Last week the House of Lords handed down its opinion in In re P (a minor). This is authority for the propositions that:
(a) the definition of 'trade dispute', when deciding whether a trade union has statutory immunity, should be widely and purposively interpreted; and,
(b) an immaterial and accidental failure to comply with the statutory balloting procedures does not deprive a union of statutory immunity.
P was an unruly child who had been permanently excluded (i.e. expelled) from school by the headmaster. However, the governors reinstated him on appeal. The teachers refused to teach him. The headmaster instructed them to do so and, following a ballot, the teachers went on strike.
P sought to obtain an injunction against the union requiring it to call off the strike. There were two main issues.
Issue 1: Definition of 'Trade Dispute'
P argued that 'trade dispute' is defined in s244(1) of the TULRCA 1992 as a dispute relating to "terms and conditions of employment".
There was no doubt that the terms and conditions of employment required the teachers to obey reasonable instructions of the headmaster. The dispute was over whether the instruction (to teach P) was reasonable. P argued that the terms and conditions were clear and, indeed, were common ground. The dispute was not over the terms and conditions - which were not in issue - but over the application or implementation of those terms.
The House of Lords, whilst accepting that as a compelling argument on a literal construction of the statute, rejected the argument. They held that the phrase 'trade dispute' should be interpreted widely so as to cover a genuine dispute between employer and employee relating to the job they are employed to do. Accordingly, the dispute was a 'trade dispute' within the meaning of the Act, and the union was entitled to statutory immunity (subject to compliance with the balloting procedures).
Issue 2: The Flawed Ballot
The balloting provisions, described by the House of Lords as "complicated", provide that "entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part...in the industrial action in question..." (s227(1))
Through administrative error, ballot papers were not sent to two eligible members. Their votes could not possibly have affected the outcome because the vote was overwhelmingly in favour of a strike.
However, the statute is clear; section 232A provides that the ballot is invalid if any eligible person is not given entitlement to vote. Although s232B provides an escape clause for "accidental" failures which are "unlikely to affect the result", the escape clause, on its face, applies to sections other that s232A.
The House of Lords held this was a drafting error. It relied on the fact that one of the sections referred to in the escape clause did not exist, so parliament must have intended to refer to another section - namely, s232A. The House held it would be absurd for such a minor breach of a complicated technical provision to invalidate the ballot, and a purposive construction of the Act, so stated that the 'escape clause' should also apply to s232A.