Conducting industrial action ballots
If the employer and the union have exhausted all other available means of resolving a dispute, the union may feel that there is no alternative but to call on its members to take industrial action.
However, for the industrial action to be lawful, it must meet certain conditions. One of these is that the union calling for the action must hold a properly conducted secret ballot.
For information on the other conditions, see lawful industrial action.
The law sets out certain requirements that the union must satisfy for the ballot to be legitimate. These requirements are set out below.
1. Independent scrutiny
For a ballot where more than 50 members have the right to vote, the union must appoint a qualified independent person as the scrutineer of the ballot. Information on who qualifies as a scrutineer is available from the Labour Relations Agency (LRA) - contact the LRA.
The total number of members with the right to vote can be an aggregate number of members from one - or more than one - workplace and where this is more than 50, scrutiny procedures must be followed.
A scrutineer must be, to the best belief of the union, independent of the union and able to carry out their duties competently.
The scrutineer's terms of appointment must include producing a report on the conduct of the ballot. They must produce the report as soon as reasonably practicable after the date of the ballot - and not later than four weeks after that date.
The union must provide a copy of the scrutineer's report to any union member who was entitled to vote in the ballot and 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. The scrutineer's report must say whether or not the ballot has been conducted fairly and lawfully.
See the Department for the Economy's code of practice on industrial action ballots for further information on scrutineers.
2. Sending employers notice of the ballot and a sample voting paper
The union must take such steps as are reasonably necessary to ensure that any employer of any union members who are entitled to vote receives certain information.
The union must send this information not later than the seventh day before the intended opening day of the ballot, ie the first day when a voting paper is sent to any person entitled to vote.
The notice must be in writing and must:
- state that the union intends to hold the ballot
- specify the date which the union reasonably believes will be the opening day of the ballot
- provide a list of the categories of employee to which the employees concerned belong, a list of the workplaces at which the employees concerned work, figures on the number of employees in each category, the numbers of employees at each workplace, the total number of employees concerned plus an explanation of how these figures were arrived at
Note that the lists and figures mentioned above do not need to be provided in full where the workers concerned pay their union subscriptions by deduction from pay at source, ie through the so-called 'check off' system.
In such circumstances, the notice must contain either:
- those same lists, figures and explanations as set out above
- information that will allow the employer to easily work out the total number of employees concerned, the categories of employee to which they belong, the number of employees concerned in each of those categories, the workplaces at which the employees concerned work and the number of them at each of these workplaces
The 'employees concerned' are those whom the union reasonably believes will be entitled to vote in the ballot.
Not later than the third day before the intended opening day of the ballot, the union must send the employer a sample of the voting paper (and any variants of it) which will be sent to the workers concerned.
The paper must:
- state the name of the independent scrutineer, where appropriate
- give the return address, and the date, it is to be returned by
- have a number, which is one of a series of consecutive numbers used to give a different number to each voting paper
- make it clear whether voters are being asked if they are prepared to take part in - or to continue to take part in - industrial action which consists of a strike, or industrial action short of a strike (which includes overtime bans and call-out bans)
- specify the person(s) and/or class(es) of person(s) who the union intends to have authority to make the first call for industrial action relating to the ballot, if the vote is in favour of industrial action
The paper must also contain the following statement: "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 strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than twelve weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later."
That statement must not be qualified or commented upon by anything else on the voting paper.
3. Timing of the ballot and related action
If members vote in favour of industrial action, the action must begin within four weeks of the date of the ballot.
However, 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:
- the employer and union agree on an extension of up to a further four weeks, eg to continue with talks which are making progress
- 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 apply for a court order which, if granted, would provide that the period of the prohibition would not count towards the four-week period for which ballots are normally effective.
The union must apply to the court no more than eight weeks after the date of the ballot. In such cases, the ballot cannot be effective if a union's first call for industrial action is made more than 12 weeks after the date of the ballot.
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 that 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.
Note that a union cannot gain statutory immunity merely by holding a properly conducted secret ballot after previously calling for industrial action without one.
4. Entitlement to vote
All those members whom the union - at the time of the ballot - reasonably believes will be induced by the union to take part in or continue with the industrial action, must be given the equal entitlement to vote. No one else may be given a vote - otherwise the ballot will be invalid.
The union may choose whether or not to give a vote to 'overseas members', ie members other than merchant seamen and offshore workers who are outside Northern Ireland at the time of the ballot.
However, members who are in Great Britain throughout the voting period for an industrial action ballot and who will be called upon to take part in, or continue with, the industrial action must be given entitlement to vote in the ballot if either:
- their place of work is in Northern Ireland and the ballot is of members at their place of work
- the industrial action to which the ballot relates will involve members in Great Britain as well as Northern Ireland and the ballot is a general one covering workplaces in both Great Britain and Northern Ireland
Members required to be given entitlement to vote by either of these requirements do not count as 'overseas members' for the purposes of the law on industrial action balloting.
