You can see why Unite the Union would be cross. To have had the long and winding process of organizing large scale industrial action end in an injunction granted over 11 spoilt ballot papers out of the thousands returned seems downright bizarre. Welcome to the world of industrial action law.
The starting point for understanding what went on in the High Court yesterday is to understand that in the eyes of the law industrial action starts out as an illegal activity. Individual employees are breaching their contracts of employment in taking part in a strike (whether or not there is a ballot) but suing each individual for that is not practicable because of the difficulty in showing that one individual has caused the employer any loss. After all, if that individual had turned up for work instead, there would still have been a strike.
The union, on the other hand, is the one who has induced all of these individuals to break their contracts and that is an illegal act in itself. If statute law did not intervene, therefore, strike action would always involve the union committing the tort of inducing a breach of contract (plus a few others we needn’t go into) and the employer could prevent it by getting an injunction against the union preventing it from calling the strike.
In the 19th Century however it was acknowledged that the right to take strike action was an essential – or at least unavoidable – aspect of a free society and so unions were granted immunity from actions in tort that were committed in contemplation or furtherance of a trade dispute.
Fast forward to 1979 and the incoming Conservative Government was of the widely shared view that the untrammeled power of trade unions to take industrial action was being abused and was harming the national interest. Over the next 18 years the Government whittled away at that immunity, providing that it would be lost if the union failed to comply with a number of procedural requirements, chief of which was the holding of a ballot subject to independent scrutiny.
And here is the point. Those provisions – which are now to be found in the Trade Union and Labour Relations (Consolidation) Act 1992 – are incredibly detailed and onerous. They dictate precisely how the ballot is to be conducted, who should be entitled to vote, what the ballot paper should say, what notices must be given to the employer and how the results of the ballot should be communicated. These are, by and large, all or nothing provisions. If they are breached then the Act expressly provides that immunity is lost. One low key, but important, change introduced by the last Government provided that in the conduct of the ballot, small accidental failures that would not affect the result should be disregarded.
That small exception does not apply, however, to S.231 of the Act which requires the union to take all reasonable steps to inform employees who were entitled to vote in the ballot of its outcome. That section says explicitly that informing employees of the result means telling them the number of votes cast infavour, the number cast against and the number of spoilt ballot papers. It seems that the information given by Unite to its members did not include the number of spoilt ballot papers and was therefore in breach of the clear requirements of S.231. Accordingly, immunity is lost, the strike is an unlawful inducement to breach contracts of employment and BA are entitled to prevent the union from taking the action.
It is of course a technicality – but the law is full of technicalities. The last Conservative Government thought up as many technicalities as they could and made them a legal requirement in order to reduce a union’s ability to take industrial action. The breach does not affect the overall fairness of the balloting process – but overall fairness is not a requirement of the Act, slavish compliance is. In considering whether to grant an injunction I don’t see how the court can take into account the minor nature of the breach when the Act is so clear that if the information is given then immunity is lost. Without that immunity it is unarguable clear that the union is unlawfully inducing a major breach of contract and BA is entitled to be protected from that.
Now if, I were writing industrial action law, I wouldn’t write it this way – and there are arguments that our law breaches ILO Conventions and possibly the European Human Rights Convention . But Unite has to deal with the law as it is, rather than as they would like it to be. With the stakes so high, and with one injunction against them already in this dispute, I would have thought that extra care would be taken to get it right. Who signed off the email to the members giving the ballot result? Which lawyers were involved and why didn’t they have S.231 open in front of them when they signed off that communication?
Yes I can see why Unite are cross – but they should also be asking some serious questions about their internal processes. It’s starting to look like they can’t organize a lawful strike and that sort of reputation can be fatal for a union.
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