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Issue 78 (March 2003)

Contents

School's out

P v NASUWT [2003] UKHL 8 (House of Lords)

This case concerns two aspects of the convoluted legislation on industrial action: the definition of a trade dispute and the extent to which small accidental failures are permitted in the balloting process.

The case concerned industrial action by teachers who refused to teach a disruptive pupil who was excluded from school but reinstated on appeal.

The employers argued that this was not a trade dispute. The definition of trade dispute in section 244(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 includes disputes relating wholly or mainly to terms and conditions of employment or the physical conditions in which workers are required to work and the allocation of work or duties of employment between workers.

The employers argued this was confined to disputes about rules governing employment rather than the application of those rules to particular facts. In other words, that the definition would cover a dispute on whether there should be a rule that teachers should comply with the directions of the head teacher, but not a dispute about whether they should comply with a particular direction of the head teacher.

The House of Lords rightly rejected this narrow and technical approach. Lord Hoffman said that "a dispute about what the workers are obliged to do or how the employer is obliged to remunerate them...is about terms and conditions of employment."

Lord Bingham observed that the definition covered disputes "relating wholly or mainly to the job the employees are employed to do or the terms and conditions on which they are employed to do it", and that it was plain that the dispute in this case related directly to the job the teachers were employed to do.

The second issue concerned two union members who were accidentally left out of the ballot but were then called upon to take part in the action. It is worth mentioning that the ballot result was 26 in favour of action and none against.

In the Employment Relations Act 1999 the Labour government made changes to the law so that small accidental failures did not mean that an industrial action ballot lost statutory protection. But a mistake was made in the legislation. The cross-referencing was wrong and, on the face of it, calling on someone to take part in action when they had not been balloted was not covered by the new provisions, even if the failure to include them in the ballot was small and accidental. (The error in the statute will be amended in the government's review of the Employment Relations Act which we will report fully in next month's edition of LELR.)

The House of Lords decided that the error in the legislation did not matter. The union was protected anyway because the two members concerned were not "denied entitlement to vote" in the sense of being deliberately excluded from the vote, which would have been unlawful. Instead an accidental error meant they were omitted from the list of voters and this was not unlawful in the circumstances.

The decision also reinforces that it is lawful to call upon someone to take action if the reason they were not balloted is that they were not a member of the union or an employee of the particular employer at the time of the ballot. In those circumstances, it would not have been reasonable for the union to have believed at the time of the ballot that they would have been called upon to take part in the action.