(back to preceding text)

    37. Sections 232A and 232B were inserted into the 1992 Act by Schedule 3, paras 8 and 9 of the Employment Relations Act 1999. In the usual hopeless attempt to obtain guidance from parliamentary debates under the rule in Pepper v Hart [1993] AC 593, your Lordships were referred to the remarks of the Secretary of State Mr Byers at the Report stage in the House of Commons shortly before midnight on 30 March 1999 (Hansard (HC Debates), col 988). He said that the purpose of the provisions was to ensure that the parties could concentrate on resolving a dispute "rather than being bogged down in detailed discussions about whether the complexity of the present procedures has been followed in all its forms." Whatever else may be said about the amending legislation, it did not reduce complexity.

    38. In my opinion the key provision in section 232A is, for present purposes, condition (c). Is it the case that the two members were not accorded entitlement to vote in the ballot? For this purpose, one must consider what counts as being accorded entitlement to vote.

    39. Before the 1999 amendments, the concept of being accorded entitlement to vote was already being used in section 227(1). That provided that entitlement to vote must be accorded equally to all members of the union whom it was reasonable to believe would be induced to take part in the industrial action. Subsection (2), which was repealed by the 1999 Act, provided:

"The requirement in subsection (1) shall be taken not to have been satisfied if any person who was a member of the trade union at the time when the ballot was held and was denied entitlement to vote in the ballot is induced by the union to take part…in the industrial action."

    40. Here too, there were no exceptions. No one may be denied entitlement to vote. So the previous legislation also raised the question of what counted as being accorded entitlement to vote, or not being denied entitlement to vote. In particular, does the fact that one has not been sent a ballot paper mean that one has not been accorded entitlement to vote? If it did, then failure to send any person a ballot paper would have invalidated the ballot.

    41. The answer to this question may be found in section 230(2), which provides that "so far as is reasonably practicable" every person who is entitled to vote must be sent a ballot paper. That provision in my opinion shows that, if it was not reasonably practicable, the omission to send a ballot paper to a person entitled to vote does not amount to a denial of his entitlement. Otherwise there would be no point in the qualifying words "so far as is reasonably practicable". The ballot would have complied with section 230(2) but would nevertheless have been invalidated by section 227(2).

    42. Mr Giffin accepted this argument to the extent of agreeing that failure to receive a ballot paper does not necessarily mean that one has not been accorded entitlement to vote. It would have been sufficient, he said, if the names of the two members had been included in a list of the names of members whom the union regarded as belonging to the constituency to whom ballot papers should be sent. Then, if it had not been reasonably practicable to send them papers, or now (by virtue of section 232B) if that omission was accidental, that would not have detracted from the fact that, by inclusion on the list, they had been accorded entitlement to vote. In the present case, however, the names of the two members had not been included in any list of those entitled to vote.

    43. In my opinion there is no requirement in the statute for a list to be drawn up. Section 227(1) defines the constituency who must be accorded entitlement to vote, both positively and negatively. The constituency must include all members whom it is reasonable for the union to believe will be induced to take part in the industrial action and it must not include any others: see London Underground Ltd v National Union of Railwaymen, Maritime and Transport Staff [1996] ICR 170, 178, per Millett LJ. Furthermore, entitlement to vote must be accorded equally, with no members having any special privileges. But what counts as being accorded entitlement to vote must in my opinion be discovered from the other provisions of the Act. Section 227(1) does not impose the additional requirement of doing some other unspecified act like drawing up a list.

    44. Sections 228-230 contain the provisions which deal with the conduct of the ballot. In my opinion, compliance with these provisions in respect of the constituency identified by section 227(1) means that the members of that constituency have been accorded entitlement to vote. In the case of the distribution of ballot papers, section 230(2) makes those requirements subject to the proviso of reasonable practicability and section 232B makes both sections 227(1) and 230(2) subject to the disregard of small accidental errors. If failure to send a ballot paper to a person within the constituency falls within either of these exceptions, he is not by reason of that failure to be treated as having not been accorded entitlement to vote.

