COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QBD
THE HON MR JUSTICE RAMSEY
THE HON MR JUSTICE TUGENDHAT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE ELIAS
| THE NATIONAL UNION OF RAIL, MARITIME & TRANSPORT WORKERS
|- and -
|SERCO LIMITED t/a SERCO DOCKLANDS
|THE ASSOCIATED SOCIETY OF LOCOMOTIVE
ENGINEERS & FIREMEN
|LONDON & BIRMINGHAM RAILWAY LIMITED t/a LONDON MIDLAND
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Official Shorthand Writers to the Court)
Mr John Hendy QC and Mr Oliver Segal (instructed by Messrs Thompsons) for the second Appellant
Mr Charles Béar QC and Mr Andrew Burns (instructed by Bircham Dyson Bell LLP) for the Respondents
Hearing dates : 9th & 10th February 2011
Crown Copyright ©
Lord Justice Elias :
The legal context.
The relevant balloting provisions.
The conduct of the ballot
"Entitlement to vote in the ballot must be accorded to all the members of the union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part….in the industrial action in question, and to no others"
This is an important provision. It defines the relevant constituency by reference both to those who must be balloted and those who must not.
"Except as regards persons falling within subsection (2A) [which deals with merchant seamen], so far as is reasonably practicable, every person who is entitled to vote in the ballot must –"
(a) have a voting paper sent to him by post at his home address or at any other address which he has requested the trade union in writing to treat as his postal address; and
(b) be given a convenient opportunity to vote by post.
"For the purposes of paragraph (b), an inaccuracy in counting shall be disregarded if it is accidental and on a scale which could not affect the result of the ballot."
(a) in relation to a ballot there is a failure (or there are failures) to comply with a provision mentioned in subsection (2) or with more than one of those provisions, and
(b) the failure is accidental and on a scale which is unlikely to affect the result of the ballot or, as the case may be, the failures are accidental and taken together are on a scale which is unlikely to affect the result of the ballot,
the failure (or failures) shall be disregarded for all purposes (including, in particular, those of section 232A(c)).
(2) The provisions are section 227(1), section 230(2) and section 230(2B)."
The information provisions
(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing—
(a) stating that the union intends to hold the ballot,
(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and
(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, …..
(2A) The lists are—
(a) a list of the categories of employee to which the employees concerned belong, and
(b) a list of the workplaces at which the employees concerned work.
(2B) The figures are—
(a) the total number of employees concerned,
(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and
(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).
By sub section 2H, the employees concerned are defined as those who the union reasonably believes will be entitled to vote in the ballot.
(2D) The lists and figures supplied under this section….. must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).
Subsection (2E) then defines with some precision the information which is deemed to be in the possession of the union.
(2E) For the purposes of subsection (2D) information is in the possession of the union if it is held, for union purposes—
(a) in a document, whether in electronic form or any other form, and
(b) in the possession or under the control of an officer or employee of the union……
(a) any member of the governing body of the union, and
(b) any trustee of any fund applicable for the purposes of the union."
This term is to be contrasted with the term "official", also defined in section 119, which includes branch or elected representatives of the members. Information in the possession of officials who are not also union officers will not therefore constitute information within the possession of the union.
The two appeals
The ASLEF appeal
"The lists and figures accompanying this notice were arrived at by retrieving information from the union's membership database and workplaces of members and the numbers in and at each , the database having been audited and updated for the purpose of the statutory notification and balloting requirements to ensure accuracy."
The basis for the injunction
The grounds of appeal
(1) The judge was wrong to find that the error in balloting two members who ought not to have voted was not accidental. He ought to have found that it was accidental and that section 232B applied so that the failure could be disregarded.
(2) The judge was wrong to have held that the figures provided by the union were not as accurate as reasonably practicable in the light of the information in the possession of the union.
(3) Alternatively, even if there was a breach of the duty to provide accurate figures, the breach was de minimis and should have been ignored.
(4) The judge erred in concluding that the explanation given for arriving at the figures was inadequate.
(5) The judge was wrong to find that the explanation was inaccurate and misleading because of the claim that the union records had been audited.
Section 232B and accidental errors
"Sections 228-230 contain the provisions which deal with the conduct of the ballot. In my opinion, compliance with these provisions in respect of the constituency identified by section 227(1) means that the members of that constituency have been accorded entitlement to vote. In the case of the distribution of ballot papers, section 230(2) makes those requirements subject to the proviso of reasonable practicability and section 232B makes both sections 227(1) and 230(2) subject to the disregard of small accidental errors. If failure to send a ballot paper to a person within the constituency falls within either of these exceptions, he is not by reason of that failure to be treated as having not been accorded entitlement to vote."
"In theory the union should have been able to produce from its computerised records a printout showing all its members at the B school. In practice it produced a list which was reasonably accurate but not wholly accurate: it included the names of five teachers who had by then moved on, and it omitted the names of two teachers who had joined the school staff, in each case without letting the union know about their moves. The inaccurate printout was in practice the source of the error in distributing ballot papers. But there is nothing in the statutory provisions, or in the way in which the union's head office seems to have acted, to indicate that the printout was intended to be definitive. Had either of the recently-joined teachers rung up the head office to protest at non-receipt of a ballot paper, the answer might have been, "It is too late to do anything about it" but it would not have been "You are not entitled to vote". The printout was not a definitive document like an electoral roll".
The failure to provide accurate information as required
The legislative history of the notification requirements.
