British Airways Plc v Unite the Union

For the statutory immunity for industrial action to be available, a union must comply with the ballot-result information duty in section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992. The duty requires the steps which a reasonable and prudent union would consider necessary, in the practical circumstances, to ensure that eligible voters can obtain the four prescribed figures. It does not invariably require personal delivery of the information to every voter.

Electronic publication and physical distribution may suffice where they are effective and readily accessible for the particular membership. The court must assess the actual steps taken, rather than whether every additional means of communication could have been used.

British Airways sought damages and an interim injunction to restrain Unite from calling further cabin-crew strikes. Unite relied on statutory protection for industrial action following a ballot conducted between 25 January and 22 February 2010.

The ballot was properly conducted and produced a substantial majority for industrial action. British Airways contended that Unite had forfeited protection because it had not complied with section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992, which requires specified ballot-result figures to be communicated to persons entitled to vote.

McCombe J granted an injunction on 17 May 2010. Unite appealed. The central issue was whether the communication methods used by Unite, including websites, noticeboards and paper copies in crew-report areas, were likely to satisfy section 231 at trial.

1. Appeal allowed by a majority. The Lord Chief Justice and Lady Justice Smith concluded that Unite was likely at trial to establish compliance with section 231. The interim injunction was discharged. The Master of the Rolls dissented.

2. Section 231 requires a union, as soon as reasonably practicable after the ballot, to take steps which are reasonably necessary to ensure that eligible voters are informed of each prescribed item. The majority held that this calls for the steps which a reasonable and prudent union would regard as necessary in the practical circumstances. It does not require proof that every voter was personally sent an individual report.

3. The statutory wording does not prescribe a method of communication. Personal communication may be appropriate in some cases, but websites and other electronic means may satisfy the duty where the membership is computer-literate, has ready internet access and habitually uses those channels. The question is whether the methods actually adopted were sufficient, not whether the union could have used every conceivable additional method.

4. On the evidence, Unite had promptly placed the full Electoral Reform Services report on its websites and distributed or displayed hard copies at the relevant crew-report centres. In the context of a highly engaged and electronically connected workforce, the majority considered those steps a sensible and practical means of communicating the full statutory result. The judge had underestimated the strength of Unite's defence by treating direct, active communication as effectively indispensable.

5. Lady Justice Smith further stated, obiter, that substantial compliance with section 231 should suffice where any shortcoming is minor, inconsequential and has not adversely affected rights or interests. The Lord Chief Justice found it unnecessary to decide that alternative submission.

6. The Master of the Rolls would have dismissed the appeal. In his view, although the standard was practical and reasonable, Unite's texts and emails to subscribed members should readily have included all four statutory figures. Their omission made compliance unlikely.

• Court of Appeal (Civil Division): Allowed Unite's appeal by a majority and discharged the interim injunction: [2010] EWCA Civ 669.
• High Court (Queen's Bench Division, McCombe J): On 17 May 2010 granted British Airways an interim injunction restraining Unite from taking industrial action in reliance on the February 2010 ballot.