Trade unions have long been required to ballot members before calling a strike, but only recently have they also been required to indicate on voting papers the period, or periods, during which industrial action is proposed. That provision came under the spotlight in a High Court test case concerning a planned strike by airline pilots (Thomas Cook Airlines Limited v British Airline Pilots Association).
The dispute between the pilots and Thomas Cook Airlines Limited in respect of pay and conditions was acknowledged to be a trade dispute within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Following a ballot held by their trade union, a majority of affected pilots voted in favour of strike action.
In seeking an injunction to halt the strike, Thomas Cook argued that the strict terms of TULRCA had not been complied with. In particular, the airline pointed to Section 229(2D), which was incorporated into TULRCA by the Trade Union Act 2016 and came into force in March 2017.
Section 229(2D), which had not been considered by a court before, requires that voting papers used in such ballots must indicate the period or periods within which industrial action is expected to take place. The papers used in the instant case informed pilots that ‘discontinuous’ strike action was proposed on ‘dates to be announced’ between the period from 8 September 2017 to 18 February 2018. The airline argued that that wording was not in accordance with the provision, that the ballot was thus invalid and that no strike action could lawfully be taken.
In refusing to grant the order sought, however, the Court found that it was more likely than not that the ballot papers complied with the provision in Section 229(2D). This had to be read in the context of all the uncertainties inherent in trade disputes and it appeared unlikely that Parliament had intended to require trade unions to give further details or to specify precise dates. It was sufficient for the voting papers to indicate the period during which the strike action was expected to take place and, in the circumstances, those who took part in the ballot would have understood what they were being asked to vote for.