"…(c) describing (so that he can readily ascertain them) the employees of the employer who it is reasonable for the union to believe (at the time when the steps to comply with that paragraph are taken) will be entitled to vote in the ballot."
" such information in the union's possession as would help the employer to make plans and bring the information to the attention of those of his employees who it is reasonable for the union to believe (at the time when the steps to comply with that paragraph are taken) will be entitled to vote in the ballot."
"It is relevant in this context that the 2004 amendments included provisions, at section 226A(2D) and (2E), and correspondingly in section 234A, which limit the obligation imposed on a union in this respect, by a reasonable practicability criterion and by defining restrictively the information which is deemed for this purpose to be in the possession of the union. The latter, in particular, bears on the obligation to provide an explanation, because it limits the process which has to be undertaken, and therefore has to be explained, to the information so defined, and makes it what might be called a reasonable endeavours process."
The de minimis principle.
"It is well understood that a union is not expected to achieve 100% perfection in the conduct of ballots such as these. A union has the protection of the de minimis rule and the test of reasonable practicability: see British Railways Board v National Union of Railwaymen  IRLR 349."
"I would accept Mr Hendy's submission that, if there were failures, they were not of a serious nature. If the Union did not comply completely with section 231 it appears to me very likely that the judge at trial would hold that there had been substantial compliance.
Is "substantial compliance" sufficient? Section 226(2)(a)(ii) provides that industrial action shall be regarded as having the support of a ballot if the various conditions are satisfied. One of the conditions is that the requirements of section 231 are satisfied. So, section 231 is a condition precedent to the validity of the balloting process.
However, I have already said that the section requires the Union only to take such steps as a reasonable and prudent person would consider necessary to ensure that the information reached those entitled. I have already noted that minor and inconsequential infringements of the balloting requirements can be disregarded. I cannot believe that Parliament was content to disregard minor accidental infringements of the balloting provisions and yet intend that minor and inconsequential infringements of section 231 should have the effect of invalidating the ballot.
I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot.
I can see that if there is an infringement which affects some aspect of those important policy requirements, the ballot must be held invalid. But in my view it cannot have been Parliament's intention to allow a minor infringement which has had no adverse effect on anyone's rights or interests to invalidate the ballot. In my view substantial compliance with section 231 will satisfy section 226(a)(ii). If it were not so, the rights of workers to withhold their labour would be seriously undermined."
"It would be absurd if an immaterial and accidental failure to send a ballot paper to a single member were to invalidate the ballot, so as to deprive the union of immunity, and this contingency is provided for by sections 230(2) and 232B. But it would be equally absurd if an immaterial and accidental failure to establish with accuracy who was entitled to vote were to invalidate the ballot so as to deprive the union of immunity."
The explanation: was it adequate?
"When providing the explanation of how the figures in the written notice were arrived at, unions should consider describing the sources of the data used (for example the membership lists held centrally or information held at regional offices, or data collected from surveys or other sources). It is not reasonable to expect union records to be perfectly accurate and to contain detailed information on all members. Where the union's data are known to be incomplete or to contain other inaccuracies, it is a desirable practice for unions to describe in the notices the main deficiencies. In some cases, the figures will be estimates based on assumptions and the notice should therefore describe the main assumptions used when making the estimates."
The explanation: was it inaccurate?
The RMT appeal
"The figures given above has/have been arrived at by retrieving information from the Union's database having been audited and updated for the purposes of the statutory notification and balloting requirements to ensure accuracy.
This update has involved the following steps:
i) The generation of membership lists from our database which have been sent to our company representatives who have responded with updated information as to out member's individual job categories and workplaces. This information has subsequently been inputted into our database.
ii) Ensuring the input of all information for the relevant members in our database, which was received as a result of our annual mailing out of a letter to each member of the union with a breakdown of the Job Category and workplace information we have on our membership system. This letter requests each member confirms any changes to their details either by letter, by phone or through or through the member's section of our website. Indeed our website has permanent notice on its front page requesting members advise us of any changes to their employment details or home addresses.
iii) Checking the union has used any other relevant information in the possession of any of its officers or employees, as to the accuracy of this information."
The grounds of appeal.
"With regard to the Metrobus postal ballot, approximately a month before the ballot commenced it was necessary for me to check membership details, so that members to be balloted could be identified. During this period numerous telephone calls were made between branches so that any queries with regard to the membership list could be dealt with. The membership list confirmed that 776 members paid by check-off and 69 members paid by other means.
Once the administration referred to in paragraph 3 above had been finalised, the postal ballot was held and it was successful. …"
Tugendhat J relied on the fact that this account states who did what and when. But I doubt whether Lloyd LJ was treating that as the necessary requirement. I suspect that he was merely indicating, consistently with his general assessment of the significance and value of the statutory explanation, that Ms Evans' account identified in a general way the sources of the information from which the union put together the figures. In truth, it was wholly irrelevant whether Ms Evans had one call or many, or whether she contacted branches by telephone or by letter. That information does not assist the employer in assessing the reliability of the information. Indeed, in my judgment the information given by Ms Evans provides less by way of explanation than the explanation given by the union in this case. It is true that in Metrobus the information tells the employer that the updating occurred approximately a month before the ballot commenced whereas here the explanation simply indicated that there was updating in anticipation of the ballot. But in each case it is obvious that the update was recent, and I do not consider that to be a material distinction.
The respondent's notice.
Lord Justice Etherton:
Lord Justice Mummery: