Network Rail Infrastructure Ltd v National Union of Rail, Maritime and Transport Workers [2010] EWHC 1084 (QB)

Application for interim injunction to prevent strike action on the grounds that the defendant's statutory notifications were insufficient, the ballot constituency was not properly established and the union did not provide a prompt notification of the result to its members. An injunction was granted.

The Union had issued a Ballot Notice in February 2010 and balloted 4556 members in March, with 3199 members voting, 1705 in favour.  On 24 March, Network Rail wrote to the union challenging the lawfulness of the ballot but notice of strike action was received by them on 30 March, together with the union's response to the challenges. Talks at ACAS did not resolve the dispute so Network Rail initiated these proceedings on the grounds that: i) the statutory notifications did not contain the required information; ii) the union had not properly established the constituency of the ballot and ; iii) the members were not given prompt notification of the result.

In this judgment, Sharp J outlines the legal principles governing the granting of injunctions in such circumstances, reviews the relevant provisions of TULRA and examines the evidence presented. She concludes on ground i) it was likely that the notices would be found defective partly because, among other issues, errors concerning the number of workplaces involved had been highlighted in previous ballots and had not been corrected, even though the information was available from Network Rail and could easily be checked. On ground ii), errors in not providing ballot papers to some members were not insignificant and so the statutory requirements for a defence had not been satisfied. On ground iii)  the actions of the union in disseminating the results by text and a website did not seem to meet the requirements of s231 as that section requires "active steps" to be taken.

Neutral Citation Number: [2010] EWHC 1084 (QB)**IN THE HIGH COURT OF JUSTICE****QUEEN'S BENCH DIVISION**Royal Courts of JusticeStrand, London, WC2A 2LLDate: 01/04/2010





**- and -


Mr. Charles Béar Qc And Mr. Paul Gott (instructed by Bircham Dyson Bell) for the Claimant

Mr. Frederic Reynold Qc And Mr. Oliver Segal (instructed by Thompsons) for the Defendant

Approved Judgment

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  1. This is an application by the Claimant, Network Rail, for an interim injunction to prevent strike action being called by the Defendant trade union, the National Union of Rail, Maritime and Transport Workers on the ground that the strike action is unlawful. There was a hearing yesterday afternoon before Flaux J who adjourned the matter to today to give the Union (the RMT) the opportunity to serve evidence. This was served on Network Rail last night and has been put before me this morning, together with further evidence in the form of a witness statement which was formulated during the course of the hearing today.
  1. The strike action proposed is a national strike of signallers on Tuesday, 6 April 2010 to Friday, 9 April 2010 inclusive. It has been called pursuant to a strike notice served on 30 March 2010, that is two days ago. It is said by Network Rail, and not disputed by the RMT, that the strike will have the effect of preventing about 80 per cent of all rail services in the United Kingdom from running. This in turn will cause immense damage to the economy, to businesses depending on rail for freight and/or transport, to commuting workers and to a great many individual rail users.
  1. None of these consequences, it is said by Network Rail, can be met by an award for damages which in any case is statutorily limited against a trade union of up to 100,000 members to £125,000 in any proceedings (see the Trade Union and Labour Relations Act 1992 (TULRA), section 22). That applies here as the RMT has 80,000 members.
  1. It is said therefore by Mr. Béar QC, who appears for Network Rail, that the balance of convenience is overwhelmingly in favour of granting the injunction if it can establish a case of sufficient arguability. Regardless of the precise interlocutory test it is said that Network Rail is clearly able to establish that the proposed strike would be unlawful and therefore an interim injunction preventing the strike should be granted.
  1. I have come to the conclusion today that the interim injunction should be granted. There is clear and convincing evidence, in my judgment, that the RMT would be unlikely to establish a statutory defence under the relevant legislation if this matter went to trial.
  1. The time constraints are such that I give my reasons now.
  1. The general background leading to this application is set out in the witness statement of Mr. Paul MacFarlane. Mr. MacFarlane is the Head of Human Resources, Operations and Customer Services for Network Rail.
  1. Notice of the ballot for strike action conducted by the RMT (the Ballot Notice) was provided to Network Rail by a letter sent by fax dated 25 February 2010. The Ballot Notice (a) listed categories of staff who would be balloted and (b) enclosed a schedule of workplaces at which it was said members were to be balloted.
  1. The Ballot Notice states that the strike action has been called because of a trade dispute concerning three matters: (a) the imposition of rosters; (b) the operation of Promotion, Transfer, Redundancy and Resettlement agreements concluded between Network Rail and the RMT; and (c) Network Rail's proposals towards members taking and protecting possession of the track (under a set of rules known as T3) to allow maintenance and renewal work to be conducted on the track.
  1. RMT balloted a total of 4556 employees employed within Network Rail's operations functions. These are the operators or managers of Network Rail signal systems and associated operations (the Signallers). The RMT says safety considerations are behind the strike action. Network Rail disputes this and says it is satisfied that none of its proposals will have any effect on safety - indeed the Signallers are not subject to any proposal for staff reductions.
  1. On 19 March 2010 the ballot was closed and RMT notified Network Rail of the ballot result by fax. The vote was a close one. Of the 4556 members stated by the RMT to have been the voting constituency, the result was as follows: (a) total votes cast, 3199; (b) total voting yes, 1705; (c) total voting no, 1481; (d) spoilt papers, 13. There was therefore a majority of 224 votes out of 4556 balloted, so that 113 votes cast differently would have altered the outcome.
  1. On 24 March 2010 Peter Bennett, Network Rail's Director of Human Resources, sent a letter of the same date to Bob Crow (the General Secretary of the RMT) which contained detailed grounds of challenge to the lawfulness of any strike action (the 24 March letter). On 29 March 2010 Network Rail sent by hand detailed material which it said supported its detailed grounds of challenge, though by then the RMT had not challenged any of the factual complaints made in the 24 March letter.
  1. On the afternoon of 30 March 2010 Network Rail received notification of strike action (the Strike Notice) from the RMT. On the same day it also received a response to the 24 March letter (the 30 March Response Letter). It is said by Network Rail that the Strike Notice repeated a large number of the errors it had highlighted in the 24 March letter, but corrected others. It is also said these corrections are significant for two reasons: first, because it is to be inferred that the corrections were made as a result of the errors being drawn to the attention of the RMT by Network Rail and, second, because the only material Network Rail relied on for this purpose was that which was already in the hands of the RMT. This in turn is significant when consideration is given to whether the information provided to Network Rail by the RMT was as accurate as reasonably practicable.
  1. As has been widely reported, intensive efforts have been made to try and settle this dispute, most recently under the auspices of ACAS. The talks continued to 30 March 2010, but have (self-evidently) failed to produce any agreement.
**The basic legal framework

