British Airways PLC v Unite The Union  EWCA Civ 669
Appeal against grant of interim injunction preventing industrial action where the injunction had been granted because of defects in the communication of ballot results. Appeal allowed by a majority.
The injunction was sought by the claimant's on the ground that the union was seeking to induce employees to breach the employment contracts through participation in unlawful industrial action. The action was unlawful, they claimed, as the union had not complied with the provisions of s231 of the Trade Union and Labour Relations (Consolidation) Act 1992 which sets out the information that union members should receive about the results of a ballot on industrial action. The union had provided the information to members in different ways, including on a website, notice boards and local news sheets. The claimants argued, among other things, that these methods were not active and that other means of communication could and should have been adopted. They also argued that the union did not properly disseminate information about votes cast and spoiled papers as required by s231.
Giving the lead judgment, the Lord Chief Justice reviews the history of the strike action, the methods of communication used by the union and the wording of the statutory provisions. He notes that nothing in s231 prescribes the methods of compliance and that the concept of reasonableness set out meant that the union was not required to prove that every eligible member was personally sent an individual report. In that light, he concludes that if the case went to trial there would be a high probability that the union would establish the process was sufficient. Lady Justice Smith agreed overall but also states that the infringements of the strict requirements necessary were minor and should not invalidate the ballot. The Master of the Rolls gave a dissenting judgment.
_________________Case No. C1/2010/1197
Neutral Citation Number:  EWCA Civ 669
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE MCCOMBE)
Royal Courts of Justice
Thursday, 20 May 2010
THE LORD CHIEF JUSTICE OF ENGLAND & WALES
THE MASTER OF THE ROLLS
LADY JUSTICE SMITH
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BRITISH AIRWAYS PLC
UNITE THE UNION
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(Transcript of WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
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MR D READE QC and MR P GOTT (instructed by Baker & McKenzie) appeared on behalf of the Claimant.
MR J HENDY QC and MR B COOPER (instructed by Thompsons) appeared on behalf of the Defendant.
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- LORD CHIEF JUSTICE: There are a number of people standing. This is going to take some time, because we are, each of us, reading our own judgments. I don't suppose Mr Hendy would take any objection if those of you standing at the back there came and sat in leading counsel's row to make whatever notes you like.
- If you want to go in and out, do. Thank you very much, Mr Hendy.
- The other point I want to make before we start is that we shall order an expedited preparation of the transcript of the judgment, but I am afraid that at this stage there will not be copies of our judgments to be handed down. We have been writing until the last minute.
- This is an appeal by Unite (the Union) with leave of this court against the order of McCombe J dated 17 May 2010 granting British Airways Plc (BA) an interim injunction restraining the Union from taking industrial action against BA in reliance on a ballot conducted between 25 January and 22 February 2010. It arises from an industrial dispute with which most members of the public will be familiar. The rights and wrongs of this dispute and the merits and demerits of the proposed industrial action do not arise for consideration in this appeal. Indeed, we are obliged wholly to ignore and to refrain from any comment on them.
- The industrial action by members of the Union, who are cabin crew employed by BA, was due to start on 18 May. If pursued, the action would have involved four periods of strikes over discontinuous dates between 18 May and 9 June, with consequent huge losses to BA estimated conservatively at £138 million and severe disruption and inconvenience to its many passengers.
- The grounds upon which BA sought the injunction were that the Union had induced and was inducing its employees to break their contracts with BA by taking unlawful industrial action. It was asserted that the Union was inducing, procuring or persuading employees of BA, and in particular employed by BA in the categories of cabin crew, to break their contracts of employment by strike or other industrial action, or otherwise failing and/or refusing to cooperate with BA in ensuring the full and unimpeded operation of BA's business, in reliance upon a ballot conducted between 25 January 2010 and 22 February 2010.
- The basis of the claim was that the statutory protection granted to the Union by section 219 of the Trade Union and Labour Relations Consolidation Act 1992 (the 1992 Act) depended upon compliance by the Union with a number of distinct statutory conditions to be found in Part V of the Act, one of which it was contended was unfulfilled. Accordingly the statutory protection was forfeited.
- The problem to which these proceedings give rise is readily identified. The ballot itself was carried out impeccably in accordance with the statutory requirements. 11,691 ballot papers were distributed to eligible voters. The process was scrutinised by an independent body, Electoral Reform Services. 9,282 ballot papers were returned, representing a turnout of 79.39 per cent. 11 of the ballots were spoiled. 7,482 votes were cast in favour of industrial action with 1,789 cast against. In short, the vote in favour of strike action was overwhelming.
- There is, therefore, no doubt that as a result of a properly conducted democratic process, the eligible members of the Union supported the call for industrial action and that they were willing to face all the inevitable consequences of such action.
- The judge nevertheless granted BA the restraining order it was seeking. His approach was governed by section 221(2) of the Act, which requires the court considering an application for an interlocutory injunction against a trade union in the context of actions said to be taken "in contemplation or furtherance of a trade dispute" to exercise its discretion:
"... whether or not to grant the injunction, having regard to the likelihood of that party's succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) ..."
- The judge expressed his sympathy with the Union and the members who had voted in support of industrial action, and added that: "to be entitled to protection from the consequences of otherwise unlawful conduct, it is necessary to demonstrate that the conditions of that statutory protection are satisfied."
- He was unable to say that it was sufficiently clear, "... that the Union took the steps required by law at the time when they were required so as to outweigh other factors" in favour of granting the injunction sought by BA.
- It is, perhaps, hardly necessary for us to emphasise that McCombe J's decision was not based on a judicial whim. He was bound, as we are bound, not by the democratic process conducted by the Union, but by the Act of Parliament which governs the right of employees to strike and to take industrial action against their employers.
- Before addressing the statutory provisions and the issues which arise in this appeal, I must caution against this judgment being read for what it is not. It is not a final judgment in the litigation. It is a judgment relating to an appeal against an interlocutory order providing one party with injunctive relief against the other. The observations which follow must be seen in that context, but it will make for very poor reading and very poor listening if I say, on every occasion when it is appropriate to do so, that "so and so is arguable, or "it is arguable that". The judgment must be examined in that context.
- Most of the relevant statutory provisions are clear. Section 219 of the Act provides protection against possible tort liabilities arising from actions carried out in contemplation or furtherance of a trade dispute. The protection depends on support by a ballot for industrial action and it can only be regarded as having such support if, in accordance with section 226(2)(a), "the Union has held a ballot in respect of the action: (i) ………….., (ii) in relation to which the requirements of section 227 231 were satisfied, and (iii) in which the majority voting in the ballot answered "yes" to the question…….?
- As we have indicated, the third condition was fulfilled. The only question is whether the requirements of section 231 were satisfied. This section is not concerned with any of the steps taken before or during the ballot: it is limited to the provision of information about the result of the ballot. It provides:
"As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of:
"(a) votes cast in the ballot.
"(b) individuals answering 'yes' to the question ...
"(c) individuals answering 'no' to the question ...
"(d) spoiled voting papers."
- Provision is also made requiring the Union to inform the employer whose interests would be affected by the ballot of the results. In slightly different terms section 231A provides:
"As soon as reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that every relevant employer is informed of [precisely the same matters as those to be provided to all those individuals who are entitled to vote]."
- The Union complied with the requirement in section 231A and notified BA of the ballot result in accordance with the statute. The contention is that there was a failure to comply with section 231, that is to provide appropriate information to the relevant union's constituents.
- As already noted, section 231 is directed to events which follow a properly conducted ballot and the interests protected by section 231 appear to be the interests of the Union members, not the interests of the employers.
- The members are entitled to be informed about four specific features of the ballot. That information must be provided by the Union. I cannot, however, refrain from observing that there is a certain irony that it is the employers in this case whose application is based on an asserted non compliance by the Union with steps created in the interests of the members, when the employers know perfectly well that an overwhelming majority of the members wish to take strike action and that the object of these proceedings is to restrain them from doing so. Nevertheless, in my judgment, the statutory provisions appear to be in wide enough terms to enable BA to take proceedings on this basis, and the contrary has not been argued.
