RMT v Serco Ltd

Last updated

RMT v Serco; ASLEF v London & Birmingham Railway
CourtCourt of Appeal
Citation(s)[2011] EWCA Civ 226
Case opinions
Elias LJ
Keywords
Trade union, collective bargaining

RMT v Serco Ltd and ASLEF v London & Birmingham Railway [2011] EWCA Civ 226 is a joined UK labour law case, concerning the right to strike under the Trade Union and Labour Relations (Consolidation) Act 1992.

Contents

Facts

An injunction was granted against ASLEF after the union included two members in a ballot who were not entitled to vote, 605 people altogether. In the ballot, 472 voted, and 410 were in favour of taking collective action. The employer argued that this violated TULRCA 1992 section 226A, which requires accuracy in who should vote. It also argued that the union did not provide accurate information in the notice of its intention to hold a strike ballot.

The High Court held that the notice of the ballot was inaccurate because two extra members were included.

Judgment

Elias LJ held that the inclusion of the extra members was a trivial mistake, and excusable. It was necessary to read all the words of the statute, especially TULRCA 1992 section 226A, so that the union was required only to provide information ‘so far as reasonably practicable is accurate at the time it is given having regard to the information in the union’s possession’.

Elias LJ gave the leading judgment, with the following introductory obiter dictum. [1]

2. The common law confers no right to strike in this country. Workers who take strike action will usually be acting in breach of their contracts of employment. Those who organise the strike will typically be liable for inducing a breach of contract, and sometimes other economic torts are committed during the course of a strike. Without some protection from these potential liabilities, virtually all industrial action would be unlawful.

[...]

8. Although the common law recognises no right to strike, there are various international instruments that do: see for example Article 6 of the Council of Europe's Social Charter and ILO Conventions 98 and 151. Furthermore, the ECHR has in a number of cases confirmed that the right to strike is conferred as an element of the right to freedom of association conferred by Article 11(1) of the European Convention on Human Rights which in turn is given effect by the Human Rights Act.... the right is not unlimited and may be justifiably restricted under Article 11(2).... the detailed complexity of the balloting provisions, and their unnecessary intrusion into the union’s processes, involves a disproportionate interference with the Article 11(1) right.

[Elias LJ, at paragraphs 45-57, found that not balloting two members was ‘accidental’ under s 232A, and continued...]

69. Mr Hendy submits that the judge erred in his approach to this issue. In particular, he failed to focus on the whole of the relevant provision. The law requires that the figures are "as accurate as reasonably practicable in the light of the information in the possession of the union at the time when it complies with [the obligation]". The judge merely asked himself whether the figures were "as accurate as reasonably practicable". The focus on the information actually in the hands of the union at the time when it complies with its obligation is, submits Mr Hendy, crucial. It is not information which the union ought to have had if it had kept proper records, or information which it could obtain, or which the union had in its possession at some other time. He relies in particular on the following obiter observations of Lloyd LJ in Metrobus:

"It is relevant in this context that the 2004 amendments included provisions, at section 226A(2D) and (2E), and correspondingly in section 234A, which limit the obligation imposed on a union in this respect, by a reasonable practicability criterion and by defining restrictively the information which is deemed for this purpose to be in the possession of the union. The latter, in particular, bears on the obligation to provide an explanation, because it limits the process which has to be undertaken, and therefore has to be explained, to the information so defined, and makes it what might be called a reasonable endeavours process."

70. I agree with Mr Hendy's submissions for a number of reasons. First, in my judgment Mr Béar's argument simply fails to give any weight to the fact that the reasonably practicable duty is limited by reference to the information possessed by the union. Without that limitation I would agree that if it were reasonably practicable for the union to go out and acquire the information, it would have to do so. But these are important limiting words and Mr Béar's construction simply ignores them. In my judgment if the intention of Parliament had been to create a duty to create records not otherwise available to the union, it would have said so unambiguously. No such statutory obligation is created. Moreover, there would seem to be no point in formulating a detailed definition of information in the possession of the union if this were not intended in some way materially to restrict the nature of the duty cast on the union.

[...]

94. I do not accept that the information has to be so specific, or needs to go further than the ACAS code recommends. Nor in fact will the information which Mr Béar submits should be given generally assist the employer in assessing the reliability of the information. Nothing is achieved by stating which particular officer obtained the information, or on which particular day, or whether contacts with local officers were by email or phone or anything of that kind. This provides no relevant assistance of any kind to the employer. In my view, to require this would simply be to set traps or hurdles for the union which have no legitimate purpose or function. I accept that it is of some relevance whether the information is drawn from union records or not since the employer can at least assume the union will have an interest in keeping them up to date; and it is of some relevance whether that information is national or local. If the information has been obtained by the union in some other way, that should be disclosed, as the Code suggests. Beyond that, however, I do not think that the scope of the statutory duty should be further expanded by reference to some dimly perceived statutory objective.

[...]

103. In assessing the accuracy of the explanation, it must be born in mind that the union officials providing it are not drafting a statute, and nor are they required to use undue precision or accuracy in their use of language. In my view the courts should not take the draconian step of invalidating the ballot, thereby rendering the strike unlawful, simply because the term used to describe a particular process is infelicitous. In my judgment the description of the process undertaken would have to be positively and materially misleading before the explanation could be said to fall short of the statutory requirement.

Etherton LJ and Mummery LJ concurred.

See also

Notes

  1. ↑ cf Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, 463, the "right of workmen to strike is an essential element in the principle of collective bargaining" per Lord Wright and Morgan v Fry [1968] 2 QB 710, 725, 'It has been held for over 60 years that workmen have a right to strike...' per Lord Denning MR

Related Research Articles

United Kingdom labour law Labour rights in the UK

United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum charter of employment rights, which are found in Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £9.50 for over-23-year-olds from April 2022 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.

