Industrial Action Balloting Practice endorsed in Ryanair v BALPA

Ryanair applied to the High Court on short notice for an interim injunction to restrain BALPA from calling industrial action in August and September 2019.  In a judgment on 21 August 2019 Mrs Justice Lambert held that Ryanair had not put forward good reasons for not giving the required 3 days’ notice, but went on to decide the substantive application as BALPA had managed to serve its evidence and submissions in time.  After hearing submissions from Andrew Burns QC for BALPA, she dismissed Ryanair’s challenges and refused to grant an injunction to prevent the strikes on the basis that BALPA had protection of the trade dispute ‘golden formula’ under s.219 Trade Union and Labour Relations (Consolidation) Act 1992.

The Court endorsed the normal practice of trade unions and independent scrutineers of having a cut-off date 7 days from the end of a longer ballot during which new members or members who needed a new ballot paper could no longer vote.  Ryanair alleged that this was a breach of s. 227 TULRCA 1992 as up to 12 pilots who joined BALPA during the ballot period were ‘denied an entitlement to vote’.  Lambert J applied P v NASUWT [2003] ICR 386 and s.230(2) to find that it was not ‘reasonably practicable’ to send ballot papers after the cut-off period and so that did not amount to a denial of their entitlement to vote under s.227.  She referred to the Code of Practice on Balloting which recommends 7 days as the normal minimum to return ballots by first class post (postal ballots being mandatory under TULRCA 1992).

The Judge also dismissed Ryanair’s other challenges. She held that the ballot paper contained a sufficient summary of the matters in dispute for the purposes of s. 229(2B) (added by the Trade Union Act 2016) as it set out the broad headings of the matters in dispute.  The ballot paper complied with s. 229(2D) in specifying the window during which industrial action would take place.  BALPA has provided a sufficient explanation of how the figures in the Strike Notice were ‘arrived at’ such as to comply with s. 234A.  Previous case law made clear that a short and formulaic standard explanation is sufficient and s.234A only required an explanation of how the figures were compiled not why they were different from the number in a previous notice.

Lambert J agreed that the errors relied on by Ryanair were trivial technicalities and fell within the principles of de minimis and “substantial compliance” referred to by Elias LJ in RMT v Serco [2011] ICR 848.  She applied the dicta of Smith LJ in British Airways v Unite (No.2) [2010] ICR 1316 that it was not Parliament's intention to allow a minor infringement which has had no adverse effect on anyone's rights or interests to invalidate the ballot.

Andrew Burns QC represented BALPA with Stuart Brittenden instructed by Farrer & Co.

This case has been covered in the national press, including The Times, The Telegraph, and BBC.

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