- That said, it is the Union, not the employers, which must make broad judgments about how to achieve compliance with its section 231 obligations in the overall factual context in which the issue comes to be addressed. And thereafter it is for the court, not the Union, nor the employers, to make an objective evaluation of the steps taken and the process by which the Union has sought to comply with its obligations and to decide whether or not it has done so and, in the context of an interlocutory injunction, to make a judgment about the likelihood of the Union establishing the required level of compliance at a subsequent trial.
- The steps which must be taken to comply with section 231 are those "reasonably necessary to ensure" that the statutory information is provided. I have some difficulty with the concept of steps which are "reasonably necessary". Phrases such as "all reasonable steps" or indeed "all necessary steps" would not create the same difficulty, but the reference to "reasonableness" in the context of necessity seems to me to diminish the strict ordinary meaning of "necessary", and to allow for a measure of focus on practical realities.
- Since preparing this part of my judgment, the Master of the Rolls has discussed with me two authorities which he has discovered overnight, to which he will refer in his judgment, which I believe to be consistent with the view that I have formed.
- My view is further reinforced by the contrast between the terms of section 231 and those provisions where obligations are expressed in much more absolute terms, such as the right to vote without interference from or restraint imposed by the Union, or any member, section 230(1). Again, for example, the entitlement to vote in the ballot "must" be accorded, section 227(1). Those entitled to vote "must", so far as practicable, be provided with a voting paper to be sent by post to their home addresses or the postal addresses they supply and be given a convenient opportunity to vote by post, section 230(2). Even so, accidental failures to comply with these apparently absolute provisions relating to the ballot processes in section 221, 227(1) and 230(2), but not section 230(1) which by definition cannot be accidental, are to be disregarded, provided they would be unlikely to affect the result of the ballot (section 232.) No such provision is made in relation to compliance with section 231, or section 231A.
- On first consideration that seemed to present something of a difficulty to the Union's argument, because the omission must be deemed to have been deliberate, but on reflection it was deliberate, because, as it seems to me, it was deemed to be unnecessary. There can be no possible basis for elevating the provision of information to the members of the Union about the result of the ballot in the form of a detailed breakdown on voting figures to pre eminence above the proper conduct of the ballot itself. After all, without a properly conducted ballot there can be no valid or binding result.
- Accordingly, if the result of a ballot itself is unaffected by accidental, small scale failures in the process, it is difficult to see why minor failures about the provision of information about the results to the Union members should undermine the entire process. Different considerations arise in the context of information to be supplied to the employers, not least because non compliance with that obligation will almost inevitably be deliberate.
- These considerations are not critical to the outcome of the present appeal, but, if right, they tend to suggest that the provision of information to individual union members, important as it is, is less than absolute.
- Nothing in section 231 prescribes the method of compliance. If a letter were compulsory, express reference would have been made to the use of the post in this part of the process, as it is in relation to the ballot. The relevant Code of Practice, addressing the requirements of section 231, suggests that the Union should consider the use of local communications, news sheets and union branch notice boards for the purpose. It makes no express reference to modern technology, but as it seems to me, it would be absurd if the relevant information could not be conveyed through the use of modern technology, such as websites and e mail.
- In this context our attention was drawn and Mr Reade QC, on behalf of BA, relied heavily on some observations by Mrs Justice Sharp in Network Rail Infrastructure Limited v The National Union of Rail, Maritime and Transport Workers  EWHC 1084 (QB). Mrs Justice Sharp observed:
"It seems to me that section 231, on the face of it, requires active steps to be taken to provide information. I think there is a real distinction between taking active steps by sending information to the members concerned, and identifying for them a place where they can go and get the information if they wish to have it. It may be in this day and age most people would be able to use a computer and have access to it, but that cannot be assumed. It seems to me that for good policy reasons, it is important that members are given the information which they are entitled to by section 231 actively, rather than merely being told where they can go and get it if they wish to have it."
- Mrs Justice Sharpe did not identify the good policy considerations which she had in mind, but for present purposes, perhaps more important, while the distinction she identified between taking active steps to send information to the members, and identifying a place where they could go and find the information, may have been appropriate to the decision in that particular case, universally applied it represents a gloss on the statutory requirements. The important issue is that the members should be informed of the result, that is in the form required by section 231, and in this day and age, when, as here, the members of this union are highly computer literate, and use modern technology on a daily basis, there is no reason why the fact that they have to take a few simple steps themselves at a keyboard could possibly mean that they are not being supplied with information within the ambit of section 231.
- For all these considerations, I conclude, consistently with the deployment of the concept of reasonableness in section 231, that the Union is not required to prove that literally every eligible member was personally sent his or her own individual report of the full results. A test of such strictness would be unrealistic and, as it seems to me, McCombe J came very close to applying it when he came to his conclusion in this case.
- The analysis of the steps taken by the Union must begin by putting the present intended industrial action in its context. The Union conducted a ballot about proposed industrial action in November/December 2009. 80 per cent of the constituents voted in the ballot, and 92.49 per cent supported strike action. However, on the basis of non compliance with the full statutory requirements, but not, as I understand it, on the basis of any section 231 point, although the results of the first ballot were communicated to union members in the same way as the second ballot, Mrs Justice Cox granted BA an injunction restraining the Union from taking the proposed strike action. The results of the first ballot immediately became irrelevant to any processes, though I suspect, not to the feelings of the members of the Union.
- Accordingly, a second ballot was organised. The fact that there was a second ballot must have impacted on the process in a number of ways. The most obvious are, first, that the Union must have appreciated, if it did not appreciate before, the importance of compliance with what can be described as technical requirements of the Act; and second, that the interest of the members of the Union, in every aspect of the second ballot, would be greatly heightened, not least because they had been restrained from taking the industrial action supported by so many of them.
- There was, says Mr Turner, National Secretary (Civil Air Transport) of the Union:
"... a very high level of interest in the second ballot which it is difficult to overstate. It is important to understand the practical reality of the situation. The Union was well aware that members were very engaged and were closely monitoring its principal means of communication, namely its websites, notice boards and news sheets ... I am in no doubt that any such communication to do with the ballot or strike would be widely disseminated and discussed amongst all BA's cabin crew within a very short space of time. Further, if any member had ultimately had concerns about the ballot or the information which they had been given about it, I have no doubt that such concerns would have been brought to the attention of Unite, or at least of BA."
- As I have said, the second ballot itself was impeccably conducted. The results produced a slightly reduced but still overwhelming majority in favour of the action. After notification was given to BA on 12 March, strike action took place between 20 and 22 March and again between 27 and 30 March. This produced considerable disruption to the travelling public and a significant loss to BA estimated at £40 million to £45 million. As far as I am aware, no proceedings were taken to prevent either of these strikes, nor was any question then raised about non compliance with section 231.
- On 10 May the Union notified BA of proposed further industrial action to be starting on 18 May and continuing with short gaps until 9 June. This notification produced a response from BA in the form of a letter dated 13 May asserting that BA did not believe that the Union had complied with its section 231 obligations and requesting the Union to inform BA of the steps it had taken to comply with them.
- The Union responded shortly before 3 pm on 14 May, stating that:
"The ERBS Scrutineer's report was provided to the Union at 3.59 pm on 22 February. At approximately 4.45 pm the report was given to union representatives who posted copies within half an hour of receipt on notice boards in all crew report centres and it was made available in the Union's offices and copies were provided on display stands outside those offices. Copies were also handed out to members in all report areas. The ERBS scrutineer's report gave all of the information required by S231 of the Trade Union and Labour Relations Consolidation Act 1992. A text message giving details of the result was also sent out to all BASSA members within one hour of receipt of the result by the representatives. In addition a press release giving details of the result was put out on all the Union's websites and e mailed to members on 22 February and a video of the assistant general secretary announcing the result at a press conference was put on the website the same day. As you are also aware, a communication was sent by your Mr Walsh to all staff on 22 February 2010 announcing the ballot results."
