Court of Appeal ruling on strike ballot injunctions
Andrew Burns appeared as junior counsel for the employers in the combined appeals in ASLEF v London Midland and RMT v Serco Ltd [2011] EWCA Civ 226. On Friday, the Court of Appeal discharged the injunctions preventing strike action and held that the minor breaches of the ballot notice provisions in Part V of TULR(C)A 1992 should not stop the industrial action. Elias LJ took the opportunity to review and restate the law on inaccurate ballot notices. He said that the legislation should not be construed strictly against unions. The Court held that the S.232B defence for small, accidental failures applied where the small failure was not intentional (rather than unavoidable or inadvertent).
The Court focussed on the correct construction of section 226A. It looked at the duty to give lists and figures that are ‘as accurate as is reasonably practicable’ in the light of the information in the possession of the union. ASLEF had small, but long-standing errors in its database, but the Court held that the duty was ‘limited’ by what was in the union’s documents rather than just informed by it. There was no implied duty to obtain lists and figures in order to discharge the statutory duty to provide lists and figures, the Court said. It also rejected the submission that the de minimisprinciple had no place in a statute where there were express standards of ‘reasonable accuracy’ and an express exception for some (but not all) small accidental balloting errors. The ‘de minimis’ defence continues to apply to ‘trifling errors’ said Elias LJ.
The main argument in the two appeals concerned the sometimes formulaic and anodyne explanations of how the figures were arrived at, which the unions were obliged by the statute to give in the ballot notices. The Court did not criticise the unions for such an explanation saying that unions need not explain precisely who did what and when. They just need to describe the sources of their data (usually the membership database) and any known deficiencies. Elias LJ added a gloss to the statute saying that errors in the explanation had to be positively and materially misleading in order to remove the statutory immunity from suit.
The Court of Appeal gave permission to appeal to the Supreme Court.
The result of the case was reported by BBC News, the Financial Times, the London Evening Standard, the Press Association and the Daily Express. It has been reported by Lawtel at AC0127897.
Andrew was instructed by Marc Meryon of Bircham Dyson Bell and was led by Charles Béar QC.
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