**15. The basic legal framework for this application is this. Strikes at common law are a breach of contract by the individual employee. To call a strike therefore is a tort - inducing breach with of contract. The tort however is immune from legal action provided various conditions set out in part V of TULRA are satisfied. (References hereafter to the relevant statutory provisions are to TULRA). If those conditions are not satisfied then strike action is unlawful, regardless of what might be described as the underlying merits of the industrial dispute between the parties. For this reason it is no part of my task to consider or address those merits in this judgment. Neither side has invited me to do so and I do not.

  1. Both sides have drawn my attention to a recent decision of the Court of Appeal: Metrobus Limited v Unite [2009] EWCA Civ 829 [2010] IPR 173. In Metrobus the Court of Appeal identified what has been described as the policy considerations which underlie the relevant provisions in TULRA. If there is a trade dispute these provisions have within them restrictions aimed at ensuring democratic validity and a fair balance between employers and employees, the latter of which involves notification requirements imposed on the union. It is important to note that Metrobus establishes these requirements are proportionate and compliant with the European Convention on Human Rights. Reference in this context should be made to what is said by Lloyd LJ in the leading judgment in Metrobus at [53], [56] [104] and [113].
  1. As was made clear in Metrobus, consideration was given at one time by Parliament to the introduction of a broad statutory dispensing power for failure to comply with the notification requirements. But at present, the dispensing power is confined to provisions relating expressly to the conduct of the ballot under section 232B. No such power exists in relation to obligations relating to the content of the ballot notice or strike notice itself.
  1. Although some parts of his skeleton argument might have suggested otherwise, Mr. Reynold QC, who appears on behalf of the RMT, made it clear during the course of his submissions that there is in reality no difference between the parties as to the principled policy which underlies the legislation and the statutory provisions which are in play.
  1. The specific provisions which are relevant here are those contained in section 219(4), 226(1), 226A, 227, 228A, 231 and 234A. I will not set them out but they may be taken as read into this judgment,
  1. It is sufficient for present purposes to say this:

(1) Section 219(4) provides that industrial action including strike action is protected from suit if, among other things, it complies with section 226. Section 226 serves as the gateway provision to a number of pre conditions which are aimed at ensuring the democratic validity of the strike and at achieving fair play between the unions and employer by setting rules for advance notification of a ballot (as indicated in Metrobus).

(2) Section 226(1)(a) requires that the strike action must have the support of a ballot which section 226(2)(a)(ii) further defines as including the requirements of sections 227 to 231. These include requirements to define the ballot constituency and of prompt notification of the results to members.

(3) Section 226(1) (b) requires compliance with section 226A. Section 226A imposes duties of notification of the ballot. In particular, and importantly for present purposes, these duties require an accurate breakdown of the union members they have balloted since in many cases, as here, the employer will not know itself, of those of its relevant workers who are union members.

(4) Section 219(4) also requires compliance with section 234A which imposes similar duties of notification for the strike itself, once a positive ballot result has been obtained.

**The Grounds for the Application**
  1. I turn now to the specific grounds of the application. These have been summarised in Mr. Béar's written argument under three broad headings:

(1) The statutory notifications do not contain the required information. This involves consideration of section 226A and 234A. Network Rail contends the RMT fell short in a significant number of respects.

