Industrial action ballots and notice to employers

To achieve this, the law requires that there is a ballot of employees in accordance with strict legal requirements, before industrial action is called for or endorsed. Only where such a ballot produces a majority in favour of industrial action and at least 50 per cent of those eligible to vote have voted will the action be lawful. Further in the case of important public services, at least 40 per cent of those eligible to vote must have voted to support the action.

Legislation in this area is supplemented by the Code of Practice: Industrial action ballots and notice to employers updated by the Secretary of State in March 2017 which, although without legal force, can be taken into account in any court proceedings.

Ballots

Set out below are the requirements that must be met by trade unions conducting an industrial action ballot.

Entitlement to vote

All and only those workers who are going to be called upon to take industrial action must be included in the ballot. For a ballot to be considered valid, entitlement to vote must be 'accorded equally to all members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part, or as the case may be, to continue to take part in the industrial action in question, and to no others ('Trade Union and Labour Relations (Consolidation) Act 1992  (TULR(C)A s.227).

If the union fails to do everything that is reasonably practicable to ensure the correct workers take part in the ballot, the courts may declare the ballot invalid. For example, in RMT v Midland Mainline Ltd [2001] IRLR 813, the Court of Appeal held that the union failed to comply with the requirement on two counts. Firstly, it did not take all reasonably practicable steps to ensure that they held the correct information regarding their members' jobs and grades. Secondly, the union failed to properly inform the employer and the union members of a union policy to exclude from the ballot any members who were in arrears of their contributions. The ballot was therefore found to be invalid and the injunction preventing industrial action upheld.

However, TULR(C)A does provide an exception to this requirement. If there is an accidental failure to comply with the requirement on a scale 'unlikely to affect the result of the ballot' (TULR(C)A s.232(B)), that failure can be disregarded. In P v National Union of Schoolmasters/Union of Women Teachers [2001] IRLR 532, (Word 38Kb) the Court of Appeal rejected the complaint raised by P that the union had not correctly followed the balloting procedures by failing to send the ballot papers to all their affected members. The failure was due to a discrepancy that was rectified before the closure of the ballot and affected only two members. The Court held that the failure was minimal and unlikely to affect the outcome of the ballot. Therefore the ballot was lawful.

The Employment Relations Act 1999 clarified the position where the trade union calls out members who may have joined after the industrial action started, and who may as a result not have been balloted. The current legislative position reflects the decision in London Underground Ltd v RMT [1996] ICR 170, where the Court of Appeal held that the union did not lose immunity provided by the ballot by calling out members recruited after the action started.

Notice of ballot

Notice of an industrial action ballot must be provided by the trade union. This notice must be received by anyone who it is reasonable for the union to believe is an employer of any of their members covered by the ballot, not later than the seventh day before the opening day of the ballot (the first day the ballot paper is sent out). It must state that the union intends to hold a ballot and the opening day of the ballot.

The notice must also contain:

• A list of the categories of employee to be called out (e.g. teacher) and a list of the workplaces at which they work.
• The total number of the employees affected, the number in each category and the number in each workplace.
• An explanation of how these figures were arrived at should also be provided.
• Alternatively, where some or all of the employees concerned pay subs to the union through check-off, the union can instead provide information which will allow the employer to 'readily deduce' the above information.

The Act specifically provides that a union is not required to disclose the names of those who will be called out.

Further guidance can be found in the code of practice on 'Industrial Action Ballots and Notice to Employers'.

Sample ballot

Not later than the third day before the ballot the employer(s) must receive a copy of the ballot paper (or each form of ballot paper to be used if this varies).

Ballots in each workplace

The general rule is that separate ballots must take place at each workplace where those members entitled to vote work at more than one workplace. This prevents majority votes for industrial action in one workplace, from forcing voters in another workplace to take action where they have not voted to do so. However, there are wide exceptions that allow for single and aggregated ballots.

Workplace in this context means the premises at which an individual works (or the premises that they have the closest connection with if they do not work at one place). Separate ballots should therefore cover individual working sites.

Aggregated ballots

Aggregated ballots are allowed instead of separate workplace ballots in three sets of circumstances, these roughly being a common interest in the subject matter of the dispute; common occupation(s); or a common employer(s).

A union must not be selective over entitlement to vote. All members that fulfil the criterion chosen must be included in the ballot. If, for example, a union wished to exclude one qualifying workplace from the ballot it would have to organise separate workplace ballots.