- There is a problem with that response, in that, for example, details of the press release giving details of the result, as is put in the letter, did not necessarily and did not in this particular case provide all the information required by section 231. It is therefore criticized on behalf of BA. But the account of these events was amplified in affidavit evidence filed on behalf of the Union once BA made the application for injunctive relief.
- In summary, the Union communicates with its members on a regular basis. This is certainly true of communications with its members in this now long running dispute. BA cabin crew members that is the relevant membership of the Union are highly computer literate. They use the internet on a daily basis, indeed it is part of the requirement made by their employers that they should use electronic means for vital communications and instructions. The Union took the view that it should use the Union website for the purpose of conveying any important information about any topic to these members. Generally speaking it has been found that "the only reliable method" of communicating information is to use a combination of the Union websites, the Union notice boards and news stands, and the local news sheets.
- The first website was uniteba.com, a public access website available to all members of the Union and the public at large. The second was a closed website for former BASSA members, now members of the Union, who could access this website with a user name and password. 95 per cent of the relevant members of the Union are former BASSA members.
- In his affidavit Mr Turner observed that the website is used by the Union as its principal means of communication with its cabin crew members and Unite has devoted considerable resources to developing the website in recent years. It is in the judgment of the Union, and in this respect there is no contradictory evidence, that the website is indeed the most effective means of communicating with its members.
- There are union notice boards in prominent places within crew report centres to which every member of cabin crew must report in order to log on at the start of their duties. This is done electronically through a computer terminal. The Union notice boards are located next to notice boards used by BA for posting mandatory notices for its employees. These notices must be read by all cabin crews before their duties start and they are required to acknowledge electronically that they have done so.
- It is believed, and again there is no reason at this stage to question, that union members would generally speaking read the Union notices posted on the union notice board located next to the BA notice boards. Certainly they would in the context of the current trade dispute.
- It is a further requirement for crew members assigned to the Worldwide Fleet that they should attend the report centres and sign out electronically at the end of their periods of duty, not, however, an obligation for crews on European flights, although again according to the evidence many do visit the report centres at the end of their duties. The evidence is that crew members who attend for work will, therefore, be likely to see any notice placed on the Union notice boards. The Union also produces news sheets when important information needs to be conveyed. These are placed in news racks in the Union offices and are also distributed, when they are important, in the crew report centres.
- Where an issue is important, and this industrial dispute plainly is, it is said that this is a "tried and tested means of communication which has proved effective". Indeed, where the Union wishes to achieve speedy worldwide coverage for the dissemination of information to cabin crew, the use of such news sheets has indeed proved effective.
- The Union suggests that it had taken the steps necessary to communicate the full results of the ballot to its members on the basis of its own experience of what was needed for the purpose of communicating messages of importance to them. From the Union's experience, and given the crucial importance of this particular industrial dispute to its members, as well as the history of the restraining order preventing strike action, notwithstanding the result of the first ballot, these methods of communication seem to me to have represented a sensible, practical approach to compliance with the statutory duty imposed by section 231.
- The way in which the different methods of communication were used are identified by Mr Turner at paragraph 20 of his affidavit. He says:
"(a) At 4.55 pm on 22 February 2010, I attached the full ERS report in PDF format to an e mail I sent to all relevant local representatives with an instruction to them to 'post both the two page report and the cover letter to the company immediately on the websites and print off for notice boards and crew room distribution' (pages 6 9). I believed that these steps would satisfy the Union's obligation to communicate the results to its members. We had taken legal advice as to what was required, which I understand took into account the steps recommended by the statutory Code of Practice and we had also undertaken the exercise in the same way in December 2009 (and this was not an issue raised by BA in its injunction application on that occasion).
"(c) Also at 5 pm on 22 February, Anna Roffey (BASSA representative at Gatwick) forwarded my original e mail ((a) above) to another local representative, Dominic Rothwell based at Gatwick (pages 10 13).
"(d) At 5.03 pm 22 February, a text message was sent to all former BASSA members who had signed up for the text update service, which stated: 'Ballot result: 81% yes vote; 19% no vote, with a 80% turn out: Thank you'.
"(e) At 5.09 pm on 22 February, the percentages voting 'yes' and 'no' respectively and the percentage turnout were e mailed to former BASSA members who had signed up for the e mail service (page 14).
"(f) At some time between around 5.15 pm and 5.25 pm on 22 February, Adam Marley (local representative) posted the full ERS report as a 'pdf' file on the uniteba.com website (at the following web address: http://uniteba.com/ESW/Files/ballotresult.pdf). From that point, the link to that report would appear in the 'latest news' section of the website and would be immediately visible to anyone visiting the website. For reasons I have explained above, it is my belief that this was the single most effective means, indeed the essential means, of communicating the results to the members.
"(g) At around the same time, the full result and a link to the uniteba.com site were also placed on the BASSA.co.uk website. 95% of Unite's cabin crew members are BASSA members. I would suggest that it is striking to note the statistics in relation to the number of people logging onto the BASSA.co.uk website following the ballot result. It will be recalled that the BASSA.co.uk website is accessible by members only and requires a user name and password, so that the numbers logging on will all represent cabin crew members. The numbers accessing that website over the relevant period were as follows and I would suggest that those numbers show the effectiveness of the websites as a means of communication with our members: 20 February 2010, 2473; 21 February 2010, 2514; 22 February 2010, 7,200 (ballot result); 23 February 2010, 4,092; 24 February 2010, 3925; 25 February 2010, 6511 (day of the mass meeting)
"(h) From approximately 5.25 pm the local representatives at both Heathrow (Jags Kullar, Nick Robertson and Karl Timms) and Gatwick (Dominic Rothwell and Alex Hills) began posting the full ERS report on all union noticeboards (see photographs illustrating the Gatwick noticeboards) and distributing hard copies in the form of local news sheets, multiple copies of which were also placed in the news racks in the trade union offices. All local representatives were aware of the need for effective dissemination of these results and were determined to accomplish that. It is difficult to overstate how hard they worked to achieve that aim. They had begun copying large numbers of the report as soon as they received it and, within half an hour, were distributing the first 'print run'. They continued to make further copies and to replenish stocks regularly during the remainder of 22 February and over the course of the next two days (23 24 February). Multiple copies were distributed all around the crew report centres (on the top of the 'drop files', between the computer terminals used for signing in, in all the crew briefing rooms, lounges/TV rooms, etc) such that it would have been impossible for a cabin crew member coming on duty, or attending the crew report centres at the end of their duty, not to encounter them. As I have described at paragraph 13(c) above, they would then have been passed further 'down the line' especially by local representatives reporting for duty on 22 and 23 February and would have achieved effective worldwide coverage within around 24 hours. In any event, all cabin crew would certainly have seen the ERS report when they next attended the crew report centres, either at the start or end of their duty.
"(j) At 6.54 pm on 22 February, I sent a Unite press release to all Unite officials and representatives (pages 24 25). The press release confirmed, amongst other things, the number of members voting 'yes' and 'no' respectively.
"(k) At 7.41 pm on 22 February, the press release was sent to all former BASSA members who had signed up to the e mail service (pages 26 27) and, at around the same time, was placed as a news article on the BASSA.co.uk website.
"(l) On 23 February, a link was placed on the uniteba.com website (page 28) to a letter which set out the full ballot results (including spoiled papers) (pages 29 31). Of course, as I point out above, that site already had, as 'front page news' a link to the pdf of the ERS report with all these details. That letter was also sent by e mail to all former CC89 members who had signed up for the e mail service.
"(m) As indicated above, during the course of 23 and 24 February the local representatives at both Heathrow and Gatwick continued to replenish copies of the ERS report in the crew report areas and in the news racks in the union offices. By 24 February little further replenishment was needed since hardly anyone was picking up the copies that were there, presumably because by then everyone knew the detailed results and had downloaded a copy if they wanted one."
