National Union of Rail, Maritime & Transport Workers v Serco Ltd (t/a Serco Docklands)

Statutory provisions governing industrial-action ballots must receive their ordinary, likely and workable construction. They are not construed strictly against trade unions.

A union’s duty under sections 226A and 234A of the Trade Union and Labour Relations (Consolidation) Act 1992 is to provide figures as accurately as reasonably practicable from information already in its possession. It need not create records or undertake fresh investigations. A brief or formulaic explanation is sufficient if it identifies the sources from which the figures were derived.

Small accidental balloting errors may be disregarded under section 232B. Trifling notification errors may also fall within the de minimis principle. An inaccurate description invalidates an explanation only where it is positively and materially misleading.

Two trade unions appealed against interim injunctions preventing proposed strikes. Ramsey J restrained industrial action by train drivers employed by London and Birmingham Railway Ltd. Tugendhat J restrained industrial action by employees of Serco Ltd on the Docklands Light Railway.

The employers alleged defects in the ballot and industrial-action notices required by sections 226A and 234A of the Trade Union and Labour Relations (Consolidation) Act 1992. The alleged defects concerned accidental inclusion of ineligible voters, inaccurate membership figures, inadequate explanations of how figures were calculated, use of the word “audited”, and job categorisation.

The central issues were the extent of a union’s duty to obtain accurate information, the meaning of an accidental error under section 232B, the availability of the de minimis principle, and the detail required in a statutory explanation.

1. Both appeals were allowed unanimously and both interim injunctions were discharged. Elias LJ delivered the judgment, with which Etherton and Mummery LJJ agreed.

2. Legislation protecting industrial action must be construed in the ordinary way, without a presumption favouring either employers or unions. The proper starting point is a likely and workable construction of the Trade Union and Labour Relations (Consolidation) Act 1992.

3. Sending ballot papers to two members who were not eligible gave them an opportunity to vote rather than a statutory entitlement. The error therefore fell within section 230(2), by necessary implication. Section 232B was intended to protect a union where human error accidentally extended the vote to a small number of ineligible members and the error was unlikely to affect the result. “Accidental” did not mean unavoidable.

4. Under section 226A(2D), accuracy is expressly limited by the information in the union’s possession. The union must obtain relevant documents held by its officers and employees, collate and analyse them, and must not mechanically reproduce information it knows to be wrong. It has no duty under the notification provisions to create new records, conduct fresh investigations or establish improved record-keeping systems. The figures in the ASLEF notice were therefore as accurate as reasonably practicable.

5. The de minimis principle remains available for notification defects not covered by an express statutory saving. Parliament cannot have intended a trifling and inconsequential error involving two members among more than 600 to invalidate the entire process.

6. The explanation required by sections 226A and 234A need only state how the figures were obtained. Compliance with paragraph 16 of the relevant Code of Practice ordinarily meets that duty. A union need not identify precisely who performed each task, on what date, or by what means. An explanation may be brief, standard or formulaic if it identifies its data sources and any known material deficiencies or assumptions.

7. An infelicitous expression does not invalidate a ballot. The description must be positively and materially misleading. A ballot-specific review and updating of membership records could fairly, although imperfectly, be described as auditing and updating them.

8. Sections 226A and 234A do not prescribe particular job categories. General categories based on the jobs identified by affected employees complied with the statutory obligation. Permission to pursue Serco’s respondent’s notice was refused.

1. Court of Appeal (Civil Division): Both appeals were allowed unanimously and the interim injunctions were discharged: [2011] EWCA Civ 226.

2. High Court, Queen’s Bench Division: Tugendhat J granted Serco Ltd an interim injunction preventing industrial action by RMT members on the Docklands Light Railway.

3. High Court, Queen’s Bench Division: Ramsey J granted London and Birmingham Railway Ltd an interim injunction preventing industrial action by ASLEF train drivers.