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Sarah Lamont gives advice on dealing with a ballot for industrial action

The law relating to ballots – which must be held if industrial action is to be lawful – has changed a great deal and is due to change again on 1 October 2005.

In 2000, a number of changes came into force, under section four and schedule three of the Employment Relations Act 1999, which amended part five of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). A revised Code of Practice on Industrial Action Ballots and Notice to Employers came into force at the same time.

Under part 2 of the Employment Relations Act, changes were introduced on 6 April 2005 and on 1 October 2005 there will be further changes to TULRCA. The above code of practice is also being revised again and the new code will come into force at the same time.

What is this law designed to do?

The aim has been to reduce the likelihood of legal disputes between unions and employers by making it easier for trade unions and their members to understand the procedure on balloting.

Industrial action often involves the union's members acting unlawfully. Workers may be in breach of their contracts of employment if they go on strike for example, and the trade union itself can be at risk of liability, for having induced that breach of contract.

Under TULRCA, unions may escape liability for this if, among other things, the industrial action has the support of a valid ballot and the union has given notice to the employer. Failure to follow the Code of Practice does not automatically mean a union has acted unlawfully, but courts will take account of its provisions where they consider them relevant.

What are the provisions?

The union must provide notice of the ballot to the employer. Currently, the union must provide "such information in the union's possession as would help the employer to make plans and bring information to the attention of those employees". Case law has shown that this means providing numbers, categories and workplaces of the workers concerned, if the union possesses that information. When looking at whether the information is in the union's possession, the definition is quite broad, and will include the head office and offices of branch secretaries, but probably not information held by shop stewards.

From 1 October 2005, the ballot notice must:

• list the categories of employee to which the affected employees belong and provide numbers of employees in each category
• list of the workplaces at which the affected employees work and give the number of such employees at each workplace
• give the total number of affected employees
• provide an explanation of how the above figures were reached.

Other provisions are as follows:

• Where the employer deducts union dues from employee's wages by a 'check-off" system, the union will not have to provide all of this – just enough information to enable the employer to deduce all the information above
• The union must give notice to the employer before any industrial action takes place. The union does not have to name the employees in these notices, contrary to what the courts sometimes required in the past. However, if it does so, it would probably amount to adequate notice
• There are provisions on separate workplace ballots for cases where members of the union have different workplaces. The union must ballot all those who it reasonably expects will be induced by the union to take part in the action. The union need only ballot those workers who are members of the union at the time of the ballot. So, the ballot will not be invalidated if a worker, who was not balloted, takes part in industrial action, if that individual was not a member of the union at the time of the ballot. Obviously in those circumstances it would not have been reasonable to expect them to take part in the action at the time of the ballot
• There are specific classifications of action in the content of the ballot paper. An 'overtime ban' and a 'call-out ban' are classified as 'industrial action short of a strike'. There is also compulsory wording, which refers to the protection for employees who are dismissed within 12 weeks of taking part in lawful industrial action
• The 'shelf life' of a ballot can be increased from four to eight weeks if the employer and union so agree
• There is no requirement to give a further notice of industrial action where continuous industrial action is suspended and then resumed.

What impact have the new rules had so far?

It has been more difficult for employers to point to procedural defects and use them as the basis for an injunction to prevent industrial action. Courts are able to disregard failures to comply with the balloting provisions which are "accidental and on a scale which is unlikely to affect the result of the ballot".

The code clarifies the areas where these accidental failures may occur and since 6 April 2005, these have included errors where someone entitled to vote was accidentally not given a vote. The code also makes it clear that employers who believe that notices do not comply with the statutory requirements should raise it with the union promptly to avoid legal disputes. The proposed changes from October 2005 aim to simplify the process further.

Further information

See the DTI's Code of Practice: Industrial Action Ballots and Notice to Employers at www.dti.gov.uk/er/iab.htm

Sarah Lamont is partner at Bevan Brittan LLP