- Before considering the criticisms advanced of this process on behalf of BA, it is perhaps worth noticing that no complaint was made in the proceedingss before Mrs Justice Cox about the methods of communication used by the Union on that occasion to convey the results of the first ballot to its members, and that the same methods were used again for the second ballot. Equally no complaint was received from BA suggesting non compliance with the obligations under section 231 before the strikes which took place in March 2010, nor indeed until the letter of 13th May, when notification was received of the second set of strikes based on the ballot of which complaint is now made. Finally, some three months or so after the ballot result was made known, no member of the Union has made any complaint of any kind about the conduct of the ballot, or the dissemination of the results. For this purpose I attach no weight to the evidence gathered by BA and handed in at the end of the hearing the day before yesterday.
- On analysis the complaints advanced against the process by Mr Reade QC take two forms.
- First, it is contended that with the exception of copies of the full result handed out in crew room centres, none of the steps taken by the Union constituted active communication to the members. That, of course, is an echo of the observations by Mrs Justice Sharp. For example, posting results on union notice boards at Heathrow and Gatwick is said not to amount to active communication in the way in which actually handing copies of the result out in crew room centres would be.
- Next, it is pointed out that there were alternative means of communication which could have been used in addition to the means actually adopted. One example was the post, another was the use of text messages, a third e mail, a fourth Twitter, and Mr Turner on behalf of the Union seeks to provide his evidence indicating why each of these was or would have been deficient. That is an argument for evidence on another day.
- The argument is reinforced by reference to the evidence which showed that the Union did use additional means of communication to convey the actual result of the ballot. For example, the press release sent out on 22 February and connected e mails reveal the extent of the support for the ballot without giving any information about the total number of votes cast, or the spoiled ballots. That is, it omitted the ingredients required by section 231. The same applies to a number of other forms of communication which focus directly on the results of the ballot in percentage terms, no doubt to enable the Union to underline how overwhelming support for the strike among its members actually was.
- These considerations gave rise to two issues. First, there was no reason why, if information about the percentage of the "yes" and "no" votes could be disseminated, the full result required by section 231 should not be distributed at the same time in the same way. That is undoubtedly true. But the question to my mind is not whether every possible means of communication was used and, if so, to its utmost effect, but whether the means of communication actually used were sufficient to inform the Union members of the result in accordance with the statutory requirements.
- Second, it is suggested that conveying the information in this limited way may have persuaded members of the Union that this did indeed constitute compliance with the statutory requirements so that they would not question the validity of the process, thus making it less likely that any member of the Union would make a complaint.
- Given the attention by most union members to issues of this nature, in the circumstances which obtained here, this is underwhelmingly persuasive. There is at present no evidence to that effect.
- Mr Reade went on to submit that with what was after all a very mobile workforce, with erratic patterns of work, the only logical conclusion to draw from events immediately after the ballot result became available was that no strategic thought was applied to how the Union would comply with its section 231 obligations in relation to the duty to take steps to inform its members of the results.
- Mr Reade provided us with a detailed written analysis of his contentions and identified the flaws, as BA were advancing them, in the processes. I do not propose to read them as part of this judgment. I have them in mind.
- It seems to me that Mr Reade has demonstrated that more could have been done by the Union, but, and this is crucial to my judgment, he has failed to persuade me that what was done was insufficient to amount to compliance with the requirements of section 231. The process was far from perfect, it could have been improved, but in my judgment it was enough.
- I have examined all the evidence. I am acutely aware of the importance to BA of the proposed strike action and of the consequences that any strike action will have. Nevertheless, in my judgment, McCombe J underestimated the strength of the Union's case that, on this particular issue, as on all the other issues relating to the ballot, it would be entitled to protection under Part V of the Act. That may have been because he appears to have adopted Mrs Justice Sharp's approach to the problem and her concerns about the absence of more positive methods of communication to union members in that case, and this led to a consequent diminution in his assessment of the importance, in this particular case, of the availability and use of websites as a means by which this union provided information to its members.
- In my judgment, if this case went to trial the high probability is that BA would establish that the section 231 process could have been better, but there is a high probability that the Union would establish that the process was sufficient. I should therefore allow the appeal.
- In view of this conclusion, it is unnecessary for me to deal with Mr Hendy QC's further submissions that such failures as might have been shown were unimportant, so minimal that in effect they should be ignored. I do not think it possible to brush aside the requirements of section 231. They are embedded in statute. They are, however, less overwhelmingly compelling than perhaps it has previously been thought. But non compliance with them, if established, matters, and would deprive the Union of the statutory protection in Part V.
- What I do, however, question is whether as a matter of principle it can be appropriate that even a complete failure to inform the Union members not the employers of the fact that an infinitesimal proportion of spoilt ballots were returned which could have had no possible bearing on the outcome of the ballot could leave the Union liable in tort for calling a strike which had the support of the vast preponderance of its members. At the risk of repetition, it does indeed seem curious to me that the employers can rely on a provision designed to protect the interests of members of the Union in order to circumvent their wishes. In the meantime, without making any comment direct or indirect on the merits or otherwise of the proposed industrial action, we must all hope for a speedy and fair resolution of this dispute. It must be resolved by negotiation. Legal processes do not constitute mediation. To the contrary, they often serve to inflame rather than to mollify the feelings of those involved as they are in this case.
- MASTER OF THE ROLLS: I gratefully adopt the summary of the facts and statutory provisions in the judgment of the Lord Chief Justice.
- The cumulative meaning and effect of sections 219(1), 219(4), 226(1)(a), 226A(2) and 231 of the 1992 Act appear, to me to be tolerably clear, as a matter of principle, albeit that the precise meaning and effect of section 231, as a matter of practice, is perhaps more difficult. So far as principle is concerned, section 219(1) impliedly acknowledges that, in the absence of statutory provisions to the contrary, a trade union would be liable for the tort of inducing breach of contract if it caused its members to cease working for an employer, in breach of their employment contracts, in furtherance of a trade dispute. It therefore excludes such a liability, but that exclusion is itself subject to section 219(4), which explains that the ensuing provisions of the 1992 Act set out the requirements which have to be complied with, failing which the exclusion does not apply, i.e. the trade union's action is "not protected".
- In summary terms, section 226(1)(a) provides that in calling for industrial action a trade union is not protected unless supported by a ballot, and section 226(2)(a)(ii) provides that there is no support by a ballot save a ballot which complies with the provisions of sections 227 to 231.
- Section 231 requires a trade union "as soon as is reasonably practicable" after the holding of the ballot "to take such steps as are reasonably necessary to ensure that all persons entitled to a vote are informed of the number of (a) votes cast in the ballot, (b) individuals answering "yes" to the question…., (c) individuals answering "no" to the question…., and (d) spoilt voting papers".
- In my judgment, these provisions are clear, and the court should proceed on the basis that they mean what they say. Unless the court is satisfied that, as soon as reasonably practicable, the trade union has taken steps which are reasonably necessary to ensure that the four pieces of information identified in section 231 (a) to (d) ("the section 231 information") are given to all persons entitled to vote then the ballot would not comply with section 231. It is, in my view, impermissible for the court to dispense with the requirement that the requisite steps are taken to provide one or more of four items of information when the legislature has said in terms that requisite steps must be taken to ensure each such item has to be provided.
- When a statute stipulates in clear terms that a specific item of information has to be given, or a specific step has to be taken, in order for a person to claim a particular benefit, then in the absence of some statutory warrant to the contrary, it is simply not open to the court to rule that the person is entitled to that benefit where the specific information has not been given, or the specific step has not been taken.
- In the present case that conclusion is reinforced by three factors. First, section 226(2)(a) is introduced by the emphatic words, "Industrial action shall be regarded as having the support of a ballot only if ..." the ensuing statutory provisions are complied with. The words I have emphasised support the notion of strict compliance.