<i>Adams v Cape Industries plc</i>

Adams v Cape Industries plc [1990] Ch 433 is a UK company law case on separate legal personality and limited liability of shareholders. The case also addressed long-standing issues under the English conflict of laws as to when a company would be resident in a foreign jurisdiction such that the English courts would recognise the foreign court's jurisdiction over the company. It has in effect been superseded by Lungowe v Vedanta Resources plc, which held that a parent company could be liable for the actions of a subsidiary on ordinary principles of tort law.

The Trade Union and Labour Relations (Consolidation) Act 1992 is a UK Act of Parliament which regulates United Kingdom labour law. The Act applies in full in England and Wales and in Scotland, and partially in Northern Ireland.

The Employment Rights Act 1996 is a United Kingdom Act of Parliament passed by the Conservative government to codify existing law on individual rights in UK labour law.

Associated Society of Locomotive Engineers and Firemen v United Kingdom [2007] ECHR 184 was a landmark case before the European Court of Human Rights and upheld the right of ASLEF, a British trade union, to be able to choose its members.

<i>Nethermere (St Neots) Ltd v Gardiner</i> United Kingdom employment law court case

Nethermere Ltd v Gardiner And Another [1984] ICR 612 is a UK labour law case in the Court of Appeal in the field of home work and vulnerable workers. Many labour and employment rights, such as unfair dismissal, in Britain depend on one's status as an "employee" rather than being "self-employed", or some other "worker". This case stands for the proposition that where "mutuality of obligation" between employers and casual or temporary workers exists to offer work and accept it, the court will find that the applicant has a "contract of employment" and is therefore an employee.

Economic torts in English law refer to a species of civil wrong which protects the economic wealth that a person will gain in the ordinary course of business. Proving compensation for pure economic loss, examples of an economic tort include interference with economic or business relationships.

The Employment Act 2008 is an Act of the Parliament of the United Kingdom which reformed a wide range of different provisions of UK labour law. It is an amending statute, and therefore simply altered pre-existing law to remedy perceived problems in the law's operation to do with dispute resolution, strengthen enforcement of the minimum wage and employment agency standards and to conform with updated case law on trade unions, in particular, ASLEF v United Kingdom.

<i>Krasner v McMath</i>

Krasner v McMath [2005] EWCA Civ 1072 is a UK labour and insolvency law case concerning the priority of payments to workers of an insolvent company in priority to other creditors.

<i>Wilson and Palmer v United Kingdom</i>

Wilson v United Kingdom [2002] ECHR 552 is a UK labour law and European labour law case concerning discrimination by employers against their workers who join and take action through trade unions. After a long series of appeals through the UK court system, the European Court of Human Rights held that ECHR article 11 protects the fundamental right of people to join a trade union, engage in union related activities and take action as a last resort to protect their interests.

Johnson v Unisys Limited [2001] UKHL 13 is a leading UK labour law case on the measure of damages for unfair dismissal and the nature of the contract of employment.

<i>Autoclenz Ltd v Belcher</i>

Autoclenz Ltd v Belcher [2011] UKSC 41 is a landmark UK labour law and English contract law case decided by the Supreme Court of the United Kingdom, concerning the scope of statutory protection of rights for working individuals. It confirmed the view, also taken by the Court of Appeal, that the relative bargaining power of the parties must be taken into account when deciding whether a person counts as an employee, to get employment rights. As Lord Clarke said,

the relative bargaining power of the parties must be taken into account in deciding whether the terms of any written agreement in truth represent what was agreed and the true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part. This may be described as a purposive approach to the problem.

Collective action in the United Kingdom in UK labour law is the main support for collective bargaining. Although the right to strike has attained the status, since 1906, of a fundamental human right, protected in domestic case law, statute, the European Convention on Human Rights and international law, the rules primarily codified in the Trade Union and Labour Relations (Consolidation) Act 1992 have generated significant litigation. In order for a group of workers to take strike action, they must,

<i>Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2)</i>

Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen [1972] ICR 19 is a UK labour law case concerning the contract of employment. It held that there is an implied term of good faith in an employment contract, and if the employer withdraws this, it is a breach of contract. The consequence was that in a strike, employees merely "working to rule" needed not to be paid, because they had only partly performed their obligations.

<i>Mikeover Ltd v Brady</i>

Mikeover Ltd v Brady [1989] is an English land law case, concerning the definition of leases, specifically a standard tenancy as opposed to a licence. Here a licence was confirmed and upheld where two former co-habitees had fallen out and separated; removing from the remaining licensee, in arrears, the extra time to remain afforded by the old Rent Act 1977 type tenancies which he hoped to benefit from.

The Trade Union Act 2016 is a UK labour law passed by the David Cameron administration of the UK Conservative Party. It amended the Trade Union and Labour Relations (Consolidation) Act 1992. It was fiercely opposed by all UK trade unions. Alan Bogg, professor of labour law at the University of Oxford, described the act as authoritarian.

London Underground Ltd v National Union of Railwaymen, Maritime and Transport Staff [1996] ICR 170 is a UK labour law case, concerning the right to strike.

Morgan v Fry [1968] 2 QB 710 is a UK labour law case, concerning the right to strike at common law.

<i>IWGB v CAC</i>

Independent Workers of Great Britain Union v Central Arbitration Committee [2021] EWCA Civ 952 is a UK labour law case, concerning sham self-employment and the human right to unionise and collectively bargain.

Kostal UK Ltd v Dunkley [2021] UKSC 47 is a UK labour law case, concerning the right to suffer no detriment for joining, or inducements to not join, a trade union.

References

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.