    45. I do not think that the concept of being accorded entitlement to vote in section 232A(c) was intended to mean something different from what it meant in section 227 before the amending legislation. As it seems to me clear that, before the 1999 Act, section 227 would have been treated as satisfied, I do not think that the negative condition in section 232A(c) should now be treated as satisfied.

    46. Mr Giffin said that giving section 232A(c) this construction would mean that section 232A made no difference to the previous law. That may be right. The only clue to what section 232A was meant to do is in paragraph 137 of the Explanatory Notes to the Employment Relations Act 1999, a final and consolidated version of the Notes published during the passage of the Bill through Parliament: see the speech of my noble and learned friend Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38; [2002] 1 WLR 2956, 2957 - 2959. It says of the new provision: "This will enable unions to induce members who changed job after the ballot to take action." This suggests that it was previously doubtful whether it was lawful to induce industrial action by members of the union who, because they were not working for the relevant employer and therefore not reasonably contemplated at the time of the ballot as falling within the constituency defined by section 227, had not been included in the ballot.

    47. The argument that inducing such members would not have been lawful had the support of a dictum of Lord Donaldson of Lymington MR in Post Office v Union of Communication Workers [1990] ICR 258, 268. But this dictum was (in my respectful opinion rightly) disapproved by the Court of Appeal in London Underground Ltd v National Union of Railwyamen, Maritime and Transport Staff [1996] ICR 170. It is true that the Court of Appeal confined its disapproval to the case of persons whom it is not reasonable for the union to believe will be induced to take part because they are not at the time of the ballot members of the union. It said nothing about cases in which they were not at the time of the ballot working for the relevant employer. The Explanatory Notes suggest that the purpose of section 232A was to close this perceived gap. But in my opinion the logic of the decision in the London Underground case must apply equally whether the reason why the union has not balloted a person afterwards induced to take part in industrial action is because he was not a member or because he was a member but not working for the relevant employer. In either case, it would not have been reasonable for the union to believe at the time of the ballot that he would be induced to take part.

    48. If this means that Parliament enacted superfluous legislation, it would not be the first time. It is certainly more likely than that Parliament intended, at one and the same time, by section 232B to create a proviso for some accidental errors and by section 232A to deprive the union of protection from liability in the case of the accidental error most likely to occur, namely an omission to include a member in the ballot paper mailing list.

    49. For these reasons, which are substantially the same as those given by Waller LJ in the Court of Appeal, I think that the industrial action had the protection of a ballot. For the sake of completeness I should add that I do not think that it matters which particular time is meant by "the time of the ballot" in section 227(1) and "the time when the ballot was held" in section 232A(a). The question is whether, looking at the balloting process as a whole, the two members were denied (or not accorded) entitlement to vote.

    50. I would therefore dismiss the appeal.

    LORD HOBHOUSE OF WOODBOROUGH

    My Lords,

    51. For the reasons given by my noble and learned friends Lord Hoffmann and Lord Walker of Gestingthorpe and in agreement with their Opinions, I too would dismiss this appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    52. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Hoffmann and for the reasons he gives, with which I am in complete agreement, I too would dismiss this appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    53. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with his speech and for the reasons set out in it I would dismiss this appeal. I add some comments of my own on the two issues (the trade dispute issue and the ballot issue) because of their importance and interest.

    54. For almost a century Parliament has recognised that strikes, overtime bans and other actions taken in the course of an industrial dispute call for special legislative treatment. The legislation has had a tortuous history. Lord Scarman (speaking in 1979 about trade union and employment legislation enacted in 1974 and 1975) observed in NWL Ltd v Woods [1979] 1 WLR 1294, 1311:

"It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them. This history I would summarise as a shifting pattern of Parliamentary assertions and judicial responses—a legal point counter-point which has been more productive of excitement than of harmony."

    55. The shifting pattern can be clearly seen in the statutory definition of "trade dispute". The first and simplest definition was in section 5(3) of the Trade Disputes Act 1906:

"any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person".

