The Right to Strike under UK Law: Something More Than a Slogan?: NURMT v SERCO, ASLEF v London & Birmingham Railway Ltd

Abstract

An obligation on trade unions to ballot their members in advance of industrial action was first introduced into UK law in 1984 (Trade Union Act 1984, Part II). In 1993, the balloting provisions were augmented with a set of rules requiring trade unions to provide certain specified information to employers before and after a ballot, and in advance of any pursuant industrial action (Trade Union Reform and Employment Rights Act 1993). In both cases, the conferral upon trade unions of ‘statutory immunity’ from the liability in tort that might otherwise attach was rendered conditional upon compliance with the new procedural obligations. Whatever the stated intention of the Governments of the time, one of the most significant consequences of these legislative steps was the creation of many new grounds upon which injunctions could be sought to prevent industrial action. Prior to 1984, disputes as to the lawfulness of industrial action tended to hinge on the substantive issue of whether the action fell within the so-called ‘golden formula’: whether it had been taken in contemplation or furtherance of a trade dispute. Since 1984 and 1993, disputes have arisen, time and again, as to whether trade unions have complied with the procedural requirements to ballot their members and to provide notice and information. Given the detail and the complexity of the relevant statutory provisions (now contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the Act’, ‘the 1992 Act’)), the attitude of the courts to the level of compliance necessary (strict compliance? substantial compliance?) is of particular consequence. Where strict compliance is required, even small errors without practical significance can be judged to invalidate a ballot, leaving a trade union vulnerable to the grant of an injunction prohibiting industrial action.