[ARCHIVED CONTENT] DTI Employment Relations

The legal framework for the operation of this Code is explained in Annex 1 and in its main text. While every effort has been made to ensure that explanations included in the Code are accurate, only the courts can give authoritative interpretations of the law.

The Code's provisions apply equally to men and to women, but for simplicity the masculine pronoun is used throughout. Wherever it appears in the Code the word “court” is used to mean the High Court in England and Wales and the Court of Session in Scotland, but without prejudice to the Code's relevance to any proceedings before any other court.

Passages in this Code which are printed in bold are re-statements of provisions in primary legislation.

1. This Code provides practical guidance to trade unions and employers to promote the improvement of industrial relations and good practice in the conduct of trade union industrial action ballots.

2. A union is legally responsible for organising industrial action only if it “authorises or endorses” the action. Authorisation would take place before the industrial action starts, and endorsement after it has previously started as unofficial action[1].

3. Apart from certain small accidental failures that are unlikely to affect the result, a failure to satisfy the statutory requirements[2] relating to the ballot or giving employers notice of industrial action will give grounds for proceedings against a union by an employer, a customer or supplier of an employer, or an individual member of the public claiming that an effect or likely effect of the industrial action would be to prevent or delay the supply of goods or services to him or to reduce the quality of goods or services so supplied. With the exception of failures to comply with the requirements to give notice to employers, these will also give grounds for action by the union’s members.

4. The Code does not deal with other matters which may affect a union’s liability in respect of industrial action. For example, the law will give no protection against proceedings to a union which organises secondary action, intimidatory or violent picketing, industrial action which is not “in contemplation or furtherance of a trade dispute”[3], industrial action to establish or maintain any closed shop practice or in support of a worker dismissed while taking part in unofficial industrial action. Nor does it apply to union election ballots, ballots on union political funds or ballots on union recognition or derecognition arranged for by the Central Arbitration Committee under section 70A of and Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”)[4]. These are subject to separate statutory requirements.

5. The Code itself imposes no legal obligations and failure to observe it does not by itself render anyone liable to proceedings. But section 207 of the 1992 Act provides that any provisions of the Code are to be admissible in evidence and are to be taken into account in proceedings before any court where it considers them relevant.

6. An industrial action ballot should not take place until any agreed procedures, whether formal or otherwise, which might lead to the resolution of a dispute without the need for industrial action have been completed and consideration has been given to resolving the dispute by other means, including seeking assistance from the Advisory, Conciliation and Arbitration Service (ACAS). A union should hold a ballot on industrial action only if it is contemplating the organisation of industrial action.

7. Where more than one union decides that it wishes to ballot members working for the same employer in connection with the same dispute, the arrangements for the different ballots should be co-ordinated so that, as far as practicable, they are held at the same time and the results are announced simultaneously.

8. For a ballot where more than 50 members are given entitlement to vote (see paragraph 21 below), the union must appoint a qualified person as the scrutineer of the ballot[5]. For a person to be qualified for appointment as scrutineer of an industrial action ballot, he must be among those specified in an order made by the Secretary of State[6] and the union must not have grounds for believing that he will carry out the functions which the law requires other than competently or that his independence in relation to the union might reasonably be called into question.

9. The scrutineer's terms of appointment must require him to take such steps as appear appropriate to him for the purpose of enabling him to make a report to the union as soon as reasonably practicable after the date of the ballot (ie the last day on which votes may be cast, if they may be cast on more than one day), and in any event not later than four weeks after that date.

10. The union must ensure that the scrutineer carries out the functions required to be part of his terms of appointment, and that there is no interference with this from the union, or any of its members, officials or employees; and comply with all reasonable requests made by the scrutineer for the purpose of carrying out those functions.

11. It may be desirable to appoint the scrutineer before steps are taken to satisfy any of the other requirements of the law to make it easier for the scrutineer to satisfy himself whether what is done conforms to the legal requirements.

12. In some circumstances, it may help ensure adequate standards for the conduct of the ballot or simplify the balloting process if a union gives the scrutineer additional tasks to carry out on the union's behalf, such as:-

13. Although the scrutiny requirement does not apply to ballots where 50 or fewer members are entitled to vote, a union may want to consider whether the appointment of a scrutineer would still be of benefit in enabling it to demonstrate compliance with the statutory requirements more easily.

