[picappgallerysingle id="8828664" align="left"] The Court of Appeal will begin hearing submissions at 2.00 p.m. this afternoon in order to determine whether Unite will be granted leave to appeal against yesterday’s injunction which prevented the latest scheduled strike from going ahead.

As has been widely reported, Mr Justice McCombe granted an injunction in favour of British Airways following a procedural challenge. Unite was claimed not to have complied with section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992. It should be noted that the requirement set out in the Act is clear and unambiguous:

231.
As soon as is reasonably practicable after the holding of the ballot, the trade union shall take such steps as are reasonably necessary to ensure that all persons entitled to vote in the ballot are informed of the number of—
(a)votes cast in the ballot,
(b)individuals answering “Yes” to the question, or as the case may be, to each question,
(c)individuals answering “No” to the question, or, as the case may be, to each question, and
(d)spoiled voting papers.

British Airways maintained that the information was readily available from the scrutiniser’s report but Unite had not taken any active steps to make the information available to those who had been entitled to vote, hence the breach of section 231.

Unite maintained that the information was available from websites, notice boards at work and news sheets available at various locations. Was this sufficient to discharge the obligation set out at section 231?

The judge applied the decision in Metrobus -v- Unite the Union [2009] EWCA Civ. 829. Significantly, in that case, an injunction was granted against Unite preventing industrial action on the basis that the union did not notify the outcome of the ballot within a reasonable time and did not provide sufficient detail about the numbers taking industrial action at each depot. Accordingly, one might reasonably have thought that Unite would in this case have been meticulous in ensuring compliance with the statutory requirements. Evidently they were not, although the failure to identify 11 spoilt ballot papers does seem a very fine point on which to have determined that industrial action should be prevented.

Of course, the decision has led to some branding what has happened as “an assault on democracy” but the background to yesterday’s hearing does help to set the context. The details are set out in the statute for all to see and this is by no means new law. While it all very well for people to complain about what appears to be a disproportionate impact resulting from a technical non-compliance, it is important to remember that judges are given the responsibility of applying statute law and not disregarding it. The statute exists and contains precise and strict requirements with serious consequences resulting from non-compliance. All that happened yesterday was that the law was correctly applied. Whether the legislation should exist in its present form is, of course, the much larger question, but one which did not need to trouble Mr Justice McCombe yesterday.