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27 June 2012
High Court (Queen's Bench Division)
Before arranging a ballot for industrial action and before calling industrial action, s 226A and s 234A of TUL(C)RA 1992 require unions to notify the employer of the total number of employees involved, the categories to which they belong, the workplaces of the employees and the numbers of employees concerned at each workplace. This case shows that these notices must be sufficiently clear to enable the employer to know which part or parts of its workforce are being asked to take part in the industrial action.
The union was seeking a bonus for transport workers in London as a result of the expected increase in work during the Olympics and Paralympics. The ballot notice sent to various employers who provided bus transport services to Transport for London (‘TFL') said the members balloted would be ‘all members who are drivers, engineering grades and supervisory grades working on the TFL contract either on a full-time or part-time basis'. The employers asked for clarification, as many of the employees in the grades mentioned spent no time at all on the TFL contracts; some worked very occasionally. Some worked indirectly on the contracts (such as Duty Managers and engineering grades, who worked on vehicles some of which might have been used on TFL contracts).
The Union responded, clarifying that all drivers would be balloted, including 4 drivers who worked on-call and could be required to work on the TFL contracts; as would drivers who worked on non-TFL routes but did some TFL driving outside their normal hours to earn overtime; and that Duty Managers and engineering grades could be expected to carry out some work at least on TFL contracts.
The ballot was in favour of strike action. The strike notice (for which s 234A imposes requirements similar to those for the ballot notice) was similar to the ballot notice but added the clarification previously given.
Three of the employers sought an injunction on the basis that it was still not possible for them to work out who had been balloted and who had been called out on strike.
The High Court agreed that the phrase ‘working on TFL contracts either on a full-time or part-time basis' was too imprecise, even with the subsequent clarification. The union was therefore unlikely to succeed at full trial and, given the considerable inconvenience and cost to the employers if the strike went ahead, an injunction was granted to prevent the strike.
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