(2) The RMT did not properly establish the constituency for the ballot. This involves consideration of sections 227 and 228A. Network Rail again contends the RMT failed to meet a number of these conditions.

(3) The RMT did not give the required prompt notification of the ballot result to its members. This involves consideration of section 231.

  1. I shall deal with each ground in turn.
**(1) The statutory notifications do not contain the required information.**
  1. A number of separate objections are made under this heading: (a) first that the breakdown in the Ballot Notice was seriously inaccurate; (b) second, that the breakdown was not as accurate as reasonably practicable; (c) third, the Strike Notice was not as accurate as reasonably practicable - and it is said that there are no possible grounds for the court to exercise a dispensing power in relation to such matters, even if such a power exists (as I understand it, it is not contended by either side that it does); and (d) fourth, no valid explanation has been given of RMT's figures.

(a) Breakdown in the Ballot Notice was seriously inaccurate

  1. A condition of a statutory protection is that a union must provide the employer with a detailed and accurate breakdown of proposed strikers:

(1) in its ballot notice to the employer, a union must identify the categories of employee and the workplaces concerned, and must provide figures for members to be balloted in each category and each workplace: section 226A(2)(c), (2A) and (2B);

(2) In addition, section 226A (2D) requires the figures provided to the employer in the ballot notice must be: "as accurate as reasonably practicable in the light of the information in the possession of a union".

(3) Section 234A imposes corresponding duties for the strike notification: subsections 3(a) (i), (3A), (3B) and (3D).

  1. Network Rail says that the RMT failed to give it an accurate breakdown in its Ballot Notice. In summary these inaccuracies are identified as follows: (1) 23 omitted workplaces; (2) 11 non existent workplaces; (3) 12 workplaces where there are believed to be no present RMT members; (4) ambiguous references (an example given is 'Cardiff', where there are numerous workplaces - a matter to which I shall return in more detail in due course); (5) the ballot notice identified 29 signallers to be balloted as having an "Unknown". workplace; (6) 67 workplaces were balloted where there were more members shown than Network Rail employees.
  1. Apart from the matter of the ambiguous references to which I have referred, the errors identified by Network Rail have not been seriously disputed in evidence before me by the RMT. Mr. Béar submits in the circumstances there were errors in relation to at least 114 out of the 851 workplaces listed by the RMT, if one includes in that figure the workplaces which were omitted by the RMT. In addition, he submits account has to be taken of the unassigned group of 29 members. Potentially therefore it is said a further 29 workplaces were affected, and therefore up to 143 in total. So it is said there was inaccurate information given for between (and these are Mr. Béar's percentages not mine) 13.4% to 16.8% of the workplaces for which information was given.

(b)Was the Breakdown in the Ballot Notice as accurate as reasonably practicable?

  1. The next question which arises is whether, notwithstanding these inaccuracies, the Ballot Notice was "as accurate as reasonably practicable" in the light of the information in the possession of the Union: see section 226A (2D).
  1. It is this issue which has lain at the heart of the submissions argued before me today.
  1. Mr. Béar submits the answer to this section can itself be obtained by considering three further questions: (1) is there any explanation for the errors? (2) did the RMT take account of information available from the employer, itself, in particular information which Network Rail had provided in 2004 and 2008 about inaccuracies in earlier trade disputes which have been "carried forward"; and (3) did the RMT generally take reasonable steps to compile the information which generated its notification to the employer of 25 February 2010?
  1. What is said on behalf of the RMT is that considerable efforts have been made over a period of many weeks prior to the issue of the Ballot Notice to ensure that it complied with the relevant statutory obligations. These efforts are described in detail in the evidence put before me today. Mr. Reynold submits that the real dispute on this application is, or ought to be, simply whether those efforts were insufficient; or more precisely whether they were not all that, in the material circumstances, were "reasonably practicable" for the Defendant to have made in order to provide accurate information to Network Rail. In this context, he says the obligation had been characterised by the Court of Appeal as "what might be called a reasonable endeavours process": Metrobus [111].
  1. I should refer at this stage to some of the evidence which has been produced on behalf of the RMT. This is contained in the witness statements of Mr. Tilley who is one of the Regional Organisers for the RMT, of Mr. Murza, who is the Industrial Relations Officer for the RMT and of Mr. Crow.
  1. The process is described in most detail in the witness statement of Mr. Murza. As I may have already mentioned, because of a specific factual dispute in relation to a document which arose during the course of the hearing, a further witness statement was prepared by Mr Murza in the course of the hearing itself (Mr. Murza's second witness statement).
  1. Mr. Murza says that in 2010 he was instructed by the General Grades Committee of the RMT that there was a possibility that the Union would be balloting its members in the relevant signaller grades. He was asked to take appropriate steps to organise a lawful ballot and to ensure that all information the RMT were required to give under the legislation was as accurate as reasonably practicable. He says in paragraph 4 of his first witness statement he wishes to stress that this was a significant task.
  1. By the time the Union was ready to send a notice of its ballot he had identified it needed to ballot 4556 members nationwide. Essentially the Union needed to check that the details with respect to each and every one of the individuals was correct in terms of their job category and workplace. He exhibits to his first witness statement an e mail which was sent on 13th January 2010 which although addressed to a Mr David Ling appears to have been for wide circulation. It says this:

"Dear colleagues, as you may be aware, we have been instructed by the GGC to begin preparations for a national ballot for strike action on Network Rail Operations. In order to comply with our latest legal advice we urgently need to do a root and branch audit of the membership paying particular attention to grade and location. Our records need some considerable updating so your urgent assistance would be appreciated.