14. The union must take such steps as are reasonably necessary to ensure that any employer who it is reasonable for the union to believe will be the employer of any of its members who will be given entitlement to vote receives written notice of the ballot not later than the seventh day before the intended opening day of the ballot (ie the first day on which a voting paper is sent to any person entitled to vote). That notice must:-

15. To avoid the risk of legal action, the union should allow sufficient time for delivery, use a suitable means of transmission (such as first class post, courier, fax, email or hand delivery) and consider obtaining confirmation that the employer has received the notice, by using recorded delivery or otherwise.

16. It may also reduce the risk of litigation for a union to check that an employer accepts that the information provided complies with the requirements of section 226A(2)(c) of the 1992 Act. Similarly, it would be in the interests of good industrial relations for an employer who believes the notice he has received does not contain sufficient information to comply with the statutory requirements to raise that with the union promptly before pursuing the matter in the court.

17. It is for the union to satisfy the requirement to provide sufficient notice. In reaching a decision on what information needs to be provided, the union may find it helpful to consider what information an employer is likely to have available, apart from that in the notice itself, which could help it make plans and bring information to those entitled to vote. Depending on the circumstances, factors such as the size and turnover rate of the employer’s workforce; the variety of work done for the employer; the number of locations at which it is carried out; and any previous experience of ballot notifications concerning the same employer may be relevant to a decision about how much detail needs to be included.

18. In some circumstances the requirement is likely to be satisfied by indicating to the employer that entitlement to vote will be given to all of the union's members engaged on, for example, a specified kind of work activity, or in a certain grade, or at a particular location. In some cases, if the employer would otherwise be left in doubt, more specific information, such as a combination of these items of information, may be needed, but in no case will a union be required to give employees’ names. Ultimately, it will always be a question on the facts of a particular case whether the notice gives an employer the required details.

19. The union must take such steps as are reasonably necessary to ensure that any employer who it is reasonable for the union to believe will be the employer of any of its members who will be given entitlement to vote receives a sample voting paper (and a sample of any variant of that voting paper) not later than the third day before the opening day of the ballot. Where more than one employer’s workers are being balloted, it is sufficient to send each employer only the voting paper or papers which will be sent to his employees.

20. If the sample voting paper is available in time, the union may wish to include it with the notice of intention to ballot. As with the ballot notice, the risk of non-compliance can be reduced by allowing enough time, using appropriate means of transmission and, possibly, by obtaining confirmation of receipt.

21. Entitlement to vote in the ballot must be given to all the union's members who it is reasonable at the time of the ballot for the union to believe will be induced (whether that inducement will be successful or not) to take part in or continue with the industrial action, and to no other members[7].

22. The validity of the ballot will not however be affected if the union subsequently induces members to take part in or continue with industrial action who at the time of the ballot:-

23. It should also be noted that accidental failures to comply with the requirements on:

will be disregarded if, taken together, they are on a scale unlikely to affect the ballot’s result.

24. Where the members of a union with different workplaces are to be balloted, a separate ballot will be necessary for each workplace unless one of the conditions set out below is met. It will be unlawful for the union to organise industrial action at any such workplace where a majority of those voting in the ballot for that workplace have not voted “Yes” in response to the relevant required question (or questions) (see paragraph 30 below). (If an employee works at or from a single set of premises, his workplace is those premises. If not, it is the premises with which his employment has the closest connection.)

25. In summary, the conditions for holding a single ballot for more than one workplace are:-

It is possible for a union to hold more than one ballot on a dispute at a single workplace. If the conditions above are met, some or all of those ballots may also cover members in other workplaces.

26. Votes must be recorded by the individual voter marking a voting paper. Voting papers must be sent out by post and members must be enabled conveniently to return them by post at no direct expense to themselves[9]. In practice, this means that those properly entitled to vote should be supplied with pre-paid reply envelopes in which to return the voting paper.

27. The period between sending out voting papers (ie the opening day of the ballot) and the date by which completed voting papers should be returned should be long enough for the voting papers to be distributed and returned and for the members concerned to consider their vote. The appropriate period may vary according to such factors as the geographical dispersion of the workforce, their familiarity or otherwise with the issues in the dispute, the class of post used and whether the ballot is being held at a time of year when members are more than usually likely to be away from home or the workplace, for example during the summer holidays. Generally, seven days should be the minimum period where voting papers are sent out and returned by first class post and fourteen days where second class post is used, although – very exceptionally – shorter periods may be possible for ballots with very small, concentrated constituencies who can be expected to be familiar with the terms of the dispute.

28. In order to reduce the likelihood of dispute over whether or not sufficient time has been allowed, the union may wish to consider obtaining one or more certificates of posting to confirm the date when voting papers were actually put into the post, and the number sent out.

30. While the question (or questions) may be framed in different ways, the voter must be asked to say by answering “Yes” or “No” whether he is willing to take part in or continue with the industrial action. If the union has not decided whether the industrial action would consist of a strike or action short of a strike (including overtime bans or call-out bans), separate questions in respect of each type of action must appear on the voting paper.

31. The relevant required question (or questions) should be simply expressed. Neither they, nor anything else which appears on the voting paper, should be presented in such a way as to encourage a voter to answer one way rather than another as a result of that presentation. It is not in general good practice for the union to include additional questions on the voting paper (for example, asking if voters agree with the union’s opinion on the merits of the dispute or are prepared to “support” industrial action), but if it chooses to do so they should be clearly separate from the required question(s).

“If you take part in a strike or other industrial action, you may be in breach of your contract of employment. However, if you are dismissed for taking part in a strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later.”

This statement must not be qualified or commented upon by anything else on the voting paper.

33. An example voting paper containing the information required by law and other useful information is set out in Annex 2 to this Code. Factual information as indicated would appear in the square brackets and either or both questions could be used as appropriate.

34. The union will wish to ensure that arrangements for producing and distributing voting papers will prevent mistakes which might invalidate the ballot. If in doubt, the independent scrutineer may be able to provide useful advice.

35. If there is no independent scrutineer, or if a union decides that it cannot follow the advice offered by the scrutineer, it should consider:-

36. A union should give relevant information to its members entitled to vote in the ballot, including (so far as practicable):-

In doing so, the union should ensure that any information it gives to members in connection with the ballot is accurate and not misleading.

- sent a voting paper by post to his home address, or another address which he has asked the union (in writing) to treat as his postal address;

- allowed to do so without incurring any direct cost to himself (see also paragraph 26); and

38. In order to reduce the risk of failures to satisfy the statutory requirements and invalidating the ballot, the union should establish an appropriate checking system so that:-

39. Any list of those entitled to vote should be compiled, and the voting papers themselves handled, so as to preserve the anonymity of the voter so far as this is consistent with the proper conduct of the ballot.

40. Steps should be taken to ensure that a voter's anonymity is preserved when a voting paper is returned. This means, for example, that:-

An inaccuracy in the counting of the votes is to be disregarded if it is both accidental and on a scale which could not affect the result of the ballot. Whether an accidental inaccuracy meets this test in practice will depend on the closeness of the ballot result.

42. Where the union itself is conducting the ballot, it may wish to apply some or all of the following procedures to secure that the statutory requirements have been complied with:

The union may wish to consider putting the counting exercise as a whole into the hands of the independent scrutineer.

43. A union must, as soon as reasonably practicable after holding an industrial action ballot, take steps to inform all those entitled to vote[11], and their employer(s), of the number of:-

Where separate workplace ballots are required (see paragraphs 24 and 25 above), these details must be notified separately for each such workplace to those entitled to vote there.

44. To help ensure that its result can be notified as required, the union may wish to consider, for example:-

45. Before giving the seven-day notice to employers of intended industrial action, the union must have taken the required steps to notify the relevant employer(s) of the ballot result details. Where the employees of more than one employer have been balloted, a failure to provide the required ballot result details to a particular employer or employers will mean that if the union organises industrial action by the workers of that employer or those employers it will not have the support of a ballot.

46. If the inducement of industrial action to which the ballot relates is to be capable of being protected by the law, some part of the action must be induced and start to take place within four weeks from the date of the ballot (ie the last day on which votes may be cast in the ballot) or such longer period not exceeding eight weeks as the union and employer may agree^[12]. (To reduce the risk of misunderstanding, both parties may find it helpful for such agreements to be in writing.) If a ballot results in a “Yes” vote for both a strike and action short of a strike and action short of a strike is induced and starts to take place within the relevant period, the ballot would also continue to protect strike action subsequently, and vice versa.

47. Where more than 50 members are given entitlement to vote, a union must appoint an independent scrutineer, whose terms of appointment must include the production of a report on the conduct of the ballot. This report must be produced as soon as reasonably practicable after the date of the ballot, and in any event not later than four weeks after that date.

48. The union must provide a copy of the scrutineer's report to any union member who was entitled to vote in the ballot, or any employer of such a member, who requests one within six months of the date of the ballot. The copy must be supplied as soon as reasonably practicable, and free of charge (or on payment of a reasonable fee specified by the union).

49. In order to reduce the risk of challenge to a ballot’s compliance with the statutory requirements, a union may wish to delay any call for industrial action, following a ballot, until it has obtained the scrutineer's report on the ballot.

50. If the union decides to authorise or endorse industrial action following a ballot, it must take such steps as are reasonably necessary to ensure that any employer who it is reasonable for the union to believe employs workers who will be, or have been, called upon to take part in the action receives no less than seven days before the day specified in the notice as the date on which workers are intended to begin to take part in continuous action or as the first date on which they are intended to take part in discontinuous action a written notice from the union which:-

Changes in the union’s intentions, for example as to the dates on which action is to be taken, require further notices to be given accordingly.

51. With the exception of the requirements relating to continuous and discontinuous action and to the need to give further notices in the event of changes in the union’s intentions, the statutory requirements applying to notice of industrial action are for the most part the same as those applying to notice of industrial action ballots and the guidance in paragraphs 15-18 will be of relevance, taking account of the different circumstances.

52. Where continuous industrial action is suspended, for example for further negotiations between the employer and union, the union must normally give the employer a further notice as in paragraphs 50 and 51 above before resuming the action. There is an exception to this requirement to give further notice, however, where the union agrees with the employer that the industrial action will cease to be authorised or endorsed with effect from a date specified in the agreement but may be authorised or endorsed again on or after another date specified in the agreement and the union:-

For this exception to apply, the resumed industrial action must be of the same kind as covered in the original notice. That will not be so if, for example, the later action is taken by different or additional descriptions of workers. In order to avoid misunderstanding, both parties may find it helpful for such agreements to be in writing.

53. There is no statutory obligation on a union to ballot, or otherwise consult, its members before it decides to call off industrial action. However, if a union decides to seek its members' views about continuing with industrial action, it may wish to apply the same standards to the process of seeking their views as are set out in this Code.

1. Section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992 lays down when a union is to be held responsible for the act of inducing, or threatening, a breach or interference with a contract when there is no immunity. The union will be held liable for any such act which is done, authorised or endorsed by:-

A union will be held responsible for such an act by such a body or person regardless of any term or condition to the contrary in its own rules, or in any other contractual provision or rule of law.

3. A union will not be held liable for such an act of any of its committees or officials, however, if its Executive Committee, President or General Secretary repudiates the act as soon as reasonably practicable after it has come to the attention of any of them, and the union takes the steps which the law requires to make that repudiation effective. But the union will not be considered to have “effectively repudiated” an act if the Executive Committee, President or General Secretary subsequently behave in a manner which is inconsistent with the repudiation.

4. The fact that a union is responsible for organising industrial action to which immunity does not apply does not prevent legal action also being taken against the individual organisers of that action.

5. A trade union which organises (ie authorises or endorses) industrial action without satisfying the requirements of section 226 (for balloting on industrial action), or 234A (for notice to employers of official industrial action), of the 1992 Act will have no “immunity”. Without immunity the trade union will be at risk of legal action by (i) an employer (and/or a customer or supplier of such an employer) who suffers (or may suffer) damage as a consequence of the trade union's unlawful inducement to his workers to break or interfere with the performance of contracts; and/or (ii) any individual who is (or is likely to be) deprived of goods or services because of the industrial action. Such legal proceedings might result in a court order requiring the trade union not to proceed with, and/or desist from, the unlawful inducement of its members to take part or continue with the action, and that no member does anything after the order is made as a result of unlawful inducement prior to the making of the order.

6. Under section 62 of the 1992 Act, a member of a trade union who claims that members of the union, including himself, are likely to be or have been induced by the union to take industrial action which does not have the support of a ballot may apply to the court for an order, which may require the trade union to take steps to ensure that there is no, or no further, unlawful inducement to members to take part or continue to take part in the action, and that no member does anything after the order is made as a result of unlawful inducement prior to the making of the order.

7. If a court order issued following legal proceedings as described in paragraphs 5 and 6 above is not obeyed, anyone who sought it can go back to court and ask that those concerned be declared in contempt of court. A union found in contempt of court may face heavy fines, or other penalties which the court may consider appropriate.

8. In addition, any member of the union may have grounds for legal action against the union's trustees if they have caused or permitted the unlawful application of union funds or property.

ARE YOU PREPARED TO TAKE PART IN INDUSTRIAL ACTION CONSISTING OF A STRIKE?[14]

ARE YOU PREPARED TO TAKE PART IN INDUSTRIAL ACTION SHORT OF A STRIKE (which for this purpose is defined to include overtime and call-out bans)?[14]

Your union intends the following to have authority to make the call for industrial action to which this ballot relates: [DETAILS OF RELEVANT PERSON, PERSONS, AND/OR CLASS OR CLASSES OF PERSONS]

If your vote is to count, this voting paper must be returned to [FULL ADDRESS OF LOCATION TO WHICH THE VOTING PAPER IS TO BE RETURNED] by [FULL DATE AND TIME AS APPROPRIATE]. Please use the enclosed pre-paid envelope provided for this purpose.

