The unions strike back

The Court of Appeal has ruled in favour of unions Aslef and RMT in a landmark employment case over procedural blocks to strikes.

The unions appealed after the High Court granted interim injunctions stopping a planned strike by Serco and Docklands Light Railway staff because of procedural irregularities in the balloting process.

Delivering its judgment in National Union of RMT v Serco [2011] EWCA Civ 226 last week, the court held that, where Aslef accidentally extended the vote to two non-entitled members, the small accidental failures provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 should have applied.

It held that Aslef’s explanation on the ballot and strike notices “although brief, was sufficient to satisfy the statute and the [High Court] judge misdirected himself as to the specificity required”. It found that RMT’s explanation was adequate and that its notification to the employer complied with the statutory obligation.

Victoria Phillips, head of employment at Thompsons solicitors, says: “This is an important decision which goes against the trend where the ability of trade unions to take collective action has been ruled out by the courts due to small mistakes in the balloting process, therefore undermining the fundamental human rights of trade unions and their members.”

Rob McCreath, partner at Archon Solicitors, says Lord Justice Elias has taken a “notably pragmatic approach to unions’ obligations when balloting for industrial action and notifying employers.

“The main lesson for employers is to think very carefully before applying for injunctions to prevent strikes on the basis of relatively minor mistakes by the unions. The costs for the two employers involved in these cases will have been very substantial indeed and they will also have to meet the unions’ costs—unless, of course, there is a successful appeal.”