In Westminster Kingsway College v University and College Union the High Court considered whether industrial action was protected by a ballot held 11 months previously.
Section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992 says that if a trade union induces a person to take part in a strike, it is not protected unless the strike has the support of a ballot.
For a ballot to be valid it has to have been held, with the majority voting in favour of industrial action. Once valid, a ballot usually gives authority for action for four weeks, or where there is a series of rolling strikes the first strike has to take place within four weeks.
In 2013, Westminster Kingsway College offered an annual pay increase of 0.7% to all its employees. But this was not accepted by the University and College Union (UCU). In November 2013 UCU balloted its members to support a strike in relation to the pay negotiations. The majority of those balloted were in favour of strike action, which took place on 3 December 2013.
Further discussions between the parties took place in January 2014 but negotiations were not reopened. Later in the month, UCU notified its members that there were no plans for further strike action in January or February 2014.
Negotiations for the 2014/2015 pay period began in March 2014, although UCU made it clear that they had not accepted the 2013/2014 deal. Westminster Kingsway College advanced an offer that UCU again rejected. As before UCU balloted and secured a majority in support of strike action. But that ballot did not satisfy the statutory requirements.
UCU arranged a further strike for 14 October 2014 and sought to rely on the November 2013 ballot as having validly authorised a continuing series of rolling strikes.
Westminster Kingsway College applied for an injunction to prevent the strike on the basis that it was unlawful. This was because of the amount time that had passed since the original ballot.
The High Court found in favour of Westminster Kingsway College and granted the interim injunction.
The court considered that the proposed industrial action related to the pay dispute for 2014/2015 rather than that of the previous year. The fact that UCU had maintained grievances about the 2013/2014 dispute and had sought to reserve its right to take further action in respect of that dispute, did not mean that the strike would be protected as a result of a ballot being held "in respect of the action".
The court took the opportunity to make clear that even if the strike was about the 2013/2014 dispute, the November 2013 ballot could no longer authorise further strikes because of the "substantial interruption" between the ballot and the date of the proposed strike. The court confirmed that in determining whether an interruption ended a ballot's authority it should ask itself whether a reasonable trade union member looking at the matter shortly after the interruption would conclude that the action had come to an end.
In this case the court's view was that that ballot's authority came to an end no later than early spring 2014 when the negotiations for 2014/15 started.
Employers will welcome this decision, which provides helpful guidance on the duration of the authority for industrial action conferred by a union ballot.
Legislation provides detailed requirements for unions to meet when organising industrial action.
These legislative hurdles provide helpful opportunities for employers to contest the validity of such action. We recommend that employers faced with potential industrial action take specific advice as to the strategies available to them in attempting to prevent it.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
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