Strikes will be harder to prevent following landmark Court of Appeal judgment

The Court of Appeal has made it more difficult for employers to stop strikes after its decision in RMT v Serco and combined cases in which it overturned injunctions against industrial action in cases involving the RMT and ASLEF. They were the latest in a spate of injunctions granted due to technicalities.

Chris Mordue, partner at Pinsent Masons, says the Serco case has not completely closed the door on employers getting injunctions to prevent strike action.

The Serco case saw the High Court grant an injunction against the RMT in January 2011 preventing a 48-hour strike on Docklands Light Railway, after the court questioned figures provided by the unions.

The Court of Appeal, however, has ruled unanimously that the union’s explanation of how it had arrived at the figures was adequate. In a judgment that will have major implications for ongoing disputes, the court held that “genuine and ultimately immaterial errors” in the balloting process will not negate the course of action, and that information about the categories of workers entitled to vote need only be “as accurate as is reasonably practicable”.

Furthermore, the requirement for an explanation as to how the lists and figures of employees in notices under sections 226a and 234a of the Trade Union and Labour Relations (Consolidation) Act 1992 are reached would have to be “positively and materially misleading” before it breached the statutory requirements.

The judgment is the clearest indication yet that minor or accidental errors over technicalities with strike ballots will not entitle an employer to an injunction.

RMT general secretary Bob Crow called the judgment “a massive victory for the 7 million trade unionists in the UK”.

Employment lawyer Christopher Syder, partner at Davies Arnold Cooper, told Personnel Today that this is a very significant decision. “The judgment is fabulous news for the unions,” he said, “as it will help avoid what they consider to be the legal traps for unions balloting on industrial action. I suspect the decision will make interim injunctions much less achievable – it will certainly make employers think more given the cost consequences of losing.”

“I would expect employers to voice their concerns with this development in the law direct to Government,” he added.

XpertHR has guidance on how to avoid a dispute escalating into industrial action.

XpertHR also has FAQs on industrial action.

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