    56. So from the first "trade dispute" was defined (as Lord Diplock put it in NWL Ltd v Woods, at p 1301) by reference to (i) the parties to it and (ii) the subject matter. Originally the requisite nexus between the subject matter and the dispute was the relatively undemanding formula "in connection with", a form of words which continued through the changing legislation until an important amendment first made in 1971, then reversed in 1974, and finally restored by section 18 of the Employment Act 1982. This imposed the more demanding test that the dispute should "relate wholly or mainly to" subject matter falling within the statutory definition. The application of this test requires the court

"to consider not merely the occasion which caused the dispute to break out but also the reason why there was a dispute": (see Dillon LJ in Mercury Communications Ltd v Scott-Garner [1984] Ch 37, 97 on section 29 of the Trade Union and Labour Relations Act 1979, as amended).

    Dillon LJ then gave some examples from reported cases and continued:

"Indeed, rather than asking what the dispute is about, which can produce a variety of answers of different degrees of helpfulness, it is better to turn the question round, and, having isolated 'fear of job losses' as the only factor within section 29 relied on by the union, to ask 'Is this dispute wholly or mainly about fear of job losses?'"

    57. In the Industrial Relations Act 1971 (which had a short and controversial life) the subject matter of an industrial dispute (the term used in that Act for a trade dispute) was by section 167 (1) extended (or at any rate particularised) so as to include suspension from and termination of employment, allocation of work and procedure agreements (an obsolete term which need not be considered further). It also recast the basic elements of the definition in the Trade Disputes Act 1906, the first specified subject matter being

"(a) Terms and conditions of employment, or the physical conditions in which any workers are required to work".

    It is clear that "conditions" was here being used in two distinct senses, since the expression "terms and conditions of employment" was defined as the terms and conditions on which workers are employed. That definition was not reproduced in the Trade Union and Labour Relations Act 1974, but the two senses of "conditions" were carried forward to section 29 (1) of that Act. "Terms and conditions of employment" is to be widely construed (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191, 227) and it is best construed as a single composite expression.

    58. Whether there is a trade dispute is a mixed question of fact and law, but (as Sir John Donaldson MR said in Mercury Communications Ltd v Scott-Garner [1984] Ch 37, 75) primarily one of fact. It is a question to be decided objectively, whereas the question whether action is taken in furtherance of a trade dispute is subjective: see the decisions of this House in Express Newspapers Ltd v McShane [1980] AC 672, and, less than two months later, Duport Steels Ltd v Sirs [1980] 1 WLR 142 (in which the House made some important observations about the need for even-handed judicial interpretation of controversial legislation in this field).

    59. That is the background to the provisions now in force, which are to be found in Part V (Industrial Action) of the Trade Unions and Labour Relations (Consolidation) Act 1992 ("the 1992 Act") as amended. My noble and learned friend Lord Hoffmann has summarised all the relevant provisions but I will set out in full the definition in section 244 (1) of "trade dispute" (for the purposes of Part V):

"a dispute between workers and their employer which relates wholly or mainly to one or more of the following—

(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;

(c) allocation of work or the duties of employment between workers or groups of workers;

(d) matters of discipline;

(e) a worker's membership or non-membership of a trade union;

(f) facilities for officials of trade unions; and

(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures."

    60. It is important to note that the dispute must relate wholly or mainly to one or more of the topics identified in paragraphs (a) to (g). Those paragraphs are not mutually exclusive categories. The statutory definition has emerged in a piecemeal way and some of the later paragraphs seem to have been added only for the avoidance of doubt. The additions should not be used to narrow the wide natural meaning of the expressions in paragraph (a).

    61. I respectfully agree with Lord Hoffmann that in this case it is really quite clear that the dispute was about the teachers' terms and conditions of employment. That expression cannot sensibly be restricted to a dispute which proceeds at some relatively high level of generality.

    62. Statutes dealing with employment, trade unions and labour relations are of the highest social importance. Parliament's objective is to frame such statutes in language which is unambiguous and capable of being understood by the members of the general public who may not have ready access to legal advice. This appeal shows that unfortunately that objective is sometimes imperfectly achieved. The need to avoid ambiguity may actually pull against ready understanding, and sometimes the statutory text (especially when amended either in the course of the legislative process or by later statutes) seems to fall between two stools. That is, I fear, true of the provisions dealing with ballots in Part V of the 1992 Act, as amended by the Trade Union Reform and Employment Rights Act 1993 ("the 1993 Act") and the Employment Relations Act 1999 ("the 1999 Act"), with which your Lordships are concerned on this appeal.

