Scottish Human Rights Law Group

U appealed against an injunction preventing strike action which arose from non-compliance by U with statutory provisions in relation to pre-strike notices to the employer M. U argued the statutory provisions amounted to a disproportionate interference with U’s rights under Article 11. Court of Appeal rejected the appeal, holding the provisions to pursue a legitimate aim and to be proportionate.

Facts

U represented bus drivers employed by M. Further to a dispute over pay and conditions, U give notice to M in terms of s 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”) that it intended to hold a ballot for industrial action. Section 226A requires trade unions to provide a minimum level of information within such notices in order to comply with this provision.

U failed to provide M with certain details required under section 226A. In relation to employees who M did not make union deductions for (a process known as “check-off”), U provided the relevant numbers of such employees and relevant lists in relation to these employees as required but failed to provide an explanation as to how the figures had been arrived at by the trade union. U also failed to give M notice of the outcome of the ballot “as soon as reasonably practicable” as was required by section 231A of TULRA.

The ballot was in favour of industrial action and U gave M statutory notice of industrial action as required by s 234A of TULRA. This notice was similarly deficient in not providing information as to how the figures in relation to non-check off employees had been arrived at by the union.

After a 24-hour strike took place, M successfully applied for an injunction against U to prevent further strike action pursuant to the ballot that had taken place. This was granted by the High Court having regard among other matters to the defective notices that had been provided by U.

U appealed to the Court of Appeal arguing inter alia that the statutory requirements in TULRA required to be interpreted in light of Article 11 of the European Convention on Human Rights.

Article 11 provides for the right to “freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests”. This is subject to Article 11(2) which provides for restrictions on this right in certain specified circumstances, where prescribed by law and necessary in a democratic society.

U argued that the statutory requirements imposed by TULRA in relation to pre-ballot notices infringed Article 11 insofar as they went far beyond what could be regarded as necessary in the circumstances to protect the legitimate interests of the employer. It was submitted that the restrictions imposed by the legislation presented obstacles so numerous and so complex that errors became almost inevitable on the part of trade unions.

Held

On the Article 11 appeal point, the Court agreed that the applicable test was whether the statutory restrictions on U’s ability to call a lawful strike were disproportionate. A balance had to be struck between the rights and interests of workers and trade unions on the one hand and those of employers (including their rights under Article 1 of Protocol 1) on the other hand.

The requirement on U to provide M with an explanation of the figures provided in the relevant notices could not be seen as unreasonable, excessively onerous or disproportionate. It was not difficult to comply with. There were legitimate reasons for requiring an explanation, which had been alluded to in the Code of Practice issued by the Secretary of State concerning Industrial Action Ballots and Notice to Employers, relating to the reliability of union membership records. The reason for the information was to allow employers to make preparations for the contingency of strike action.

In this case U had failed to follow the advice of the Code of Practice designed to assist both parties to comply with the statutory provisions. U should also have intimated the outcome of the ballot to M as soon as reasonably practicable. As such, the restrictions were not disproportionate under Article 11 and the provisions did not require to be interpreted differently to comply with section 3 of the Human Rights Act 1998. The appeal would be dismissed.

[2009] IRLR 851

The decision is available here: