Law Report: Ballot for escalated industrial action was valid: Newham London Borough Council v The National and Local Government Officers Association. Court of Appeal (Lord Justice Neill, Lord Justice Woolf and Lord Justice Butler-Sloss), 11 September 1992

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A union is entitled to be partisan when balloting its members for more extensive industrial action provided it did not call, authorise or endorse the taking of the industrial action. It is not required to call off existing industrial action before holding the ballot.

The Court of Appeal allowed an appeal by the union from Mrs Justice Ebsworth's decision on 1 September 1992 that the council was entitled to an interlocutory injunction restraining industrial action by the union.

Section 7(3)(a) of the Employment Act 1990 provides: 'There must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot;'

In December 1991 the council made several redundancies, including three officers in the poll tax section. On 7 January 1992 a majority of officers in that section took strike action, without first conducting a ballot. On 11 May officers in the rent and benefits section took strike action, having conducted a ballot.

On 19 June the union wrote to the council stating that an emergency committee had agreed to a massive escalation of the strike action. On 19 June the union wrote to its members that it would ballot its members as to strike action in opposition to (a) the compulsory redundancies in the poll tax section and (b) the council's threat to sack the strikers. The poll tax section returned to work on 22 June. On 22 June officers in the central grant unit, having called a ballot, started a strike.

The ballot resulted in a majority in favour of strike action and on 3 August a strike began. In negotiations between the union and the council, the council agreed, among other things, to re-employ the three poll tax workers with certain differences in their terms of employment. The union was not satisfied with the council's proposal.

The council claimed that the union had contravened section 7(3) when calling the ballot and that the disputes to which the ballot related had been resolved. Mrs Justice Ebsworth decided that the council had disclosed an arguable case in relation to section 7(3).

John Hendy QC and Tess Gill (Bruce Piper & Co) for the union; Peter Birts QC and Christopher Makey (Borough Solicitor) for the council.

LORD JUSTICE WOOLF said that statutory provisions governed the taking of industrial action and had to be complied with by unions before they called, authorised or endorsed the taking or continuation of industrial action.

It was clear from the letters of 19 June that while the union was demonstrating that it wanted industrial action to be extended to other members in addition to those who were already on strike, it was not then calling on them to strike or authorising or endorsing their striking, but communicating the union's decision to authorise a ballot of all their members with a view to more extensive industrial action being taken.

So far as those employees who were not already on strike were concerned, the documents indicated that the union was intending to comply with the conditions in section 7(3) and would not contravene those conditions.

While the documents made it clear that the union was not adopting a neutral stance, not surprisingly the legislation did not make such an unreal requirement of the union. The union, as long as it complied with the legislation, was perfectly entitled to be partisan.

Mr Birts submitted that in order to comply with section 7(3), the union was required to call off any existing action which would be covered by the proposed ballot before it held a ballot. However section 7 did not have that effect. The second and third strikes were perfectly lawful strikes and were not industrial action for which a further ballot was required. After the further ballot, the earlier industrial action was subsumed in the broader industrial action but that did not mean that the later ballot was in any way concerned with the earlier industrial action.

Turning to the position in law where one side to an industrial dispute considered that the disputes which were the subject of the ballot had been resolved but the other party contended that that was not the case, the legislation made a ballot a condition precedent to taking industrial action in furtherance of a trade dispute and required the appropriate questions to be identified in the ballot paper.

If there had ceased to be a dispute over those questions then the subsequent industrial action could not be action which was supported by the ballot. The ballot had achieved its purpose and was exhausted. That remained the situation where there was no longer any real or live dispute but one side either deliberately or unintentionally or irrationally prolonged the appearance that the dispute continued.

Taking the position of the three employees in the poll tax section who had been made compulsorily redundant, if industrial action had not already started, then the degree of difference between the terms of employment would not have resulted in industrial action. However, once industrial action was taken attitudes hardened, and there was still a real dispute over this issue. There was therefore a live dispute on the first question in the ballot paper.

Although the appeal would be allowed, it was hoped that that conclusion would not result in a restoration of strike action and that both sides would want to avoid causing any further hardship to the residents in the borough.