In re P (FC) (a minor by his mother and litigation friend)(Appellant)

A dispute about what work employees must perform, including the application of an existing contractual rule to a particular case, may concern their terms and conditions of employment. The expression has a broad, composite meaning and is not confined to disputes seeking a generally formulated change in contractual rules.

For an industrial-action ballot, entitlement to vote is distinct from the opportunity to vote. Where a union defines the proper constituency and complies with the statutory ballot requirements, an accidental and immaterial failure to send papers to members does not mean that they were denied entitlement to vote. Such an omission may be disregarded under the statutory protections for errors that were unavoidable or accidental and unlikely to affect the result.

A pupil challenged industrial action by teachers who refused to teach him after the school governors had reversed his permanent exclusion. The teachers' union balloted its members at the school, but accidentally omitted two recently transferred members. Twenty-six members voted for the action and none voted against.

Morison J and the Court of Appeal, in [2001] EWCA Civ 652, held that the union retained statutory immunity. The pupil appealed under section 235A of the Trade Union and Labour Relations (Consolidation) Act 1992.

The issues were whether the teachers' objection was a trade dispute concerning terms and conditions of employment and whether the accidental ballot omissions meant that the industrial action lacked the support of a ballot.

1. Appeal dismissed unanimously. Lord Hoffmann delivered the leading speech. Lord Bingham, Lord Hobhouse, Lord Scott and Lord Walker agreed that the union's industrial action remained protected.

2. Per Lord Hoffmann, the dispute was about the teachers' contractual obligation to teach the pupil and therefore concerned their terms and conditions of employment within section 244(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992. “Terms and conditions of employment” is a broad, composite expression. A dispute about what workers must do, at any level of generality or particularity, falls within it. Parliament cannot have intended immunity to depend upon a fine distinction between a contractual rule and its application in a particular case.

3. Lord Bingham formulated the protected subject matter as a genuine dispute relating wholly or mainly to the job which employees are employed to do or the terms and conditions on which they do it. Lord Walker agreed that the expression could not sensibly be restricted to disputes proceeding at a relatively high level of generality. Whether a trade dispute exists is determined objectively and is primarily a question of fact.

4. Per Lord Hoffmann, section 227(1) identifies the constituency which must be accorded equal entitlement to vote. It does not require the union to create a definitive list resembling an electoral roll. Compliance with the ballot-conduct provisions in respect of the properly defined constituency amounts to according its members entitlement to vote.

5. Failure to send a ballot paper does not necessarily establish that entitlement was withheld. Section 230(2) qualifies the distribution requirement by reasonable practicability, while section 232B permits small, accidental failures unlikely to affect the result to be disregarded. Treating every accidental omission as fatal under section 232A would defeat those protections and produce an unworkable result.

6. Lord Walker agreed that entitlement and opportunity were distinct. The constituency was all union members employed at the school. The inaccurate membership record was not definitive, and the omitted teachers had not been deliberately denied voting rights. Any defect therefore fell within one or both exceptions applicable to section 230(2).

7. Looking at the balloting process as a whole, the two omitted members had not been denied or refused entitlement to vote. The industrial action consequently had the support of a ballot, and the union retained its section 219 immunity.

• House of Lords: The appeal was dismissed unanimously. The union's industrial action was held to concern terms and conditions of employment and to have the support of a valid ballot.
• Court of Appeal: In [2001] EWCA Civ 652, reported at [2001] ICR 1241, the court upheld the decision for the union on both issues.
• High Court: Morison J held that the dispute concerned terms and conditions of employment and that the accidental ballot omissions did not deprive the union of statutory protection.