Christmas postal strike prevented due to union’s interference with postal ballot

Background

The Trade Union and Labour Relations (Consolidation) Act 1992 provides certain legal protections for trade unions, which allow them to call on their members to break their employment contracts by going on strike.

Unions must comply with prescribed procedural formalities in order to enjoy these protections. These include their members being allowed to vote by way of a postal ballot, with their ballot paper being sent to them at their home address. It is also necessary for the ballot to take place without “interference” by unions or their officials.

Facts of the case

An ongoing trade dispute exists between the Royal Mail and the CWU. This led the CWU to conduct a postal ballot of its members employed by the Royal Mail with a view to then calling for Christmas strike action. Such a strike would provide the CWU with particular leverage in the dispute as the Royal Mail’s volumes more than double during the Christmas period.

The Trade Union Act 2016 introduced a requirement that at least 50% of those entitled to vote in an industrial action ballot must have done so. As turnout in industrial action ballots is so important, the CWU sought to ensure that its members would vote in sufficient numbers. It did this by strongly encouraging them, if possible, to use their unique right to take their own post from the “frame” into which is it sorted at the Delivery Office serving their home address and then immediately return their ballot. This encouragement was followed by many of the CWU’s members across the country. Evidence of both the encouragement and of this being acted upon was posted on social media. The CWU’s members voted overwhelmingly for industrial action.

The Royal Mail applied to the High Court for an injunction to prevent the CWU from calling for industrial action on the basis that the CWU had interfered in the ballot and so the statutory protections did not apply. This meant that the CWU would be unlawfully calling on its members to break their contracts of employment. The High Court granted the injunction, and the CWU appealed.

The CA’s decision

The CA dismissed the CWU’s appeal. The CA said that “interference” in a strike ballot by a union refers to conduct that has the effect of preventing or hindering the ordinary course of voting. It is not a test of “impropriety” and is not limited to conduct which amounts to intimidation, coercion or fraud.

The CA held that Parliament had intended for public policy reasons for union members to receive their ballot papers at their home address - so that they have the opportunity to decide to how to vote whilst away from the workplace. The CA doubted “very much” that Parliament had contemplated the possibility of the Royal Mail’s employees enjoying a unique ability to intercept their own mail before it reaches their home address. This meant that the CWU had interfered with the ballot process.

As frequently happens in cases concerning trade unions, the CWU advanced an additional argument based on Article 11 of the European Convention on Human Rights (the right to freedom of assembly and association). The CWU argued that, even if it had interfered with the ballot, the UK’s prohibition against union interference in ballots amount to a “trap” into which unions can easily fall – meaning that the concept of “interference” should be “toned down”. The CA rejected this argument, noting that the legal framework did not stand in the way of the CWU holding another ballot during which it could refrain from encouraging its members to intercept their own mail. The only real prejudice that the CWU would suffer in such circumstances would be less leverage, as the strike could not take place over the Christmas period but it could ultimately still call for industrial action after Christmas.

Implications for employers

This case involved unique factual circumstances. No other employer will have employees who can lawfully intercept their own post before it is delivered to them. It nevertheless provides helpful guidance by confirming that unions do not need to have acted improperly in order to have carried out “interference” with a ballot. The decision also indicates that it cannot sensibly be suggested that this means that a union is not entitled to campaign for a “yes” vote.

A spectrum of conduct will exist between mere campaigning and unlawful interference. Employers whose employees are being balloted and who want to stop industrial action from disrupting their business should consider where their union’s conduct falls on this spectrum. This is important because, as this case demonstrates, it is possible for an employer to secure an injunction to protect its interests even in the absence of a “hint of a complaint” from any member about the conduct of a ballot or any unwelcome pressure.

It is worth noting that, in addition to the requirement for a 50% turnout, the Trade Union Act 2016 introduced a requirement for a review of the viability of electronic industrial action ballots. This would avoid any need for ballot papers to be delivered to home addresses. Sir Ken Knight has now conducted such a review but the Government’s response to his recommendations is still awaited some two years on.

Royal Mail Group Limited v Communication Workers Union - judgment available here.