In a large aggregated ballot, a union may have problems in identifying those members who should receive ballot papers and ensuring they receive them. In British Railways Board v National Union of Railwaymen [1989] IRLR 349, the Court of Appeal distinguished between deliberate attempts on the part of the union to deny some members their entitlement to vote (which would be unlawful) and a union inadvertently failing to give members (or giving the wrong members) an opportunity to vote. The union must do all that was reasonably practicable to ensure that administrative errors are minimised.

Any national industrial action will be based on an aggregated ballot. Local or regional action may follow either aggregated or single workplace ballots. Much will depend on the issues involved and the approach of the union.

The ballot paper

The ballot paper used for an industrial action ballot must meet specific legal requirements. These are that the ballot paper includes:

• A summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates. 
• A question asking voters, which can be answered with either a 'Yes' or a 'No', whether they are prepared to take part, or continue to take part, in strike action and/or a question asking whether they are prepared to take part, or continue to take part, in industrial action short of a strike. A union cannot 'roll up' both questions in one sentence. They must be asked separately if the action is to involve both forms of industrial action.
• Where the voting paper contains a question about taking part in industrial action short of a strike, the type or types of industrial action must be specified (either in the question itself or elsewhere on the voting paper)
• The period or periods within which the industrial action or, as the case may be, each type of industrial action is expected to take place

• The statement: "If you take part in a strike or other industrial action, you may be in breach of your contract of employment. However, if you are dismissed for taking part in strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than twelve weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later."

This statement must not be qualified or commented on by the union in any way (even where, for example, the industrial action contemplated would not in fact be a breach of contract).

• The name(s) or descriptions of persons who have authority to call for industrial action, the name of the independent scrutineer, and the address to which, and the date by which, the ballot paper is to be returned. ·

• A series of consecutive numbers (to prevent copying).

There is nothing to prevent the union from adding more information, provided it does not prevent the above requirements from being met, and that it does not encourage those taking part in the ballot to vote in a particular way.

The Employment Relations Act also reversed the decision in Connex South Eastern LTD v RMT [1999] IRLR 249 (Word 34Kb), where the Court of Appeal held that a trade union ban on overtime and rest-day working was within the statutory definition of a 'strike'. Therefore, overtime and call-out bans are to be treated as action short of a strike (other industrial action, as opposed to full-scale strike) for the purposes of s 229(2) of TULR(C)A.

Ballot administration

Workplace ballots are no longer lawful and consequently all industrial action ballots must be fully postal. Members must be allowed to vote in secret, without interference or constraint from the union and at no cost to themselves. The Code of Practice: Industrial action ballots and notice to employers, clarifies and summarises the current legislative position.

TULR(C)A also requires trade unions to appoint an independent scrutineer to oversee each industrial action ballot they hold. This requirement does not apply to ballots covering 50 or fewer members, but the numbers involved in separate workplace ballots (who are involved in the same dispute) should be aggregated for this purpose.

The main role of the scrutineer is to prepare a report on the conduct of the ballot, stating whether all legal requirements have been met in relation to the ballot. They must also report on whether the administrative arrangements (production, storage, distribution etc of the ballot paper) were reasonable in minimising the risks of unfairness and malpractice and whether they have been allowed to carry out their functions without interference from the union.

This report must be produced as soon as is reasonable after the date of the ballot, but within four weeks of that date. Any person entitled to vote in the ballot and any employer of such a person can, within six months of the ballot, request a copy of the report. This must be supplied by the union as soon as is reasonably practicable, either free of charge or at a reasonable fee.

The ballot results

After the ballot has occurred, the trade union have a legal obligation to supply employers with the following information on the ballot results:

• the number of individuals who were entitled to vote;
• the number of votes cast,
• the number of yes and no votes to each question, 
• whether the number of votes cast is at least 50 per cent of those entitled to vote 
• where the “important public services” requirements apply (see below), whether the number of those answering ‘Yes’ to the question(s) is at least 40 per cent of those entitled to vote; and 
• the number of spoiled papers

Where separate workplace ballots occur, results must be supplied for each separate ballot. However, where votes are aggregated across a number of workplaces (e.g. where a national ballot occurs), individual employers will only be entitled to the figures relating to the overall ballot. The union must supply the same details to all of their members who were entitled to vote in the ballot. 

As mentioned above, at least 50 per cent of those entitled to vote must have voted in order for a majority vote in favour of industrial action to be a valid ballot result supporting industrial action.

Where the majority of those who were entitled to vote are normally engaged in providing important public services then at least 40 per cent of those entitled to vote must vote “yes” to the industrial action proposed. For example, if 100 employees are entitled to vote and the majority of them are engaged in important public services and 50 of them vote, then 40 of those that vote must vote “yes”.

The following services that are defined as important public services are likely to be of most relevance to local authorities (Note: the important public services provisions do not apply where a service is provided by a devolved Welsh Authority, which includes county, county borough and community councils; fire and rescue authorities and governing bodies of schools maintained by Welsh local authorities.).

Education of those aged under 17

This covers teaching and other services provided by teachers and persons appointed to fulfil the role of headteacher or principle at:

• a school other than a fee paying school
• a 16-19 Academy, or
• a further education institution other than one whose services to persons of compulsory school age are not publicly funded

Therefore, school support staff are not covered.

Fire services

This covers:

• Services provided by firefighters in extinguishing fires and protecting life and property in the event of fires; and
• Services provided by fire and rescue authority personnel in dealing with, and organising a response to, a call made from a telephone or other device to request the services provided by firefighters

When can calls for industrial action be made?

Trade unions are prevented by law from calling on their members to take industrial action before the date of the ballot (the last day on which votes may be cast). However, unions are entitled to be partisan and campaign for a 'yes' vote in an industrial action ballot.

Who can call for industrial action?

A call for industrial action can only be lawfully made by the person specified to do so on the ballot paper. The specified person can be any person who can authorise such acts under the union's rules, the principal executive committee, president or general secretary, or any other committee or official of the union.

When can the action start?

Where the ballot opened on or after 1 March 2017 it will only be effective for and mandate industrial action that takes place within six months, beginning with the date of the ballot (which is the date the ballot closes). The six-month time limit can be extended to nine months if the union and employer agree.

This provision does not apply to ballots commenced before 1 March 2017. In those cases, provided the industrial action started within four weeks (or eight weeks with the employer’s agreement) of the close of the ballot, then there is no absolute limit on the period for which such action can be taken on a continuous or discontinuous basis.

Where the start date of the action is delayed following an injunction or court proceedings prohibiting the union from calling for industrial action during either the six month or the four-week period, a trade union can apply to the court for an order which, if made, would provide that the period in which the prohibition had effect would not count towards the four week or six month limit. Under no circumstances however, will a union have immunity if it first calls for industrial action more than 12 weeks after the date of the ballot.

Notice of industrial action

For all industrial action, whether or not the ballot took place before or after 1 March 2017, 14 days' notice must be provided to all relevant employers (any who employ members who will be called upon to take action) before industrial action can begin, unless the employer(s) and union agree to seven days’ notice. So if action is to begin on, for example, a Wednesday, notice must reach the employer on or before the Wednesday two weeks before. The notice must state it is being given for the purposes of s.234A of TULR(C)A and contain:

• A list of the categories of employee to be called out (e.g. teacher) and a list of the workplaces at which they work.
• The total number of the employees affected, the number in each category and the number in each workplace. An explanation of how these figures were arrived at should also be provided.
• Alternatively, where some or all of the employees concerned pay subs to the union through check-off, the union can instead provide information which will allow the employer to 'readily deduce' the above information.

The Act specifically provides that a union is not required to disclose the names of those who will be called out.

• State whether the action will be continuous or discontinuous. Where it is to be continuous, the date on which it will start must be specified. Where it is to be discontinuous, the intended dates on which it will occur must be given.

In the case of 1 March 2017 and subsequent ballots, further discontinuous action can within the six/nine month period as long as:

• further action is a continuation of the same trade dispute.
• a further 14 (or seven if agreed) days' notice is provided.

In the case of pre-1 March 2017 ballots, discontinuous action can take place without limit, but again provided:

• further action is a continuation of the same trade dispute
• a further 14 (or seven if agreed) days' notice is provided.

The notice will cover discontinuous action provided it occurs on a day that has already been specified in a notice. Failure to take action on any of the specified days will not render previous or future action unlawful.

If continuous action is called off or suspended other than by reason of a court order or undertaking, a fresh 14 (or seven if agreed) days' notice must be given before action is resumed.

Where the union suspends industrial action for the purposes of negotiation with the employer, but then seeks to revive the action when negotiations break down, it is unclear under current legislation whether a fresh ballot would be required. However, in Monsanto plc v TGWU [1987] ICR 269, following a ballot, industrial action took place, but was postponed for ten days to allow negotiations to take place with a view to resolving the dispute. The negotiations were unsuccessful and the industrial action was revived. The employer successfully applied for an interlocutory injunction at the High Court, but this was lifted on appeal. The Court of Appeal held that the unions' action was 'not a discontinuance of the industrial action but a temporary suspension for the purposes of negotiation', and that if the negotiations failed and industrial action resumed, 'statute or good industrial relations [do not] require a further ballot at each stage'.