Please find attached membership lists broken down by region. This has been done manually and there may be some crossover between the regions ...

Where possible we need to put down specific signal boxes as the workplace locations for members. We need to do this as in previous national ballots Network Rail have challenged us on the basis that some of the workplaces in our lists it cannot be set of (sic) premises as the law requires. For example we have North East and even Trent on our membership list. On top of this some of the locations we have no longer exist as they have either been closed or in one case burnt down ...

All members in your area should come under one of the above headings and I would appreciate if you could ensure our reps are aware of this as well as the important point regarding the workplace location".

  1. In his first witness statement at paragraph 7 Mr. Murza also says that another step he took at an early stage was to review the previous two challenges that Network Rail had made to an RMT ballot notice in 2004 and 2008:

"Having reviewed the letter of challenge in 2008 I removed a number of generic descriptions which had been given to workplaces and sought detail as to the specific premises the member in question worked from. I also checked those premises from where it was alleged that the union had balloted more members than individuals who were employed there".

  1. He goes on to refer in particular to one document which he received from Mr. Tilley; and indeed Mr. Tilley's evidence sets out how he obtained this document which Mr. Murza says assisted him with updating the membership records.
  1. Mr. Tilley says in paragraph 8 of his witness statement that in Christmas 2009 his laptop computer broke down and he was unable to access his stored files of job evaluation scores, relevant to one of his functions as a member of the job evaluation appeals panel of Network Rail.
  1. In January 2010 therefore he asked an employee of Network Rail to send the most up to date spreadsheet setting out the job evaluation scores. This document was sent to him in January 2010. The job evaluation spreadsheet's purpose is to assist (as is probably obvious) in the job evaluation of employees of Network Rail. This was the document which Mr. Tilley e mailed to Mr. Ling. Mr. Tilley says this:

"It is important for the information contained in the spreadsheet to be up to date and accurate so that precise comparisons can be made when determining job evaluation appeals".

  1. The spreadsheet document was sent to Mr. Ling; and it was then sent on to Mr. Murza. It was a document to which he attached considerable significance. What he says is this:

"As a result of obtaining all the relevant locations for employees who worked in the job categories the RMT was seeking to ballot. Through this document, I was able to embark on a cross referring exercise with our own database.

I made a lot of amendments of the database as a result of receiving this documentation".

  1. It is unnecessary for the purposes of this judgment to set out more detail from Mr. Murza's first witness statement, but reference should be made to what he says are the steps he took in relation to the specific issues which have been raised by Network Rail about the accuracy of information contained in the relevant Ballot Notice.
  1. What is said on behalf of Network Rail by Mr. Béar is this. It is manifest from the content of the Ballot Notice, despite the fact that in 2004 and indeed in 2008 errors and omissions were drawn to the attention of the RMT, that the RMT did not make use of the information which it had arising from those previous (and similar criticisms) which had been made, when drawing up its database for this ballot.
  1. At this stage I should refer to the specific points that are made about this matter by Mr. MacFarlane in his first witness statement at paragraphs 27, 28 and 52 56:

"27. …in providing the lists and figures in the Ballot Notice the RMT was obliged to take into account all the documents in its possession, whatever the origin. As I explain below, the Ballot Notice contains a significant number of defects which had been raised by Network Rail in writing with the RMT in past industrial disputes in 2004 and 2008. Specifically:

(a) In June 2004 Network Rail prepared a similar application to restrain the RMT from calling strike action following its failure to comply with the requirements of Section 226A of the 1992 Act and which led to Network Rail serving on the RMT a witness statement dated 23 June 2004 made by David Ralph, an Employee Relations Specialist at Network Rail, which set out the defects in the ballot notice. Although the statement of Mr. Ralph and its exhibits were served on the RMT in 2004, the Court did not hear the application of Network Rail, because the RMT withdrew the threat of strike action before the hearing took place.

(b) A further ballot for industrial action of Operations grades members was conducted by the RMT in May 2008, the notice of which also contained defects which were highlighted in a letter sent to Mr. Crow of the RMT by Peter Bennett, (pages 740 748) on 21 May 2008. Amongst other things, this letter enclosed a further copy of Mr. Ralph's statement for the attention of the RMT. Mr. Bennett pointed out that a significant number of the errors in the 2004 ballot notification (and which Mr. Ralph had pointed out in his 2004 statement) were repeated in the 2008 ballot notification. The 2008 ballot was not the subject of any Court hearing because the 2008 Signallers' ballot was against strike action.

