Metrobus Ltd v Unite the Union

A trade union must inform the employer of a ballot result as soon as reasonably practicable. This is a free-standing duty and does not await a decision to call industrial action.

Where a notice supplies figures for employees who do not pay subscriptions through check-off, it must explain how those figures were obtained or provide information from which the employer can readily deduce the required figures. A mistaken figure which the union was not required to provide does not invalidate the notice where the employer received the information necessary to ascertain the correct position.

These procedural requirements strike a proportionate balance between trade union freedom and employers’ interests. They therefore require no modified interpretation under article 11 of the Convention.

Metrobus obtained an interim injunction restraining Unite from calling a further strike. The High Court found fatal defects in the ballot notice and strike notices and held that the union had not informed Metrobus sufficiently promptly of the ballot result.

Unite appealed after the proposed strike had ceased to be a live issue. It challenged the interpretation of the notice requirements in the Trade Union and Labour Relations (Consolidation) Act 1992, the significance of numerical mistakes and the compatibility of those requirements with article 11 of the European Convention on Human Rights.

The central issues were whether the union had complied with sections 226A, 231A and 234A and whether those provisions imposed disproportionate restrictions upon lawful industrial action.

1. Appeal dismissed. The union had failed to comply with section 231A and, by a majority, with the informational requirements governing the ballot and strike notices. Those failures were sufficient to sustain the interim injunction.

2. Section 231A creates a free-standing obligation to communicate the ballot result to the employer as soon as reasonably practicable. Compliance does not depend upon a later decision to call industrial action. The statutory formula requires communication at the earliest time reasonably achievable. Unite could and should have obtained the result from the scrutineer by the end of the ballot day and passed it on promptly. Even on receipt the following afternoon, it should have sent the information that day. Its internal requirement for authorisation did not justify further delay.

3. By a majority, the notices did not comply with sections 226A and 234A in relation to employees who did not pay subscriptions through check-off. Lloyd LJ held that supplying their lists and figures required an explanation of how the figures had been obtained. The President agreed that merely supplying unexplained figures did not constitute information from which the employer could deduce the figures for itself. Maurice Kay LJ dissented on this issue: he considered that, in a mixed workforce, the union could use the readily-deducible-information route for all affected employees and that the notices complied.

4. The numerical errors concerning check-off employees did not invalidate the strike notices. The union had used the statutory alternative which enabled Metrobus to ascertain the relevant employees from its own records. It was unnecessary to state a total for those employees or a combined total. An error in such surplus information was not a failure to satisfy the Act. The court left open the treatment of a trivial error in a figure which the union was required to provide.

5. The requirements were proportionate under article 11. They pursued legitimate democratic and informational purposes and balanced trade union rights with employers’ interests. The duties to communicate the result promptly and explain figures derived from union records were neither excessively onerous nor difficult to perform. Section 3(1) of the Human Rights Act 1998 therefore required no departure from the ordinary construction of the legislation.

6. Permission to appeal against the judge’s exercise of discretion was refused. It was no longer useful to reconsider how the interim discretion should have been exercised after the proposed strike had passed.

1. Court of Appeal (Civil Division): The appeal was dismissed. Permission to appeal against the discretionary grant of relief was refused. The court upheld the injunction on the remaining statutory defects, while rejecting the conclusion that surplus numerical mistakes invalidated the notices: [2009] EWCA Civ 829.

2. High Court, Queen’s Bench Division: King J granted an interim injunction on 9 October 2008 restraining Unite from calling the proposed strike. He found defects in the ballot notice and strike notices and a failure to notify Metrobus promptly of the ballot result. No citation is stated in the judgment.