- Secondly, section 232B (inserted by the Employment Relations Act 1999), provides that in relation to the requirement of certain sections, notably not including section 231, a failure to comply which is "accidental and on a scale which is unlikely to affect the result of the ballot" should be disregarded. This suggests that such accidental non compliance is not permitted in relation to section 231. That is not surprising. To communicate four specific numbers which have already been conclusively determined is undemanding, and either the Union will, or it will not, have taken steps which are reasonably necessary.
- Thirdly, section 226A(2C) (also inserted by the 1999 Act), which is concerned with information communicated before the ballot, refers to that information being "such as will enable the employees readily to deduce certain facts" including "the total number of employees concerned". By contrast, section 231 requires the actual numbers to be communicated.
- I accept that, at least in the view of many people, the requirements of section 231 are surprising in their strictness, in many cases it could not matter much to anyone if some or even all of the requisite information was made available, and that it is hard to understand why an employer would be interested in the question whether all employees were given the information there referred to. However, the fact that clearly expressed statutory requirements may seem unnecessarily strict on one party or rather onerous to another party is no reason for not applying them. It is only if the natural meaning of those requirements was actually absurd, or impossible to operate, that the court could justify departing from their clear meaning. It is clear that a strike is unlawful or "not protected" if section 231 is not complied with and any such unlawfulness can plainly be relied on by an employer.
- In any event, the provisions of sections 226 to 231 represent a code governing the relationship with trade unions, employees and employers in relation to all cases of industrial action, and it is a code which has been developed over the past thirty years or so, by governments of different political complexions. The court should respect that fact and not depart from the clear meaning just because in some cases parts of the code may seem rather strict or unnecessarily prescriptive.
- Accordingly, I am of the view that in order for the projected strike in this case to be lawful, Unite must have strictly complied with the requirements of section 231 and that those provisions mean what they say. It follows that the material which has to be the subject matter of the information referred to in section 231 must consist of each of the four items specified in paragraphs (a), (b), (c) and (d) thereof. It may be that a de minimis inaccuracy would not fall foul of the requirements of the section, common sense would support that view, but that has its problems in light of the wording of section 231 and section 232(B). In any event, it is unnecessary to decide that point in this case.
- That then leads to the second question of principle: what is the meaning of the expression "such steps as are reasonably necessary to ensure that all persons are informed"? The words "necessary", "ensure" and "all" are strong, indeed uncompromising, but their rigour is mitigated to some extent by the word "reasonably". The use of the words "reasonably necessary" was excoriated by Mr Justice Wynn Parry in Re Naylor Benzon Mining Company Limited  Ch 567, 575. While I have some sympathy with his view, there is little point in complaining about words which have to be construed. They have to be construed, of course, to be construed in their context.
- In the absence of any citation of authority on the point, I had formed the view that the expression meant that a trade union must do its reasonable best, bearing in mind the practical realities, to ensure that all relevant persons are informed as soon as practicable. However, in two previous cases concerned with very different issues, eminent judges have suggested that the words "reasonably necessary" in a statute carry with them the notion of what a "reasonable and prudent" person would do in the particular circumstances. See per Mr Justice Buckley in Stanford v Roberts  1 Ch 440, 444. (where the actual expression was "reasonably necessary or proper") and per the Restrictive Practices Court, which included Mr Justice Devlin and Mr Justice Upjohn, in Re Chemists' Federation Agreement  1 WLR 1192,1206.
- Of course, the meaning of words depends very much on their documentary and practical context, and that can be said to be particularly true of the rather awkward phrase "reasonably necessary". However, it seems to me that the meaning attributed to the phrase in the two earlier cases amounts to very much the same thing as that which I would have given to it and indeed which I think the Lord Chief Justice would have given to it, in the absence of those two cases.
- When assessing whether the Union has done its reasonable practicable best, or has acted reasonably and prudently, the court must take a practical view. The fact that the Union could have done more than it did, and if it had done more further people would have been informed, will not necessarily mean that section 231 is unsatisfied. However, if it was easily and obviously possible for the Union to have done something more than it did, and that would have resulted in further people being informed, then, as it appears to me, section 231 would not be satisfied. Each case will of course turn on its own facts, and practical considerations will play an important part, but it would be wrong to adopt an overindulgent approach, bearing in mind that the section stipulates that the steps taken are meant to "ensure" that "all" the relevant persons are "informed".
- As for the meaning of "informed", it does not seem to me to require much analysis, particularly given that what has to be done is not to inform but to take steps which are reasonably necessary to inform. Sending a letter by first class post to the recipient's home would normally do, at least in the absence of special circumstances. If the recipient did not open the letter he would not have been informed, but sending the letter would be a sufficient step because the Union would, at least in the absence of very special facts, be entitled to assume that people open their post. In 2010 it would, in my view, be unrealistic to treat electronic communication any differently. Indeed it would normally be faster that the post. So sending an e mail to a person's e mail address, or texting to a person's mobile telephone, would normally suffice unless, for instance, there was reason to believe that the recipient's e mail account had closed. The fact that a person with an e mail account does not look at his inbox or a person with a mobile telephone does not look at his texts seems to me to be the electronic equivalent a person not opening his letters.
- Putting the section 231 information on the union's website, or any other website, on the other hand, appears to me to be more problematical. Unless it could be shown that the persons to be informed all actually looked at the website, or habitually all look at the website, or (possibly) were under some obligation to look at the website, I consider it would, again in the absence of special facts, not be the same as communicating by e mail, text or post. It might very well be enough to post the information on the website if those persons who had to be informed were told that the information was available on the website, and they had access, in terms of hardware and software, to the website. Save in a case where it could be shown that all persons concerned frequently visited the website, a trade union would at least be at risk, in my view, of having failed to take steps which satisfy section 231 simply by putting the information on a website, unless and until the persons who had to receive the information were specifically told of this and had access to the website.
- I turn to the facts of this case. Unite contends that it satisfied section 231 by putting the information required by that section on two of its websites and by making available paper copies with the requisite information in its Union offices, in its crew room centres, and on news stands and notice boards at Heathrow and Gatwick airports.
- The evidence falls far short of showing that anything like all cabin crew members regularly access the websites, and indeed it would be surprising if they all had done so. The evidence does not suggest that the cabin crew members were told, for instance, in a letter with their ballot papers that the requisite information would be on the websites.
- I accept that virtually all, maybe literally all, the cabin crew have and enjoy regular access to the internet, not least because that appears to be necessary for their work. But that does not mean that they frequently, or ever, visit the websites.
- I also accept that many of the cabin crew members probably accessed the websites at the time that the result of the vote was announced, but many would have not needed to have done so as the result was covered widely in the media as soon as it was announced. The Union's press conference did not vouchsafe all the section 231 information, and, while we were not told whether the media gave all that information, it seems very unlikely that they did.
- Mr Turner, the National Secretary (Civil Air Transport) of Unite, states in his evidence that the use of the websites was seen by the Union as the most, indeed the only, reliable means of communicating with the cabin crew members. That plainly does not mean that all such members would have accessed the websites soon, or even at all, after the ballot result and section 231 information were posted there.
- He also says that every cabin crew member would have known that the result of the ballot would be on the websites. But if they learned of the outcome of the ballot from another source, cabin crew members would have been unlikely to have accessed the websites to discover the outcome, as they knew it, and, unless the other source gave all the section 231 information, the knowledge that the outcome could be found on the websites would have been of no significance.
- It is a circular argument to say that if the cabin crew members knew that the result would be on the websites that is enough to satisfy section 231 because they had the means of getting all that information. There is no evidence to suggest that the cabin crew members knew that they had the right to be informed of the section 231 information or that that information would be on the websites. So, if, as is very clearly the case, many, I strongly suspect the great majority of cabin crew members knew of the result of the ballot from another source, broadcasts, news, texts, e mails, for example, they would have had no apparent reason to access the websites for that information.
