UK Courts, balloting requirements and the right to strike: recent developments

The laws regulating the conduct and organisation of ballots for industrial action, developed by consecutive Conservative regimes in the Trade Union Act 1984, the Employment Act 1988 and the Trade Union Reform and Employment Rights Act 1993 – provisions now contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) – have long been an issue of concern for trade unions due to their detailed and complex nature. Although some limited amendments to the law were made in the Employment Relations Acts of 1999 and 2004 it is still the case that unions need to take considerable care in preparing the content of the ballot paper, the literature that accompanies it and in adhering to the correct procedure during the process of balloting and after the ballot has been completed. A failure to follow the detail of the provisions has often resulted in an injunction being granted to stop strike action, although on occasion courts have accepted that the interpretation of the legislation must be tempered with a dose of reality. A series of recent cases, discussed below, arguably indicate a movement towards a more restrictive application and interpretation of the statutory rules and demonstrates that the Labour Government amendments in the Employment Relations Act 1999 and Employment Relations Act 2004 2 have not sufficiently clarified or simplified the law on the procedure a union has to follow, prior to calling industrial action, in order to attract legal immunity from tort action. It is still the case that the detailed technical nature of strike ballot rules provide opportunities for employers to challenge the legality of industrial action, with the judiciary adjudicating on whether the union has complied with all the intricacies of the strike ballot regulations. A feature of this more recent case law has also been judicial consideration of whether the restrictive nature of the balloting provisions limit legitimate industrial action to such an extent that they contravene international labour law codes on the right to take strike action, and particularly, whether they constitute a breach of Article 11 of the European Convention on Human Rights.