Royal Mail Group Ltd v Communication Workers Union

A statutory industrial-action ballot is not valid merely because members were free to vote and produced an overwhelming majority. Under the Trade Union and Labour Relations (Consolidation) Act 1992, interference includes conduct that hinders the ordinary statutory voting process. Strongly encouraging postal workers to intercept ballot papers at work and vote immediately subverted the fully postal ballot scheme and breached section 230(1). It also breached section 230(2), because the union took steps to prevent ballot papers reaching members’ home addresses. Article 11 did not require a narrower interpretation. The interference could not be treated as immaterial by reference to the ballot result, and the injunction was proportionate. A fresh compliant ballot remained available.

Royal Mail Group Limited obtained an interim injunction from Swift J restraining the Communication Workers Union from calling strike action in reliance on a September–October 2019 postal ballot. The ballot overwhelmingly supported industrial action by RMG employees. The union had encouraged postal workers to remove ballot papers from workplace delivery frames, complete them immediately at work and return them through mass postings.

The issue on appeal was whether the judge had been wrong to conclude that the union was unlikely to establish compliance with section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992. The appeal was also concerned with the effect of the statutory requirements on the right to strike under Article 11.

The Court of Appeal granted permission to appeal but dismissed the appeal. Males LJ gave the leading judgment. Simler LJ and Elias LJ agreed, with each endorsing the essential reasoning.

1. Appellate review. On an appeal concerning an interim injunction in a trade dispute, the function is review. The court should interfere only for a misdirection, an unsustainable conclusion or a plainly wrong assessment of the likelihood of the statutory defence succeeding, applying RMT v Serco [2011] EWCA Civ 226.
2. Interference under section 230(1). The word interference takes its meaning from the statutory phrase requiring voters to be allowed to vote without interference or constraint. It covers conduct by words or actions that prevents or hinders the ordinary voting process. It is not confined to intimidation, coercion, fraud or similar misconduct. The distinction between encouragement and instruction was immaterial; the union’s conduct was strong encouragement in an environment where members might find it difficult to stand apart.
3. The statutory scheme contemplated that ballot papers would reach voters at home, allowing them to decide whether and how to vote away from workplace pressures. The union’s plan to intercept papers at work and encourage immediate workplace voting subverted that scheme and amounted to interference. It also breached section 230(2), because the union took steps to prevent papers reaching the home addresses to which they had been sent.
4. Article 11 and materiality. Article 11 did not require a restricted interpretation. The statutory restrictions were not disproportionate, applying the approach in Metrobus [2009] EWCA Civ 829. The fact that the interference might not have changed the result did not preserve the ballot. An injunction was not disproportionate because the union could hold a fresh ballot.
5. The court did not need finally to determine the separate section 230(4) issue. Workplace voting was not necessarily inconsistent with secrecy, although the union’s plan created that risk. If the isolated Swansea incident had stood alone, it would probably have been de minimis. The observations on substantial compliance in British Airways v Unite [2010] EWCA Civ 69 and RMT v Serco were persuasive dicta, but could not save a breach of section 230(1). The appellant was ordered to pay the respondent’s appeal costs of £40,312.39 within 14 days.

• Court of Appeal (Civil Division): Permission granted; appeal dismissed on 4 December 2019. The order below was upheld and the appellant was ordered to pay the respondent’s costs.
• High Court of Justice, Queen’s Bench Division: Swift J granted an interim injunction on 13 November 2019, reported at [2019] EWHC 3200 (QB), restraining reliance on the ballot.