- As for the information at the two airports, BA's evidence is that less than a quarter, probably around a fifth, of the totality of its cabin crew employees were at Heathrow and Gatwick airports during any one week in February 2010.
- Furthermore, it is significant, both in relation to the section 231 information being on the website and its being at the airports, that about half the cabin crew work part time - just under 4,000 work three weeks out of four, and just over 2,000 work one month out of two. This would mean that in any one week, around 2,000 of the Union's cabin crew members were not working, and, in any one month, around 1,000 were not working. Those members, therefore, had no work related reason to go on to the internet, or to go to the airports, or to talk to colleagues. (In any event one doubts whether conversations with colleagues would have revealed all the section 231 information).
- Now none of this is necessarily fatal to the Union's case. The various means of communication on which Unite relies have to be measured against what a reasonable, prudent union in the position of Unite could reasonably have been expected to do, bearing in mind the requirements of section 231. It is here, on the facts, that, albeit with some reluctance, I part company with the Lord Chief Justice.
- Most obviously, there is absolutely no reason why Unite could not have communicated all the section 231 information by e-mail and text to all those cabin crew members who had signed up for the Union's e mail or text service. I say "most obviously" because Unite actually sent the result of the ballot to all such cabin crew members by e mail and text even before they posted the requisite information on the websites.
- However, Unite failed to include in those e mails or text messages any of the information required by section 231. Instead the Union gave the percentages of "yes" and "no" votes. The Union also sent Twitter messages to some cabin crew members, but those messages failed to comply with section 231 in the same way. As Mr Reade said, it is not merely that the e mails and texts could have contained the requisite information, it is also that by giving the percentages for the "yes" and "no" votes by e mail, text and Twitter, the Union would have very likely deterred many cabin crew members from accessing one of the websites to find out the result of the ballot, and thereby seeing all the section 231 information. Having learnt of the outcome from their e mails, texts or Twitter messages they may not have sought further information from the website because they may well have been told all they wanted to know.
- I accept that this shows that BA is relying on rather a dry and technical point, but, for the reasons which I have attempted to give, that does not advance Unite's argument in this case.
- The Union's evidence as to the number of cabin crew members who had signed up for e mails and text messages is not precise. The subscription for text messaging is described by Mr Turner as being "by no means universal" and he describes the e mail subscription as "similar". This suggests to me that such coverage is pretty widespread, a view heavily reinforced by the fact that a small group of members (called former CC89 members), representing some 5 per cent of total membership, is described as having "only" about 50 per cent signed up to the e mail service.
- Mr Turner also makes the point that, when abroad, cabin crew members often switch off their mobile telephones, but it is plain that many, I strongly suspect the majority, of the members would not be abroad at any one time, and that many of those who were abroad would have kept their telephones switched on at least for a time and/or would return to the UK soon.
- It is hard to explain away the point that the Union actually sent texts and e mails to all those members who subscribed to those services giving the result of the ballot some 70 minutes after it was announced, and indeed emailed again after the press conference. The percentages of "yes" and "no" votes were mentioned in the first set of e mails and texts but they contained none of the section 231 information. In the second set of e mails the numbers of "yes" and "no" votes were identified, but the emails did not include the information required by section 231(a) or (d), and there were no text messages or, as far as I can see, any Twitter messages including any of the section231 information.
- I rather doubt that BA can make any other valid point, but, my problem with Unite's case arises from the e mails and the texts, and the Twitter messages, to which I have referred. Because of them, I do not find it easy to accept that Unite will persuade a court that they took the steps which one would expect of a reasonable and prudent union, doing its reasonable and practical best, seeking to ensure that all members were informed of the section 231 information as soon as reasonably practicable. The e mail and text communications vouchsafing the result and voting percentages, without any of the section 231 information, were sent to many cabin crew members within 70 minutes of the result of the ballot being known, and some 10 to 20 minutes before the result of the ballot with all the section 231 information was posted on the websites and the documents with the section 231 information were starting to be distributed at the two airports.
- It seems to me to be a fair point that a reasonable, prudent union in the position of Unite, bearing in mind the requirements of section 231, which envisages ensuring that all members entitled to vote should be informed of the section 231 information as soon as practicable, should have included all that information in the e mails and texts. Self evidently, there was no difficulty in sending such e mails and texts as they were all actually sent – and, in the case of the e mails, sent twice. It is frankly impossible to think of any good reason why the section 231 information should not have been included in the e mails and texts, and any reasonable and prudent union would, I should have thought, have included it.
- Accordingly, unless there was good reason for believing that effectively all the recipients of the e mails and texts would have got the statutory information promptly from some other source, the conclusion must be that Unite did not, as I see it at the moment, take reasonable and prudent steps to ensure that all cabin crew members were given the section 231 information as soon as reasonably practicable.
- I do not think it is a cheap point to say that, if the Union really believed that the posting of the information on the website would communicate the result of the ballots to all its cabin crew members as soon as reasonably practicable, it is hard to understand why it sent the result of the ballot to those crew members who had signed up for texts and e mails by text and e mail. The purpose of those e mails and texts was self evidently to inform those members of the result of the ballot. If that was thought appropriate by the Union then it is hard to see, as a matter of logic, why it does not follow that given the Union's duty is to take all reasonable steps to ensure that all members are informed of the section 231 information as soon as reasonably practicable, it should have included that information in those texts and e mails.
- It seems to me very unlikely, as a matter of common sense, that virtually every recipient of the e mails and texts would have received the section 231 information from some other source. Indeed, as already explained, such recipients would have been less likely to access the websites for any information as they had been told the results and the percentages.
- But it goes a little further than that. Some very last minute and attenuated evidence in the form of a questionnaire put to some cabin crew members has been adduced by BA. It is of limited use, not least because it represents the recollections in mid May of whether and how 28 or so cabin crew were told of the ballot result in February, and some of the replies are plainly wrong, - e.g. saying that Unite told them of the result by post. Nonetheless, this evidence does provide some support for the conclusion that a significant proportion of the cabin crew members did not receive the section 231 information. Of the 28 members who replied, nine said they received no communication, seven received e mails and four received text messages, (but it is fair to say that some of those seven and four people suggest they heard from other sources too).
- In all these circumstances, in agreement with Mr Justice McCombe I do not consider that the Union has a good prospect of establishing at trial that it complied with section 231. On the contrary, I would not regard its prospects as promising. I reach this conclusion with regret, as the requirements of section 231 seem to me, at least as at present advised, to be unnecessarily prescriptive and strict, particularly insofar as they can be relied on by the employer and particularly in a case such as this. However, if my view had prevailed the Union would only have had itself to blame. Having fallen foul of the technical rules of the 1992 Act in a ballot a few months earlier, the Union might have been expected to take particular care over complying with all those rules in what was effectively a rerun of that ballot.
- It is right to add this: much has been made of the law subverting the democratically expressed views of the majority of the cabin crew, but the ultimate overarching democratic view which prevails in this country is that of the people as a whole expressed through Parliament in statutes and interpreted by the courts.
- I should like to end by joining the Lord Chief Justice in his hope that this unfortunate dispute is resolved swiftly and amicably, but for my part at least, I would dismiss this appeal.
- LADY JUSTICE SMITH: I gratefully adopt the Lord Chief Justice's exposition of the facts and the statutory framework.
- BA claims damages and an injunction against the Union alleging that the Union has wrongly induced its members to break their contracts of employment with BA by calling its cabin crew members to take part in a series of strikes, which, if they take place, will have a seriously disruptive effect on BA's business and on the convenience of the public. The Union defends the action relying on section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), contending that it has acted in the furtherance of a trade dispute and it has complied with the ballot requirements set out in Part V of the Act.
- The question to be decided in this appeal is whether the judge at first instance, Mr Justice McCombe, was right to grant an injunction restraining the Union from calling the strikes. He did so because he considered it unlikely that the Union's defence would succeed at trial. If he was right about the weakness of the Union's defence, he was plainly right to grant the injunction. The balance of convenience arising from other factors unarguably weighed in favour of preventing the strikes from taking place.