  1. Notwithstanding the errors of 2004, and the repeated/further errors of 2008, it is apparent that the Ballot Notice contains numerous defects which are repeated from the ballot notices served by the RMT in 2004 and May 2008, about which the RMT has at all times had information in the form of Mr. Ralph's witness statement (and exhibits) and the letter from Peter Bennett….
  1. The Ballot Notice provides the purported number of members being balloted at each workplace, in accordance with Section 226A of the 1992 Act. As with the workplace description, these figures must be as accurate as is reasonably practicable in the light of the information in the possession of the union when the ballot notification was sent.
  1. Once again this obligation has manifestly not been complied with by the RMT. The numbers of those being balloted exceeds the numbers of staff in relevant grades employed by Network Rail at the following 67 workplaces:

Abercynon; Aberthaw; Ashington; Barnsley; Barrhead; Barry; Basford Hall; Bedlington North; Brockenhurst; Carleton; Chester; Clapham; Craven Arms SB; Crewe; Doncaster PSB; Dumfries; Dunbar; Dundee; Eastleigh; Falkirk East Area; Farncombe; Ferrybridge; Furness Vale; Gainsborough; Halton Junction; Harrogate; Haydon Bridge; Hexham SB; Holton Le Moor; Hull Paragon; Kingswinford; Kirkham; Lewes; Lichfield; Manchester Piccadilly SC; Marchey's House; Montrose North; Newlands East; Newsham; North Carr Crossing; Norton Junction; Newhaven Town; Oddingley; Poole; Plymouth; Pulbrough; Redcar; St. Helens; Salop Goods; Saxilby; Selby Swing Bridge; Selby West; Southend; South Tottenham; Stirling; Stockport; Taunton; Urlay Nook; Vitriol Junction; Wareham; West of Scotland Signalling Centre; Wimbledon; Woodhouse; Worcester Tunnel; Worksop; Wymondham and York IECC.

  1. Of these 67 locations:

(a) 20 were identified on the same basis (i.e., that they contained more voting members than employees of Network Rail) in Mr. Bennett's letter of 21 May 2008. This included Chester, Dumfries, Harrogate, Lincoln, St. Helens and Stockport;

(b) 5 (Chester, Dumfries, Harrogate, St. Helens and Stockport) were identified on the same basis in Mr. Ralph's 2004 statement.

  1. The RMT has been repeatedly told about these errors, in documents which were manifestly in its possession or control at the date the Ballot Notice was sent; but has nonetheless made precisely the same errors. These workplaces account for 173 votes which should not have been cast in the ballot. Further, the contrast in the number of members purportedly being balloted against the number of employees is very pronounced at a number of the workplaces, for example:

(a) Crewe where Network Rail employs 24 members of staff; but the RMT has balloted 33; and

(b) South Tottenham where Network Rail only employs 3 members of staff and yet the RMT has balloted 11.

