The Court of Appeal provides useful guidance on when section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992, regulating to the conduct of the ballot in respect to strike action, may be breached.
The Communication Workers Union sent a postal ballot to its members to seek support for strike action against Royal Mail, which resulted in a vote in favour of industrial action. The union encouraged members to intercept the voting papers at the delivery office, rather than wait for them to be delivered to their homes, and complete and return them immediately.
Royal Mail argued the ballot was unlawful and breached section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992. The High Court granted an interim injunction on the basis that union breached section 230(1), providing that that voting must take place without interference, section 230(2) requiring voting papers to be sent to the members home address so far as reasonably practical and section 230(4), requiring voting to be conducted in secret.
The union appealed on the ground that the judge was wrong to conclude that it was likely that there had been a failure to comply with section 230.
The Court of Appeal dismissed the appeal.
- Interference with section 230(1)
The Court held that interference within the meaning of section 230(1) is focussed on ‘conduct, whether by words or action, which had the effect of preventing or hindering the ordinary course of events with which the section was concerned’. It is therefore not limited to conduct which amounts to intimidation, coercion or fraud. They further highlighted that parliament intended for each member to receive their ballot paper at home and therefore, the union’s actions had subverted the intended process which amounts to interference under section 230(1).
- Interference with section 230(2)
The Court highlighted that the union took steps to ensure the ballot papers did not arrive at the home addresses of their members, therefore this section was also not complied with.
- Interference with section 230(4)
The Court held that as the union had failed to comply with section 230(1) and (2) it was not necessary to consider if section (4) had been breached. They did however note that as the High Court’s conclusion that voting was not conducted in secret appeared to be based on a video at one delivery office, it would not amount as a breach as so few people were involved.
- Interference with the right to strike under Article 11 of the European Convention of Human Rights
The Court applied the case of Metrobus which held that the requirements imposed by section 230, were not disproportionate restrictions on the right to freedom of association under Article 11.
- Implications for employers
The facts of this case are unique as the members of the union were able to intercept their personal post at work however the decision is a useful guide to determine what amounts to a breach under section 230. It further highlights the importance on trade unions to satisfy all the requirements within the Trade Union and Labour Relations (Consolidation) Act 1992 before commencing any strike action.