- However, if the Union's defence is likely to succeed at trial, the strikes must be allowed to go ahead. To decide otherwise would be deprive the Union's members of any effective right to withhold their labour.
- Ever since 1906 trade unions have been entitled, with impunity, to organise strikes related to trade disputes. In 1982 Parliament introduced measures designed to curb what was seen as irresponsible and undemocratic behaviour by some trade unions. Those provisions, as slightly amended, are found in Part V of the 1992 Act.
- In particular the provisions were designed to prevent wildcat strikes. That is strikes called at such short notice that employers had no warning of what was coming, had no chance to try to persuade their employees not to take part, and no chance to make contingency plans to protect their businesses during the strikes. To that end Part V contains requirements that the Union provides advance information to the employer as to its intention to hold a ballot and identifying the groups of workers who will be involved.
- Another major concern at the time of the legislation was that strike ballots often took place in a very informal way, typically in the work's carpark where everyone could see who was voting for and against the strike. There was concern that some workers were not able to take part. Others who could take part were put under pressure, at times even bullied into supporting the strike. The new provisions now found at sections 226 to 232 of the Act were designed to ensure that ballots for industrial action were secret, free and fair. In short they were designed to ensure that a ballot had democratic legitimacy.
- These provisions are quite detailed and impose considerable demands on the Union. But it seems to me important to recognise that they are not designed to prevent unions from organising strikes, or even to make it so difficult that it will be impracticable for them to do so. As Lord Justice Millett said in London Underground Limited v National Union of Railwaymen, Maritime and Transport Staff  ICR 170, at page 180:
"Parliament's object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity but to ensure that such action should have the genuine support of the members who are called upon to take part. The requirement has not been imposed for the protection of the employer or the public but for the protection of the Union's own members. It would be astonishing if a right that was first conferred by Parliament in 1906, which has been enjoyed by trade unions ever since and which is today recognised as encompassing a fundamental human right, should have been removed by Parliament by enacting a series of provisions intended to strengthen industrial democracy and governing the relations between a union and its own members."
- In the present case it is not disputed that most of the requirements of Part V relating to the conduct of the ballot have been complied with. In January 2010 the Union gave notice to BA of its intention to conduct a ballot and the number and types of worker concerned were identified as required by section 226A.
- No criticism can be made either of the way in which the ballot was conducted. The members entitled to vote received ballot papers, by post, as required. The ballot period covered four weeks so as to give the members a full opportunity to vote. This was thought necessary as cabin crews are often abroad. Electoral Reform Services was appointed as independent scrutineer. The ballot closed on 22 February and the result was declared by the scrutineer later that day. There was a large majority in favour of strike action, 7,482 "yes" votes to 1,789 "no" votes. The scrutineer provided a certificate saying that it was satisfied with the conduct of the ballot. BA was immediately informed of the results. BA has no cause to complain of the conduct of the ballot so far as its own rights and interests are concerned.
- The Union also took steps to inform its members of the result of the ballot. It is the adequacy of those steps which is in question in this appeal. Two strikes took place between 20 and 22 March and 27 and 30 March 2010 and no attempt was made to prevent them. Further strikes were then announced due to commence on 18 May. These further strikes also relied on the ballot of 22 February.
- On 18 May BA commenced proceedings by claim form seeking damages and an injunction to restrain the Union from inducing its members to take part in the proposed strikes. The claim was not particularized; it was merely said that the strikes would be unlawful because they would not be protected by section 219 of the Act.
- The witness statement of Miss Karen Louise Slinger, BA's Manager, Resource Planning for Cabin Crew, explained the basis of BA's complaint, which was that the Union had failed to comply with section 231 of the Act. Section 231 is headed "Information as to result of ballot" and provides:
"As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of
"(a) votes cast in the ballot.
"(b) individuals answering "yes" to the question ...
"(c) individuals answering "no" to the question ...
"(d) spoiled voting papers."
- Evidence was put in first by the Union explaining what steps it had taken to comply with section 231. Mr Stephen John Turner, the National Secretary (Civil Air Transport) of the Union, said that had it put all the required information on its websites and had distributed hard copy leaflets to members in crew rooms at Heathrow and Gatwick airports. Leaflets were also left in news stands and the full results were posted on notice boards at both airports. That, the Union contended, was sufficient for compliance with section 231.
- The Union also took other steps to disseminate the result of the ballot more widely; for example, by making an announcement at a press conference, issuing a press release and by sending e mails and text messages to those of its members who had provided the necessary addresses or telephone numbers.
- The information in those communications was not in the statutory form. Indeed, in some of the e mails results were given only in the form of percentages. I agree with my Lord the Master of the Rolls that it would have been quite possible for those texts and e mails to have included all four items of information.
- In the press release, which was also e mailed to some members, the "yes" and "no" votes were recorded but the number of spoiled ballot papers was not given. The number of votes cast was not expressly stated either, but could be calculated by the addition of the "yes" and "no" votes. Plainly it would have been possible for those communications to have included all four items of information.
- BA contended that the steps taken were not adequate to comply with section 231 and that as a result the whole balloting process was rendered inadequate and unlawful so that the Union could not rely on its statutory immunity from suit under section 219. The thrust of BA's criticism was that putting the information on the Union website and in the crew rooms was insufficient for at least two reasons. First it was not an active communication to members. It was passive and required the member to make the effort to go on line to look for the information. Second, that method, even when combined with leaving leaflets in the news stands and crew rooms, would not ensure that the information came to the attention of all the relevant members. That was because many of them would be abroad in different parts of the world, many of them were not on duty that week, many would not go through the crew rooms. The members would not know that they were supposed to go on line to find the results on the websites.
- As for the wider methods of communication such as the press release which did not contain the full information, dissemination of the mere result of the ballot without the full statutory information was, submitted Mr Reade, actually counterproductive of the statutory compliance because once a member knew the result of the ballot he or she might well not bother to access the full information. Mr Reade's contention was that nothing would suffice short of personal communication of the full statutory information to each and every member, either by e mail, text or letter. This was required, he said, and was not difficult to achieve.
- The Union replied explaining why it believed that the methods it had adopted were the most efficacious, given that they were dealing with a widely dispersed membership. All members were required by BA to be able to use computers. They usually kept in touch while abroad by electronic means. BA ensured that cabin crews had broadband facilities in their hotels. Experience showed that the use of the websites was the most effective means for the Union to keep in touch with its members and it produced figures to show that the website had received a large number of hits on 22 and 23 February.
- My Lord the Lord Chief Justice has referred in detail in his judgment to the evidence relied upon by the Union and I will not repeat that.
- The Union also submitted that section 231 was designed to protect the membership, not the employer. No member had complained that he or she had not received the information required. Before Mr Justice McCombe there was no evidence that any Union member had not in fact received the information. Before us, BA put in evidence derived from a small survey of cabin crew workers which it had conducted during the morning of 18th May shortly before the appeal to this court began.
- The questionnaire asked workers whether they had received any communication about the result of the strike ballot directly from the Union. If they had, what was its format and what was the content? Bearing in mind that this questionnaire was issued some three months after the ballot, it is perhaps not surprising that the responses were extremely vague and of little use. For example, one respondent said that she had received communications by letter and e mail and could not remember the content as it was too long ago. In fact, he or she could not have been right about receiving the result by letter as no letters were sent. I will say no more about this survey; it seems to me to take matters no further. It remains the position that there is no evidence that any member of the Union entitled to receive the information did not receive it.
- In considering whether the steps taken by the Union were sufficient to comply with section 231, it is necessary first to consider what as a matter of law the section means and what duty of communication it imposes on the Union. The section is not well drafted in my view. It requires the Union to take such steps as are reasonably necessary to ensure that all persons entitled to vote are informed of the full figures. The first problem is that the expression "reasonably necessary" is not clear in its meaning. In Re Naylor Benzon Mining Company Limited  1 Chancery 567 at 575, Mr Justice Wynn Parry said this:
"The words 'reasonably necessary' used as a phrase in which the adverb is designed to qualify the adjective are meaningless. A thing is necessary or it is not necessary. It may be regarded as necessary in one context and not in another, but the context cannot be provided by merely preceding the word 'necessary' with an adverb such as 'reasonably'."
