RMT v London Underground Limited (Court of Appeal, 16 February 2001)
Westminster City Council v UNISON (Court of Appeal, 21 March 2001)

The law requires unions to give seven days' notice to employers both before balloting for industrial action and again before taking action following a successful ballot. The requirements are set out in sections 226A and 234A respectively of the Trade Union and Labour Relations (Consolidation) Act 1992.

The law was amended by the Labour government in the Employment Relations Act 1999. The courts had interpreted the legislation introduced by the Tories as requiring unions to give employers the name of each individual member who would be balloted and who would be called upon to take action. This followed the decision of the Court of Appeal in Blackpool and Fylde College v NATFHE [1994] ICR 648 (CA).

The amendment made by the Labour government was intended to remove this onerous requirement which many felt infringed the civil liberties of individual union members.

The new requirement in the amended legislation is for the notice to contain "such information in the union's possession as would enable the employer to make plans and bring information to the attention of those of his employees who it is reasonable for the union to believe...will be entitled to vote in the ballot". The legislation goes on to say that "if the union possesses information as to the number, category or workplace of the employees concerned, a notice must contain that information (at least)" but that "if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply" with the legislation.

The amendment came into force on 18 September 2000. Only a few months later its interpretation is already a matter of controversy in industrial disputes and in the Court of Appeal.

The first case in which the Appeal Court considered the issue was London Underground v RMT. A High Court judge had granted London Underground an injunction to prevent RMT members participating in a series of one day strikes.

RMT had given notice that the ballot would be of "all RMT members employed by [London Underground Limited] in all categories at all workplaces" and gone on to state that according to the union's records "there are approximately 4,938 members". A similarly-worded notice was given following the successful ballot and similar notices were given in respect of each of the subsidiary companies involved in the dispute. RMT did not have check-off arrangements with LUL for deduction of union subscriptions from pay.

LUL wrote to RMT on the day of the ballot result to take issue with the adequacy of the information given. This was disputed in correspondence and the company then applied for an injunction. In granting the injunction, the judge said that it was legitimate for the employers to require the information to "prepare for a shut-down of services so that trains and other equipment are in the right place so as to ensure that services can be resumed with the minimum of disruption. If equipment needs to be moved or other steps need to be taken, employers need to know who remains available, where and in which category, so that those still at work can be deployed to do the necessary work" and "to see whether some services can be run or, if not, then to liaise to see whether alternative arrangements can be made for the public". The judge described these as "legitimate objectives four-square within the meaning and intent of the statutory provisions". He said that the information supplied in the notices was "effectively of no use (or almost no use)" for those purposes.

The judge also said that in assessing whether the union held information, one should look not just to the union nationally, but to branches and branch officials.

The Court of Appeal upheld the grant of an injunction. It said that the Labour amendment did not make "any significant change in the legislative policy or the purpose for which information was to be given to the employer". The legislative purpose was "to enable an employer to know which part or parts of its workforce were being invited to take industrial action". The amendment was "a change of means, not of objective" which may come as some surprise to some of those in government who engineered the change.

The Court suggested that information should be supplied, perhaps in the form of a grid or spreadsheet, listing categories and workplaces, with numbers for each. The Court of Appeal also held that information was in the union's possession if it was held by the national office or branch secretaries, that is "any official of [the union] who, in accordance with [the union's] rules and normal operating procedures, was concerned with maintaining records for [the union's] purposes".

This decision caused widespread concern amongst unions. It seemed to undermine the purpose and intention of the amendment. There was no longer a specific requirement to supply a list of names, but in many ways the new requirement as interpreted by the Court was both more onerous and less clear: unions would be required to provide more information, but could still not be sure whether they had complied. Indeed, providing a list of names of members to be balloted which would have complied with the old law, may no longer be enough.

To an extent, these concerns remain. However, some perspective has at least been brought to the situation by a further Court of Appeal decision in Westminster City Council v UNISON. Here, UNISON successfully overturned an injunction granted in an unusually trenchant judgment by a deputy High Court judge.

The notice given by the union had identified those to be balloted as "all those staff who pay their subscriptions via [check-off]. They work in the Advice and Assessment Office at Harrow Road and they can be described as A&A workers. I believe there are 45 in total".

The Court of Appeal highlighted the differences from the RMT case. The Court thought that the information was sufficient. There were only 45 staff. There job title and place of work were identified and information as to their individual identities could be ascertained by the employer through the reference to check-off. The Court rejected the employer's argument that a distinction should have been drawn between managers and other staff and between different sub-units of the department. One of the judges pointed out that the employer is likely to have far more accurate information as to workplaces, categories etc than the union.

This judgment is a welcome application of common sense, but the interpretation of this provision is still a cause for concern and a matter which the government may wish to address by clarifying the legislation.

Trade dispute

There is one further important aspect of the UNISON decision. The dispute concerned a proposed transfer to a private sector employer. The transfer was to be covered by TUPE. The judge decided that the dispute was political and not a trade dispute.

This was rejected by the Court of Appeal, who were critical of the judge's approach to the evidence.

Of wider interest was the fact that in reaching the conclusion that there was a trade dispute, the Court of Appeal effectively accepted that the trade dispute concerned the identity of the employer, as well as the implications of that change for pensions and other matters connected with the change.

This is of wider assistance in disputes involving contracting out and issues such as the Private Finance Initiative, which had seemed seriously curtailed by the judgment of the Court of Appeal in University College of London Hospital v UNISON [1999] IRLR 31 where the Court had upheld the grant of an injunction against the union on the basis that the dispute was effectively about terms and conditions after the transfer with a new employer and therefore was not therefore a dispute with their current employer. The Westminster case suggests disputes over the identity of the employer and effect of a change of identity through a TUPE transfer can attract the protection of the legislation.