Strike Injunctions – The case law continues….

Strike Injunctions – The case law continues….

The Court of Appeal has handed down its decision in The National Union of Rail, Maritime & Transport Workers v SERCO & others. The case was an appeal against two decisions of the High Court in each of which the judge granted an interim injunction, the effect of which is to prevent the appellant trade union from calling upon its members to take industrial action. In London and Birmingham Midland Railway v Associated Society of Locomotive and Firemen (“the ASLEF case”) the injunction was granted by Ramsey J to stop a strike of certain train drivers employed by the Railway due to take place on 23 December 2010. In Serco Ltd v National Union of Rail, Maritime and Transport Union (“the RMT case) the injunction was imposed by Tugendhat J and it prevented a strike of all the union members employed at the London Docklands Railway due to take place on 20-21 January 2011. The two cases raise issues of some difficulty concerning the balloting provisions now contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”).

The ASLEF appeal relied upon substantially the same grounds as part of the RMT case – discussed in my blog last week.

The Court of Appeal held:-

1. The provisions of S232B TULR(C)A 1992 allowing for accidental ballot errors to be disregarded can save a ballot where genuine and ultimately immaterial errors occur, in this case accidentally balloting two members not entitled to vote.

2. The ballot notification provisions of S226A relating to information about the categories of workers entitled to vote only requires disclosure of information in the Union’s possession. Whilst the information is to be as accurate as is reasonably practicable, there is no obligation to generate new information, or improve existing records.

3. The requirement for an explanation as to how the lists and figures of employees in notices under S226A and S234A are reached merely requires explaining how those figures have been arrived at, and it is not onerous. It can be met by complying with paragraph 16 of the relevant ACAS code. The Court observed that the explanation would have to be “positively and materially misleading” before it breached the statutory requirements.

4. There is no obligation on a Union to refer any particular categories of jobs in a notice, the statutory requirements are met by referring to general job categories, regardless of what categories might be used in, for example, pay negotiations.

Union Lawyers will be pouring over this Judgment:

Union Lawyers will be pouring over Paragraph 9 of Lord Justice Elias’s Judgment, which stated as follows (my highlighting):

“There is one respect, however, in which I think that the recognition of a right to strike does have a bearing on the issues before us. Mr Béar QC, counsel for the employers, submitted that since the unions were seeking to take advantage of an immunity, the legislation should be construed strictly against them. There is undoubtedly some authority to support that submission: see for example Express Newspapers v McShane [1979] 1 WLR 390, 395 per Lord Denning MR. But I do not think that it is a sustainable argument today. The common law’s focus on the protection of property and contractual rights is necessarily antithetical to any form of industrial action since the purpose of the action is to interfere with the employer’s rights. The statutory immunities are simply the form which the law in this country takes to carve out the ability for unions to take lawful strike action. It is for Parliament to determine how the conflicting interests of employers and unions should be reconciled in the field of industrial relations. But if one starts from the premise that the legislation should be strictly construed against those seeking the benefit of the immunities, the effect is the same as it would be if there were a presumption that Parliament intends that the interests of the employers should hold sway unless the legislation clearly dictates otherwise. I do not think this is now a legitimate approach, if it ever was. In my judgment the legislation should simply be construed in the normal way, without presumptions one way or the other. Indeed, as far as the 1992 Act is concerned, the starting point it that it should be given a “likely and workable construction”, as Lord Bingham of Cornhill put it in P v National Association of Schoolmasters/ Union of Women Teachers [2003] ICR 386, para.7.

The Full Transcript can be viewed here –

Philip Henson


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