London Underground Ltd v Associated Society of Locomotive Engineers and Firemen (ASLEF)
This case concerned proposed industrial action relating to a dispute over payments to tube drivers for working on Boxing Day. The union notified London Underground that it would ballot approximately 1,950 members at listed depots. On 14 December 2011, the union notified the employer of the ballot result: 998 people voted, with 920 voted in favour of strike action. The union called for strike action on Boxing Day 2011.
London Underground sought an interim injunction to prevent the strike, on the basis that the number of people voting in the ballot was approximately double the number who could potentially take part in the action, as only about 480 ASLEF members were scheduled to work on Boxing Day.
There was no issue as to whether or not the action was in contemplation of furtherance of a trade dispute. The key issue was whether or not it was likely that the union had lost immunity by failing to comply with the strict ballot and notice requirements for lawful industrial action. The provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) concerning the ballot require that the union must include all those members who, at the time of the ballot, it is expected will be induced to take part in the action, and exclude everyone else.
London Underground submitted that the ballot was invalid as it included members who were not due to attend work on Boxing Day. London Underground also argued that the union was calling for action on Boxing Day and three additional days, but that the ballot notice had referred only to Boxing Day.
The High Court found that the likely conclusion at trial, on the basis of witness evidence from ASLEF, was that the industrial action being considered was not limited to Boxing Day.
The High Court also said that, although a strike requires a democratic mandate, it does not necessarily follow that the persons balloted must be limited to those who will actually be on strike, ie withdrawing labour on a particular day. The provision in TULR(C)A states that the ballot must be restricted to those likely to be induced to "take part" in industrial action. This was, in the opinion of the High Court, a strong indication that it was not limited to those who actually take strike action.
The High Court relied on Bolton Roadways Ltd v Edwards and others  IRLR 392 EAT, in which the EAT said that an employee who is absent due to holiday or sickness would not be in breach of a contractual obligation to work, but could be participating in industrial action if he she or associated with the strike or attended a picket line. The High Court considered that there were reasonable grounds to believe that workers not rostered to work on Boxing Day would be induced to take part in the industrial action. The High Court refused to grant the injunction and the action went ahead on Boxing Day.
This decision takes a wide view of the category of workers that the union is entitled to ballot in respect of industrial action. This follows the recent trend of the courts to take a less restrictive view of the complex balloting and notice requirements required for lawful industrial action (in cases such as RMT v Serco Ltd t/a Serco Docklands and ASLEF v London & Birmingham Railway Ltd t/a London Midland  EWCA Civ 226 CA) and judicial reluctance to impose injunctions preventing trade unions from calling their members to take part in industrial action.
The High Court judge repeated observations in other recent decisions that, when applying the law on industrial action, regard must be had to the importance of union members having an "effective right to withhold their labour" and to the fact that these provisions "are not designed to prevent unions from organising strikes, or even make it so difficult that it will be impracticable for them to do so".
However, cases such as this may increase pressure on the Government to tighten up the laws on industrial action.