Gatwick Express, R (on the application of) v Central Arbitration Committee

Judicial review of a Central Arbitration Committee decision is available where the Committee has erred in law or acted irrationally. A Committee cannot add requirements to the statutory test for deciding whether a significant number of union members oppose recognition. It must assess relevant evidence rationally and must not treat the absence of union resignations as determinative where the statutory question concerns members’ opposition to recognition. The court will ordinarily quash and remit an unlawful decision, respecting the decision-making territory assigned to the Committee. Where the parties agree the statutory condition is satisfied, however, the court may make an order directing the Committee to proceed to a secret ballot, particularly where that accords with the informal and expeditious nature of the statutory process.

Gatwick Express applied for judicial review of a decision by the Central Arbitration Committee concerning TSSA’s application for recognition as bargaining representative for a defined bargaining unit. The unit contained 38 workers, 20 of whom were union members. Eight union members had signed standard-form letters opposing recognition, seven of which had been sent to the Committee through Gatwick Express’s Human Resources Department.

The Committee gave the letters no evidential weight and concluded that the qualifying condition in paragraph 22(4)(b) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 was not satisfied. The central issues were whether that approach was unlawful or irrational and whether the court should remit the matter or direct the Committee to arrange a secret ballot.

1. The application for judicial review succeeded. The CAC’s decision was quashed.

2. The applicable standard was that judicial review lay if the CAC had acted irrationally or made an error of law, as stated in R v Central Arbitration Committee ex parte Kwik-Fit (GB) Ltd [2003] EWHC 277 (Admin).

3. The CAC had committed overwhelming errors of law and irrationality. It had effectively introduced a requirement that objections be communicated directly to the CAC by the workers and in writing. It treated the use of the employer’s Human Resources Department as destroying the evidential value of the letters, despite the absence of evidence that the signatories had been compelled to sign or return them. It accepted one identical letter because it had been sent directly to the CAC, although all the letters were before the panel. Its statement that the letters had not been received by the CAC was irrational. The fact that signatories had not resigned from the union was also an irrelevant consideration in assessing whether a significant number of union members opposed recognition.

4. The court would ordinarily have remitted the issue whether eight of twenty union members constituted a significant number, since that question lay within the CAC’s statutory territory. The court nevertheless directed the CAC to give notice that it intended to arrange a secret ballot because Gatwick Express and TSSA agreed that the statutory condition was satisfied. That course avoided unnecessary formality and reflected the informal and speedy character of the Schedule A1 process, described in R (on the application of British Broadcasting Corporation) v Central Arbitration and BECTU [2003] EWHC 11375.

5. The CAC was ordered to give notice in accordance with paragraph 22(3) of Schedule A1 and to hold the secret ballot in accordance with the relevant provisions. No order as to costs was sought.

The judgment describes the CAC’s decision promulgated on 11 July 2003, which recognised TSSA but refused to treat the statutory qualifying condition as satisfied. The Administrative Court quashed that decision and directed the CAC to give notice of its intention to arrange a secret ballot.