their voting papers at work; and
  • film themselves voting “yes” in groups and post those videos on social media (the Mass Posting Events).

Royal Mail’s primary argument was that, in breach of requirement (a) above, there had been “interference” by the Union in the ballot process. Further, Royal Mail contended that the Union had breached the requirements to send voting papers to members’ home addresses and to ensure that voting was carried out in secret.

The Judgments

High Court

The English High Court, which originally heard the case, agreed that the Union’s actions constituted interference and that the other two requirements had been breached. In reaching these conclusions, Mr Justice Swift rejected the Union’s arguments that because it had encouraged rather than instructed its members, there had been no interference; he held that encouragement can be sufficient to amount to interference in certain contexts.

In addition, the judge concluded that requirement (b) had been breached because the Union’s actions had prevented the process anticipated by the Ballot Legislation from taking place. He also concluded that while the Mass Posting Events did not themselves breach the secrecy obligation, videos of the events from social media showed that voting had not been kept secret.

The Union appealed the High Court’s decision, arguing that it had erred by

  • finding interference in breach of requirement (a) even though there had been no coercion, fraud, or intimidation by the Union;
  • failing to recognise that requirement (b)’s purpose was to ensure that members were not prevented from receiving voting papers and returning their votes; and
  • interpreting requirement (b) as creating an obligation for the voting paper to be received at home addresses.

The Union also suggested that its conduct had no material effect on the overwhelming mandate for the strike shown in the ballot’s results, and that the Ballot Legislation amounted to a disproportionate interference with the right to strike under Article 11 of the European Convention of Human Rights.

Court of Appeal

The UK Court of Appeal (CoA) dismissed the Union’s appeal and unanimously upheld the High Court’s decision, albeit with some hesitation on the part of certain judges. Crucially, the CoA interpreted “interference” widely to mean any act by unions that prevents or hinders the process in the Ballot Legislation (being the process by which Parliament intended ballots to be conducted) from running its ordinary course. In this case, the CoA noted that the Union’s plan to promote immediate workplace voting subverted the fully postal ballot contemplated by the Ballot Legislation.

Further, the CoA disagreed with the Union’s arguments as to the purpose of requirement (b). It held that by enacting the Ballot Legislation (and subsequently amending the legislation to specifically remove the right to hold workplace ballots), Parliament had expressly contemplated voters receiving their ballot papers at home to enable them to consider freely how to vote away from co-worker pressure. As such, even if the Union's actions meant that voting papers were received by members, the fact that the Union took steps to ensure voting papers were not received by members at their home addresses was contrary to requirement (b).

The CoA also dismissed the Union’s human rights arguments. It did, however, accept that the Mass Posting Events did not breach the secrecy obligation due to the small number of workers involved.

What Does This Mean?

The CoA’s decision contains important guidance on a provision that aims to guarantee that strike ballots are carried out in a fair and transparent manner using a process that allows members to exercise their right to vote freely. Although the facts of this case are unlikely to reoccur (as employees in other sectors and industries cannot typically access their voting papers before delivery), employers will welcome the CoA’s expansive interpretation of “interference” as offering another avenue by which planned strikes can be challenged. Indeed, employers may wish to pay close attention to—without taking action to interfere or inhibit—the conduct of ballots with a view to identifying any deviations from the process stipulated by the Ballot Legislation.

That said, employers must not be too quick to claim that a breach of the Ballot Legislation has occurred and try to take action accordingly. Indeed, as the CoA made clear, the Ballot Legislation does not introduce a wholesale prohibition on unions campaigning and encouraging members to vote in favour of strikes.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

London
Matthew Howse
Lee Harding
Jessica Rogers