Employment

Trade union - immunity from action in tort in respect of furtherance of trade dispute - ballot in support of proposed strike - members of class designated to take part in industrial action not balloted - requirements for immunity not satisfiedNational Union of Rail, Maritime and Transport Workers v Midland Mainline Ltd: CA (Lords Justice Schiemann, Kay and Sir Murray Stuart-Smith): 25 July 2001In May and June 2001 the union notified the employer that 91 members employed as operational train crews were to be balloted regarding a proposed strike, identifying them by category but refusing to give a list of names.

The employer refused to provide a list of employees to the union.

Of the 91 members, 25 voted in favour of strike action, 17 against strike action and 49 did not vote, resulting in a majority of eight in favour.

After the ballot had taken place it transpired that some 25 persons who were RMT members employed as operational train crew had not been balloted.

Of those, 11 persons were not balloted because, although they worked as operational train crew, RMT had not received or recorded information about their joining such grades and ten persons were not balloted because RMT believed them to be in arrears of contributions.

Four ballot papers were sent to the wrong address or not sent by administrative error.

The judge, in the exercise of his discretion under section 221 of the Trade Union and Labour Relations (Consolidation) Act 1992, granted an injunction preventing RMT from taking strike action on the ground that it was not likely that the union would establish a right to immunity from liability in tort under section 219.

The union appealed.John Hendy QC and Ian Scott (instructed by Pattinson & Brewer) for the union; Antony White QC (instructed by Ford & Warren, Leeds) for the employer.Held, dismissing the appeal, that among the unballoted members entitled to vote under section 227(1) of the 1992 Act there were some who would, if they had been given the chance, have voted against the strike; that a significant number of the membership (apart from the four whose ballot papers were sent as a result of 'small accidental failures' within section 232B inserted by section 21 of the Trade Union Reform and Employment Rights Act 1993) was not asked for its views; that the Act provided that immunity should only be available subject to strict conditions designed to ensure that workers should not be put in a position where, if they valued their standing among their fellows, they would have to take part in industrial action in relation to which they had not been balloted; and that since those conditions were not satisfied, the union was not entitled to immunity.