  1. The Ballot Notice cannot be regarded 'as accurate as is reasonably practicable', as required by Section 226A of the 1992 Act in the light of these defects and the fact that the RMT was aware of many of them from the witness statement of Mr. Ralph of June 2004 and the 21 May 2008 letter from Mr. Bennett. This being the case, the purported ballot is defective for failure to comply with Section 226A and any industrial action called on the strength of the Ballot would be unlawful."
  1. Mr. Béar says notwithstanding the errors pointed out in 2004 and 2008, the 2010 Ballot Notice contains some of the identical errors (namely those identified by Mr. MacFarlane) as had been pointed out to the RMT on two previous occasions; and, significantly, in an identical context. He submits what is "reasonably practicable" depends on context. He submits that if the RMT is planning a national strike, the effect of which will bring 80 per cent of the rail network to a standstill (with the enormously detrimental effects that have been referred to) it is, at the very least, "reasonably practicable" for the RMT to go back to two self contained documents which it already had in its hands to see if the errors which were drawn to its attention on the previous occasion still persist today.
  1. He submits that it is not sufficient in this context for the RMT to refer, as it has done, to the other steps it has taken; or indeed to the difficulties of which it was well aware at the date upon which it started the exercise of checking, in January 2010. He says it is quite clear, as can be seen from the e mail from Mr. Murza to which I have referred, that the RMT knew itself there was going to have to be a major exercise in updating its database. If the position is it started too late so as to complete the exercise in a satisfactory way, it cannot rely on its own default, by inviting the court to conclude that it was not "reasonably practicable" because of the truncated timescale which it had imposed upon itself.
  1. He says the RMT is not a small union. It has substantial funds available to it. If it knew, as it appears it did, that its information needed a "root and branch" overhaul, it was open to it to do what any other business would do in the circumstances, and either employ outside personnel to assist in the process or (given the importance attached to the accuracy of the information, as it well knew) to defer strike action until it was confident that the information in its possession was as reasonably accurate as was practicable in the circumstances.
  1. He invites attention to what is said by Mr. Murza in paragraph 7 of his first witness statement where it is asserted that he reviewed the letter of challenge in 2008 (that is the letter that was sent by Network Rail to the RMT in 2008). He says it is difficult to see how it is - if, as Mr. Murza says he did, he reviewed the letter - the errors identified still persisted. If, he says, Mr. Murza had done what he said he did, the obvious errors which existed would have been corrected. The inevitable inference, he submits, is that any examination that was done of the information, which by inference the RMT itself accepted it was important to examine, was done superficially and inadequately.
  1. The submissions made by Mr. Reynold in respect of the 2004 and 2008 information can be summarised in this way. It is clear, he submits, that the RMT did indeed look at the information which was provided to it by Network Rail, but account must be taken of the fact that this was not the primary, or indeed the most important, source of information linking the members to their workplaces. The 2004 and 2008 information, Mr. Reynold says, came into being as a result of previous industrial disputes between the parties; and it is important to bear in mind in the context of this particular industry, where there are job changes, constant movement and also disappearance of workplaces, that, as he puts it, the most recent available information must have pride of place. In addition he says the RMT was entitled to have reservations as to the reliability of the information which had been provided previously and there are, in addition, problems in terms of its accuracy, as highlighted by Mr. Murza.
  1. He submits that albeit some errors still persisted, when the matter is looked at in the round against the background of the careful steps that were taken by the RMT to ensure that information which was important was accurate and reliable, it cannot be suggested in those circumstances that the inaccuracies such as they were that resulted from any failure, if it was, to take account of the 2004 and 2008 information, disentitles the Union to the statutory protection available to it. This is because it had taken such steps as were required by section 226A (2D) to ensure that the information it provided in the ballot notice was "as accurate as reasonably practicable in the light of the information in the possession of a union".
  1. All that is by way of lengthy recitation of the submissions by both sides.
  1. In my view there is indeed, as I have already indicated, clear evidence that the RMT did not take account of the information which was available to it from Network Rail. The fact that the RMT did (as it has demonstrated) take other steps to check the information which was available to it, including by reference to the job evaluation spreadsheet, does not, it seems to me, excuse the failure to take obvious and simple steps which were available to it to check the information which it had. Some of the steps which it could have taken in relation to the 2008 information were very simple ones. No real explanation has been given in evidence before me as to how it comes about that, for example, despite the fact that Mr. Murza himself referred in his e mail of 13th January 2010 to a location that in one case had been burnt down that the workplace referred to, that is East Usk, appeared in the Ballot Notice and the Strike Notice. (I think that particular matter was referred to in the context of other information which was given in the job evaluation survey, but the same applies in relation to the 2004 and 2008 information, for example, in relation to an error relating to Chester).
  1. So far as the job evaluation survey is concerned, there is a factual dispute between the parties as to what information it was capable of conveying. In his second witness statement Mr. MacFarlane disputes that any relevant information could be derived from it. That produced a response from Mr. Murza in which he explains in particular in paragraph 7 why it is this was a document which was capable of providing relevant information.
  1. That is a difficult issue for me to resolve at an interim hearing. It is in this context I should correct something I said earlier. Mr. Béar refers to the station that was burnt down, East Usk, because he submits it is plain from the job evaluation survey it is described as closing in January 2010 and therefore it was not a relevant workplace for the purposes of the Ballot Notice. Yet Mr. Murza describes it as closing in 2010. What this shows, Mr. Béar submits, is that the analysis, if there was one, by reference to the information in the job evaluation survey, was a superficial one.
  1. There is a further point in relation to what were described in the Ballot Notice as the 29 members whose workplaces were described as "Unknown". In my view it is obvious, at least in relation to these members, that information about them was incomplete. There is no evidence that the RMT took any steps to find out the complete information by direct enquiry of those 29 members as it could have done. I do not accept what is said about this by the RMT, namely that it had no choice but to describe these members in this way. As was said by both Blake J in EDF v National Union of Rail, Maritime and Transport Workers [2010] IRLR 114 and Cox J in BA v Unite [2009] EWHC 3541 (QB), a union cannot just sit on its hands and say it does not have the necessary information, and then make no effort to obtain the information which is relevant to that which it has to provide.

(c) Inaccuracies in the Strike Notice

  1. I should mention one further point in relation to this. The same standard of accuracy is imposed for a strike notice as for a ballot notice. It is said on behalf of Network Rail, and has not been disputed in evidence, that some of the inaccuracies identified in relation to the Ballot Notice have persisted in the Strike Notice. By the time of the Strike Notice, that is, 30 March 2010, the RMT had in its possession the 24 March letter from Network Rail. Nonetheless, it did not then correct the information in the Strike Notice.

(d) No valid explanation given of RMT's figures.