    63. The provisions in question have been set out at length in the speech of Lord Hoffmann. I draw attention to three particular difficulties on which your Lordships have heard a good deal of debate:

(1)  What is "entitlement to vote" and how is it "accorded" within the meaning of section 227 (1) of the 1992 Act?

(2)  What was the legislative purpose of replacing section 227 (2) of the 1992 Act by section 232A (added, together with section 232B, by the 1999 Act)?

(3)  What points or periods of time are referred to by "at the time of the ballot" in section 227(1) and "at the time when the ballot was held" in section 232A(a) (and, by reference, (b))?

    64. In a parliamentary or local government election entitlement to vote is determined in the first place by statutory rules (in terms of nationality, age, residence and so on) and in the second place by an electoral roll, carefully prepared in accordance with detailed statutory procedures and then standing as a definitive record of entitlement until the next roll is prepared. The class of persons entitled to vote in a parliamentary or local government election—the constituency of the poll—is therefore defined by an official list of names. But there is no close parallel with a ballot held under Part V of the 1992 Act.

    65. Every trade union is required by law to maintain a register of its members (see section 24 of the 1992 Act). But it is a fact of life that no trade union of any size can keep completely full and accurate records of the names and addresses of its ever-changing body of members, still less their current places of work, trade categories and pay grades (see for instance the evidence summarised in London Underground Ltd v National Union of Rail, Maritime and Transport Workers [2001] ICR 647). It is comparatively rare for a large union to call out on strike every one of its members. In practice, as in this case, the decision is often to call out members employed at a particular workplace where a dispute arises, or members in a particular job. As Millett LJ said, by way of explanation of section 227(1), in the earlier case of London Underground Ltd v National Union of Railwaymen, Maritime and Transport Staff [1996] ICR 170, 178:

"If the union intends to call out signalmen but not train drivers, the signalmen must be balloted; the train drivers must not".

    Where that happens the constituency for the necessary ballot is most naturally described in those terms; in this case, NASUWT members employed at the B school. As the agreed statement of facts and issues puts it (para 10) the union "intended to ballot all its members at B school".

    66. In theory the union should have been able to produce from its computerised records a printout showing all its members at the B school. In practice it produced a list which was reasonably accurate but not wholly accurate: it included the names of five teachers who had by then moved on, and it omitted the names of two teachers who had joined the school staff, in each case without letting the union know about their moves. The inaccurate printout was in practice the source of the error in distributing ballot papers. But there is nothing in the statutory provisions, or in the way in which the union's head office seems to have acted, to indicate that the printout was intended to be definitive. Had either of the recently-joined teachers rung up the head office to protest at non-receipt of a ballot paper, the answer might have been, "It is too late to do anything about it" but it would not have been "You are not entitled to vote". The printout was not a definitive document like an electoral roll.

    67. This tentative analysis is, I think, given support by the absence of any statutory requirement for a union to send to the employer anything like an electoral roll of those who are to be balloted and (if the ballot goes in favour of industrial action) to be called out. On the contrary section 226A (3A) of the 1992 Act, as amended by the 1999 Act, specifically disentitles the employer from a list of names, for reasons which appear from the judgment of Sir Thomas Bingham MR (on section 226A in the original form in which it was inserted by the 1993 Act) in Blackpool and the Fylde College v National Association of Teachers in Further and Higher Education [1994] ICR 648.

    68. Mr Giffin (in the reply which concluded his clear and well-informed submissions) described this approach as confusing two distinct elements (entitlement to vote and opportunity to vote) and as leading to ludicrous consequences. To my mind it does not confuse entitlement with opportunity: on the contrary, it distinguishes these two elements. Nor does it lead to the result (which would indeed be ludicrous) that a union, having decided to call out all its members at a particular workplace, could then deliberately withhold ballot papers from those members at the workplace whom its officers suspected of being opposed to industrial action. Any such action would be a clear breach of section 230(2) and would not be saved by either limb of the "belt and braces" exceptions (that is the words "so far as is reasonably practicable" in section 230 (2) and the provisions of section 232B).