- I would be inclined to agree with that. If it were not for other authority I would have observed that Parliament had held back from requiring the Union to do everything necessary to ensure that all persons entitled to vote were informed. In so holding back it had plainly intended to impose a lesser burden on the Union than that strict requirement, but that it was not clear how much lighter a burden it had intended to impose.
- However, the matter is not free from authority as my Lord the Master of the Rolls discovered last night when burning the midnight oil. He has referred the court to the cases of Stanford v Roberts and the Chemists' Federation case, where the courts have construed the requirement to do what is reasonably necessary as a requirement to do what a reasonable and prudent person would think necessary in the circumstances. I will adopt that approach.
- The second problem of construction is to decide what Parliament intended by the word "informed". Did Parliament intend, as Mr Reade asserted, that the Union had to send a personal communication to each entitled member, or is it sufficient if the Union makes the information available by such means as enable every member to access it if he or she wishes to do so?
- I am inclined to think that Parliament did not intend that there must be a personal communication. If it had, one might have expected a specific requirement to send the information by post, which was, of course, the only common mode of written communication at the time that these provisions came into force. A communication by post is required for the distribution of the ballot papers.
- The language of the two subsections imposing those two different requirements is quite different. Section 230(2)(a) requires that so far as is reasonably practicable every person entitled to vote must have a voting paper sent to him at his home address or at such other address which he has requested the Union, in writing, to treat as his postal address. That provision is at the heart of the balloting requirements and is obviously very important. The detailed requirement of communication reflects that centrality. In contrast, the wording of section 231 is much less specific. Members are not referred to individually but collectively.
- I can see good reason why Union members must readily be able to find out the result of the ballot but I cannot see any policy reason why a personal communication should be thought necessary, provided that the information is readily accessible.
- It seems to me, looking at the section in the context of the ballot provisions as a whole, that Parliament intended to require the Union to disseminate the statutory information in such a way as would enable every entitled member to access it easily if he or she wished to do so.
- I am fortified in my view of the true construction of the section by the provisions of section 232B. This is headed "Small accidental failures to be disregarded". It provides that if in relation to a ballot there are failures to comply with one or more of certain of the ballot provisions, those failures are to be disregarded so long as they are accidental and, taken together, are on a scale which is unlikely to affect the result of the ballot.
- The requirements covered by this provision all relate to the conduct of the ballot itself. They include a member's entitlement to take part in the ballot, the right to receive a ballot paper by post and to have a convenient opportunity to vote by post. Section 231 is not included. Mr Reade submitted that that meant that the requirements of the section, 231, were strict; infringements could not be overlooked or disregarded. I do not agree. The policy of this part of the Act is that the ballot should be properly conducted, but that if inconsequential mistakes are made, they can be disregarded. If mistakes relating to the ballot itself, the central aspect of the process, can be disregarded, it cannot be intended that the provision of information about the result, which on any view is a less important part of the process, should be regarded as imposing a strict requirement.
- I am also of the view that in this day and age it is reasonable for a union to use electronic means of communication rather than the post. I think it is sufficient for a union to disseminate information by its website if it knows that it is dealing with members who are computer literate and have access to the computer and to the internet. As explained by Mr Turner, this Union knew that its cabin crew members were required to use computers in their employment and had access to the internet when out of the country. In 2010 it seems to me not unreasonable to assume that they will also have access at home.
- The view I have expressed as to the meaning of the section 231 requirement is not consistent with the view expressed by Mrs Justice Sharpe in Network Rail Infrastructure Limited v National Union of Rail, Maritime and Transport Workers  EWHC 1084 (QB).
- At paragraphs 69 to 71 Mrs Justice Sharpe considered the adequacy of the steps taken by the union to comply with section 231 where it had sent text messages to its members advising them of a majority in favour of strike action and had referred them to the Union website for the full results. Mrs Justice Sharpe thought that, for policy reasons, section 231 required a more active approach to the provision of information. She did not elaborate upon what those policy reasons were. Mr Reade relied upon her view in his submissions to us.
- With respect to Mrs Justice Sharpe, I cannot agree with her conclusion. As I have already said, I cannot detect any good policy reason why the duty to inform members can only be satisfied by a personal communication. I consider that the duty can be satisfied if the results are easily accessible to them if they want them.
- In his short ex tempore judgment delivered late on Monday evening, Mr Justice McCombe did not consider the meaning and scope of section 231 in the way that this court has done. He seems to have assumed that it imposed a strict requirement to communicate directly with every Union member and thought it likely that the Union would fail to show compliance.
- Having taken the view that the requirements of section 231 are not as strict as the judge thought, it seems to me probable that if and when the evidence has been tested in cross examination, the judge at trial would hold that the Union had done what a reasonable and prudent person would have thought necessary by posting the full information on its website and distributing leaflets in the ways that it did.
- I therefore take a different view from that of Mr Justice McCombe. I accept that it would have been possible for the Union to have done more, but I do not think that the law required more of it.
- In case I am wrong about that I will deal, briefly, with the other argument advanced by Mr John Hendy QC for the Union. That was that, even if there was not proper compliance with the section, there had been substantial compliance. The failures were de minimis, or unimportant. If there were shortcomings, they amounted to a failure to include the complete information in the press release, in effect omitting the number of spoiled ballot papers, and a failure to include the statutory information in the e mails and text messages. But, he submitted, those failures should not result in the thwarting of the democratically expressed wish of the Union members.
- He pointed out that the February 2010 ballot was the second occasion within the present trade dispute on which the cabin crew members had voted in favour of strike action by a large margin. The first occasion had been in December 2009. He reiterated the point that the provision was intended to protect the members, not the employer. No member had said that he or she had not received the information. The employer had received all the information it was entitled to. It would be a travesty of the democratic process and would seriously undermine the members' right to strike if the employer could obtain an injunction for a minor infringement of the duty to communicate the results.
- Mr Reade submitted that the failures were not minor. However, I have already rejected his submission that the section requires a personal direct communication to every member.
- I would accept Mr Hendy's submission that, if there were failures, they were not of a serious nature. If the Union did not comply completely with section 231 it appears to me very likely that the judge at trial would hold that there had been substantial compliance.
- Is "substantial compliance" sufficient? Section 226(2)(a)(ii) provides that industrial action shall be regarded as having the support of a ballot if the various conditions are satisfied. One of the conditions is that the requirements of section 231 are satisfied. So, section 231 is a condition precedent to the validity of the balloting process.
- However, I have already said that the section requires the Union only to take such steps as a reasonable and prudent person would consider necessary to ensure that the information reached those entitled. I have already noted that minor and inconsequential infringements of the balloting requirements can be disregarded. I cannot believe that Parliament was content to disregard minor accidental infringements of the balloting provisions and yet intend that minor and inconsequential infringements of section 231 should have the effect of invalidating the ballot.
- I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot.
- I can see that if there is an infringement which affects some aspect of those important policy requirements, the ballot must be held invalid. But in my view it cannot have been Parliament's intention to allow a minor infringement which has had no adverse effect on anyone's rights or interests to invalidate the ballot. In my view substantial compliance with section 231 will satisfy section 226(a)(ii). If it were not so, the rights of workers to withhold their labour would be seriously undermined.
- In my view the cabin crew members of Unite have expressed a clear view in a fair and open ballot conducted in February 2010. I consider that it is likely that a judge at trial would hold that the Union had complied with section 231; alternatively, I consider it highly likely that he would hold that the Union had at least substantially complied with that section.
- Accordingly, I would allow the appeal and discharge the injunction.
Published: 18/06/2010 10:38