The law requires your union to ensure that your vote is accurately and fairly counted and that you are able to vote without interference from the union or any of its members, officials or employees and, so far as is reasonably practicable, in secret.

If you take part in a strike or other industrial action, you may be in breach of your contract of employment. However, if you are dismissed for taking part in a strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than eight weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later.

The following paragraphs of the Code deal with requirements to provide information to employers:-

[1] A note on trade union legal liability for the organisation of industrial action is set out in Annex 1 to this Code.

[2] Set out in sections 226-232A and section 234A of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Trade Union Reform and Employment Rights Act 1993 and the Employment Relations Act 1999.

[3] The term “trade dispute” is defined in section 244 of the 1992 Act.

[4] Inserted by the Employment Relations Act 1999.

[5] Where separate workplace ballots are required, the scrutiny procedures must be followed in respect of each separate ballot if the number of members given entitlement to vote aggregated across all of the ballots is more than 50.

[6] In broad terms, the current order (SI 1993 No. 1909) covers practising solicitors, qualified accountants and three named bodies (Electoral Reform Ballot Services Limited; The Industrial Society; and Unity Security Balloting Services Limited, now called Election.Com Limited).

[7] The union may choose whether or not to give a vote to any "overseas member", ie any member (other than a merchant seaman or offshore worker) who is outside Great Britain for the whole of the voting period. However, members who may be called upon to take part in or continue with the industrial action, and will be in Northern Ireland for the whole of the voting period, must be given entitlement to vote in a ballot where: (i) the ballot is a workplace ballot at their workplace in Great Britain; or (ii) they work in Northern Ireland but it is intended that they should be called upon to take part in the industrial action alongside their counterparts in Britain, and the ballot is a general ballot covering places of work in both Northern Ireland and Great Britain.

[8] Section 228A(5) of the 1992 Act defines for this purpose which members are affected by a dispute.

[9] There is a limited exception for the balloting of union members who are merchant seamen, where the union reasonably believes that they will be employed in a ship at sea (or outside Great Britain) at some time in the period during which votes may be cast and that it will be convenient for them to vote while on the ship or where the ship is. So far as reasonably practicable, the union must ensure that, in these circumstances, those members get a voting paper while on board ship (or at the place where the ship is located), and an opportunity to vote on board ship (or at that place). The recommendations in this Code should be applied to such ballots, however, save to the extent that they are irrelevant because the dispatch of voting papers is not by post.

[10] Where a person who has not been not specified on the voting paper calls industrial action before it is first called by a specified person, then – in order to be certain that the ballot will give protection against legal proceedings – the union should if possible ensure that the call by the unspecified person is effectively repudiated.

[11] If overseas members of a trade union have been given entitlement to vote in an industrial action ballot the detailed information about its result need not be sent to them, but the information supplied to non-overseas members in accordance with the statutory requirements must distinguish between votes cast, individuals voting, and spoiled ballot papers to show which details relate to overseas, and which to non-overseas, members. (For these purposes members in Northern Ireland given entitlement to vote do not count as "overseas" members.)

[12] A union may be allowed to make its first call for industrial action more than four weeks after the date of the ballot if either (a) the employer and union agree on an extension, for example to enable talks which are making progress to continue, of up to eight weeks after the date of the ballot or (b) an injunction granted by a court or an undertaking given by the union to the court prohibits the union from calling for industrial action during some part, or the whole, of the four weeks following the date of the ballot, and the injunction subsequently lapses or is set aside or the union is released from its undertaking. In the latter case, a union may forthwith apply to the court for an order which, if granted, would provide that the period during which the prohibition had effect would not count towards the four week period for which ballots are normally effective. However, if the court believes that the result of a ballot no longer represents the views of union members, or that something has happened or is likely to happen which would result in union members voting against taking, or continuing with, action if there were a fresh ballot, it may not make such an order. In any case, a ballot can never be effective if a union's first call for industrial action is made more than twelve weeks after the date of the ballot.

[13] For these purposes, industrial action is "discontinuous" if it is to involve action other than on all the days when action might be taken by those concerned. An indefinite strike would, therefore, be "continuous"; an overtime ban might be "continuous" or "discontinuous", depending on whether the ban applied to overtime working on all the days on which overtime would otherwise be worked or to overtime working on only some of those days.

[14] Either question or both should be included as appropriate.

CODE OF PRACTICE

INDUSTRIAL ACTION BALLOTS AND NOTICE TO EMPLOYERS