    69. In approaching the second problem (the legislative purpose of sections 232A and 232B) I start, therefore, from the proposition that if a union intends to call out a class of its members (here members employed at the B school) then that class, defined in that way, is the constituency. The union expects to be able to identify precisely the members in the constituency and give them all the opportunity to vote but it is apparent that this objective may not be achieved for a number of reasons: (i) inaccurate records; (ii) further moves of members to or from the school staff while the ballot process is prepared and takes place; (iii) (although unlikely on the facts of this case) moves in or out of union membership during that period; and (iv) mistakes happening during the ballot process (such as letters getting lost on the way to the post, or in the post).

    70. Section 227(2) of the 1992 Act provided as follows until repealed by the 1999 Act:

"The requirement in subsection (1) shall be taken not to have been satisfied if any person who was a member of the trade union at the time when the ballot was held and was denied entitlement to vote in the ballot is induced by the union to take part or, as the case may be, to continue to take part in the industrial action".

    This provision reproduced (in almost identical language) section 11(2) of the Trade Union Act 1984. In British Railways Board v National Union of Railwaymen [1989] ICR 678, 683, Lord Donaldson of Lymington MR said of this provision:

"Simplifying that a little bit and reading it with section 11(1), which defines who is qualified and entitled to vote, section 11(2) is saying 'If you do not allow somebody to vote, if you say "You are not entitled to vote," then you cannot call him out on strike. He has not had an opportunity to express his view, and, if you do call him out on strike, then the whole ballot fails and the strike or other industrial action cannot be justified.' Nobody has suggested that anybody entitled to vote has been disqualified from voting. What Mr Carr says is that if they were not given an opportunity of voting they were denied their entitlement to vote. I disagree. There is a profound difference, as I think, between denying someone's entitlement to vote and inadvertently failing to give him an opportunity to vote".

    71. At the beginning of the appeal hearing I was inclined to the view that the purpose of the introduction of section 232A was to remove the strong significance which Lord Donaldson of Lymington MR placed on the word "denied", and that the purpose of section 232B was to give statutory force and clarification to a reference to the de minimis principle referred to by Lord Donaldson in another case, Post Office v Union of Communication Workers [1990] ICR 258, 268. I remain of the view that the purpose of section 232B is to extend the limited protection for innocent and immaterial errors in balloting procedure contained in the 1992 Act in its original form. I have however altered my view about section 232A.

    72. In my view its main purpose was to replace section 227(2) with a provision on the same general lines (that is, spelling out the consequences of any non-compliance with section 227(1)) but in such a way as to take account of the complications identified by Millett LJ in the first case of London Underground Ltd v National Union of Railwaymen, Maritime and Transport Staff [1996] ICR 170. Millett LJ focussed on changes in union membership; he did not (because of the facts of that case) focus on changes in an employee's workplace (not accompanied by any change in the identity of the employer or the nature of the employee's job). Section 232A (b) has the effect of covering both points, whereas section 227(2) did not (at any rate expressly) cover both. Section 232A(c) uses the rather odd expression "not accorded" in place of "denied" but I am not satisfied that that was intended to mark a significant change of effect. If Parliament had intended such a change, it would have made its intention clearer, especially as the side note to the amending provision (Schedule 3, para 8) of the 1999 Act referred to "denial" of entitlement to vote.

    73. For these reasons I consider that the two teachers who had not told their union about their new employment at the B school were not persons who were "not accorded entitlement to vote". The error made in their case fell within section 230(2), to which section 232B does apply. The ballot issue was raised on behalf of the appellant only on the morning of the hearing. Had it been raised at an earlier stage, the judge would probably have had fuller evidence about this aspect of the matter. As it is, the only fair conclusion is that any defect in the ballot can be disregarded under one or both of the exceptions to section 230(2).