  1. The next head of objection which is taken by Network Rail is that no valid explanation been given either in the Ballot Notice or the Strike Notice of RMT's figures. Three criticisms are made by Network Rail: first, that the six steps taken by the RMT referred to in the 30 March response letter could and should have been set out by way of explanation in the statutory Ballot Notice; second, it did not explain why the workplaces of 29 members were listed as "Unknown" and, third, that when one looks at the explanation actually given (that the database had been audited) none of the steps identified in the 30 March response letter involved anything which could reasonably be described in that way.
  1. The starting point is section 226A (2C) (i). It provides that a ballot notice must contain "an explanation of how these figures were arrived at": see also section 234A (3) (a) (i)). The relevant figures are the breakdown by category and by workplace of the number of members to be balloted. It is said on behalf of Network Rail that the explanation provided by the RMT consisted of what amounted to a formulaic mantra at the end of the Ballot Notice which fell short in the three respects I have mentioned.
  1. In support of this aspect of the application Mr. Béar refers to what was said by Lloyd LJ at [110] in Metrobus. He also relies on paragraph 16 of the Code of Practice, Industrial Action Ballots and Notice to Employers 2005 issued by the Secretary of State under TULRA.
  1. On behalf of the RMT Mr. Reynold makes a number of points in respect of the criticisms which have been advanced. In essence he submits that one cannot read into the statutory wording any obligation to provide information of the detail which Mr. Béar has criticised the RMT for not providing. He submits that the information that was provided was accurate, clear and identified the primary source for the data and the figures, namely an updated and audited database. He does not accept that it was suggested that there was in fact an 'audit' in the context, as contended by Mr. Béar. He submits that when one looks in particular at paragraph 109 of the judgment of Lloyd LJ in Metrobus there is nothing in support the suggestion that the explanation that has been provided is not sufficient in the circumstances. Mr. Béar says that explanation in reality is no explanation and it does not satisfy the statutory test. He submits, as I have already indicated, it is merely formulaic.
  1. I do not consider, as Mr. Béar has suggested, that the word 'audit' necessarily connotes that a process has been undertaken independently of the RMT. But nonetheless there is no suggestion in the evidence before me that the information in the Ballot Notice, or the Strike Notice for that matter, was in fact subjected to a separate and systematic scrutiny or, indeed, that this occurred even in relation to a sample by way of a spot check. The words used matter, as Lloyd LJ explained in Metrobus, because a union's obligation to explain itself serves a purpose that is, to reinforce the obligation to undertake the process properly in the first place.
  1. In my judgment, the information that was provided by way of explanation is such that Network Rail has a clear case (in addition to the other matters to which I have referred) on this discrete ground that the RMT is unlikely to succeed at trial in bringing itself within this statutory defence. What is an appropriate explanation obviously depends on the context. But I do not regard the information that was provided in the case as a proper explanation for the process that has been undertaken; and it seems to me there is considerable substance in Mr. Béar's submission that the information provided by the RMT and the process it described was a conclusion rather than an explanation.
**(2) The Ballot Constituency was not correctly identified or established**
  1. I turn next to ground 2 of the submissions on behalf of Network Rail. That is that the ballot constituency was not correctly identified or established. The first aspect of this complaint arises under section 227 and it also involves a consideration of what has been described as the section 232B "escape clause". The effect of section 227B is that (1) all intended strikers must be balloted and (2) no other members or persons must be balloted. However, by section 232B non compliance with section 227 can be disregarded if the failures are (a) "accidental"; and (b) "on a scale which is unlikely to affect the ballot".
  1. In support of this part of the application evidence was put before the court from Mr. MacFarlane, which it is unnecessary to do more than to identify, at paragraph 73(c) to (e) of his first witness statement. In the course of his submissions Mr. Béar acknowledged that Mr. Reynold was entitled to say in relation to Mr. MacFarlane's evidence on this point that it did not necessarily support a contention which had earlier been advanced by Network Rail. He acknowledged it cannot be assumed that members had not been balloted merely because there is an inaccuracy in relation to the attribution of a workplace or because a member had not been attributed to any particular workplace. Mr. Béar submits that this does not matter because his case does not depend on that contention, or at least that contention alone. He relies on the researches that Network Rail has been able to conduct (and which he says the Union has not done) so far as it was possible in the face of opposition from the RMT. He invites my attention in this context to what was said by Mr. MacFarlane at paragraph 38 for of his first witness statement.
  1. Although there was some dispute between the parties about this, which perhaps does not matter for present purposes, the essence of what is said in paragraph 38 is that in respect of certain "missing workplaces" Network Rail has been able to undertake certain enquiries which have established that five out of 21, or 23 according to whichever arithmetical calculation is correct, of the relevant staff did not receive a ballot paper. Mr. Reynold on behalf of the RMT puts the matter the other way round. He submits Network Rail's figures merely show that 18 out of either 21 or 23, depending on the arithmetic, did receive a voting paper.
  1. Mr. Béar submits that whichever figure is correct what is shown is significant because it appears that in relation to the examples which Network Rail has been able to check, on the face of it five people did not receive a vote when they should have done and the error which has been identified is significant. He submits it cannot be said in the circumstances that the ballot constituency was correctly established and if the Union wishes to bring itself within the "escape clause" it is for the Union to do so. It has not put forward any information which suggests that the failures which have been identified are not symptomatic of a wider failure and are either small or accidental. It is not suggested on behalf of Network Rail that these failures are deliberate but it submits is not necessary for that to be concluded. If the RMT wishes to establish these omissions were accidental then they would need to put evidence before the court in support of that and this they have failed to do.
  1. Mr. Reynold submits that in effect what has been put forward in support of this aspect of Network Rail's case is (these are my words, not his) "small beer". He says that Network Rail has had this case in gestation for some four weeks. The survey which is relied on in this context is limited and it is not a matter to which this court should attach much significance.
  1. I cannot, on the evidence before me, conclude that little significance is to be attached to the matters which have been identified in paragraph 38 of Mr. MacFarlane's first witness statement. The statutory requirement is there. On the face of the information before the court, it has not been complied with. In my view Network Rail is entitled to point to the proportion of those who were not provided with a ballot as being, at any rate at least, as of potential significance in this context in relation to such enquiries as Network Rail were able to undertake. I am also not satisfied on the information before me that the RMT can arguably bring itself within the escape clause which is provided by the particular statutory provisions to make allowance for accidental and minor defaults.
  1. A similar point arose and has been taken in relation to section 228A. It is conceded by Mr. Reynold on the evidence that for the same reason as identified relating to the complaint under section 227, a tiny number, as he describes it, of ballot papers may not have reached all the members in question, but he submits that in context of the statutory provisions and their proper interpretation the "escape clause" which I have referred to in relation to section 227 applies also in respect of 228.
  1. That has raised an interesting point of statutory construction which at 5.10 after a long day I am afraid I am simply not in a position to resolve. It arises in this way. It is said by Mr. Reynold that when one examines the statutory scheme, albeit no reference is made to section 228 in 227(2), it is clear from section 228 (and, in particular, section 228(3)(a)) that there is an argument – which may well be a good argument - that the escape clause might be relevant in this context. That is to say, to an alleged default in relation to the entitlement of members to vote and to the aggregation point which arises under section 228. It is however not necessary for me to resolve the point though I can see there is considerable force in the argument which is put forward by Mr. Reynold as a matter of statutory construction.
**(3) The RMT did not give the required prompt notification of the ballot result to its members.**
  1. Finally I should refer to this last point which is relied on by Network Rail. It is what may be described as a section 231 complaint. What is said on behalf of Network Rail is that there is a clear obligation under section 231 which is in this form:

"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, or as the case may be, to each question,

(c) individuals answering 'No' to the question, or, as the case may be, to each question, and

(d) spoiled voting papers."

  1. The information which was provided to members following the ballot that was taken was contained in a text message which was sent to members. This referred to "a solid vote for industrial action" and it gave a link to the Union's website for the full result.
  1. It is said on behalf of Network Rail that this cannot be sufficient for the purposes of section 231, given the wording of the section. I can well understand why the information was given briefly by text and I can also understand why it was thought appropriate by the RMT to direct its members to a website which contained the detailed breakdown of information which it is required to provide by section 231. However I certainly take the view that it is clearly arguable, that the steps that were taken did not bring the RMT within the requirements of section 231. 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. In my view therefore Network Rail has a strong case in relation to its complaint that the RMT did not take all the steps that were reasonably necessary to ensure all its members were informed of the numbers following the ballot.
  1. Given the circumstances in which this hearing is taking place and the necessary time constraints that have been placed on both sides, and indeed on the court, it may be that I have not covered or done sufficient justice to the arguments that have been advanced with, if I may say so, great skill and economy by Mr. Reynold on behalf of the RMT and Mr. Béar on behalf of Network Rail. But in the end I have come to a very clear conclusion, as I indicated at the start of my judgment, that the injunction should be granted. I am satisfied that Network Rail has established a clear case on the grounds that I have dealt with and as I have explained that the RMT would be unlikely at a trial of the action to establish a statutory defence
  1. Mr. Béar has invited me in addition to conclude, even if I could not form a view as to the likely outcome of the trial, that Network Rail has a seriously arguable case under normal American Cyanamid principles. Therefore he submits, the court would still be justified in the circumstances in granting an injunction having regard to the level of damage which a strike would cause to Network Rail and nationally. That matter has not been argued before me by Mr. Reynold. But I am satisfied having regard to the significant damage which is identified, and indeed will obviously result if the strike goes ahead (I refer in this context to what is said by Mr. MacFarlane in paragraphs 104 108 of his first witness statement) that the consequences of the strike are likely to be particularly severe, and that as the case is clearly arguable it would be appropriate in any event for an interim injunction to be granted. Any harm to the Union in having to await a speedy trial in my view would be clearly outweighed by the disproportionate damage done to others as Mr. Béar submits, by holding a strike which is arguably unlawful.

Published: 28/06/2010 09:57

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