The ballot will also be invalid if anyone denied entitlement to vote is subsequently called on to take part in the action by the union with the exception of union members who either:
- were not members at the time of the ballot
- were members at the time of the ballot but who it was not reasonable for the union to expect to be called upon to take action, eg because they changed jobs after the ballot
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(s). If a worker works at or from a single set of premises, their workplace is those premises. If not, it is the premises with which their employment has the closest connection.
In summary, the conditions for holding a single ballot for more than one workplace are that:
- at each of the workplaces covered by the single ballot there is at least one member of the union affected by the dispute
- entitlement to vote in the single ballot is given and limited to all of a union's members who, according to the union's reasonable belief, are employed in a particular occupation or occupations by one employer or any of a number of employers with whom the union is in dispute
- entitlement to vote in the single ballot is given and limited to all of a union's members who are employed by a particular employer or any of a number of employers with whom the union is in dispute
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.
5. Voting procedures
Voting must be made by the marking of a voting paper. The union should have sent the employer a sample of this at least three days before the start of the voting.
Those voting must be allowed to do so without interference from or constraint imposed by the union or any of its members, officials or workers.
So far as is reasonably practicable, every member properly entitled to vote must be:
- able to vote in secret
- given a convenient opportunity to vote by post at no direct cost to themselves
- sent a voting paper by post to their home address or any other address which they have asked the union, in writing, to treat as their postal address
There is a limited exception to these rules for the balloting of union members who are merchant seamen and the union reasonably believes that they will be employed in a ship at sea (or outside Northern Ireland) at some time during the voting period and that it will be convenient for them to vote while on the ship or where the ship is.
The voting paper must ask whether or not the voter is prepared to take part in - or continue to take part in - either:
- a strike
- action short of a strike, eg, an overtime or call-out ban
While the question(s) may be framed in different ways, the voter must be able to answer either 'Yes' or 'No' to indicate whether they are willing to take part in - or continue with - the industrial action.
The voting paper must specify the person(s) or description of person(s) who the union intends to have authority to call for industrial action to which the ballot relates, if the vote is in favour of industrial action.
For this purpose, anyone so specified need not be authorised under the union's rules to call on members to take industrial action, but must be among those for whose acts the union is responsible in law.
6. Majority support
Majority support must be obtained in response to the question(s) on the voting paper that are appropriate to the type of industrial action concerned, ie:
- in the case of a strike, majority support must be obtained in response to a question on the voting paper which asks if members are prepared to take part in (or continue with) strike action
- in the case of action short of a strike, majority support must be obtained in response to a question on the voting paper which asks if members are prepared to take part in (or continue with) action short of a strike
- if the action consists or may consist of a strike and other industrial action, majority support must be obtained for each type of action in response to separate questions on the voting paper asking if members are prepared to take part in (or continue with) each type
Majority support means the majority of those who actually vote, not the majority of those entitled to vote.
7. Announcing ballot results
A union must, as soon as reasonably practicable after holding an industrial action ballot, take steps to inform all those entitled to vote, and their employer(s), of the number of:
- votes cast in the ballot
- spoiled voting papers
- individuals answering 'No' to the required question(s)
- individuals answering 'Yes' to the required question(s)
Where separate workplace ballots are required, these details must be notified separately to those entitled to vote at each workplace.
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. However, the information supplied to non-overseas members in accordance with the statutory requirements must give separate details relating to overseas and non-overseas members. For these purposes, members in Great Britain given entitlement to vote do not count as overseas members.
8. Consequences of a union's failure to meet balloting requirements
If a union fails to satisfy the statutory requirements relating to the ballot or to give employers notice of industrial action (apart from certain small accidental failures that are unlikely to affect the result), this failure will give grounds for proceedings against a union by:
- a customer
- an employer
- a supplier of an employer
- 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 them or to reduce the quality of goods or services supplied
With the exception of failures to comply with the requirements to give notice to employers, such failures will also give grounds for action by the union's members.
If a union fails only to provide the required notice of intent to ballot or the sample voting paper to a particular employer who should have received it, only that employer or any individual deprived of goods or services because of the industrial action can bring proceedings.
Failure to satisfy any other balloting requirements will expose the union to proceedings brought by others, eg by its own members.
9. Calls for industrial action from individuals unspecified on the voting paper
A ballot will not give a union statutory immunity from legal proceedings if industrial action is called by a person not specified or described on the voting paper.
Therefore, if someone calls for action other than a specified person and no call is made by a specified person, the union would be at risk of proceedings being brought against it unless it effectively repudiated the call.
10. Statutory code of practice on industrial action notices and ballots
The Department for the Economy's statutory code of practice for industrial ballots promotes good practice in the conduct of industrial action ballots arranged by a trade union and in the preparation of notices to employers.
Failure to observe the provisions of the code does not in itself render a union, or anyone else, liable to any legal proceedings. However, where proceedings are brought against a union, the provisions of the code are admissible in evidence, and may be taken into account by a court if they appear relevant to any question before it.
LRA Workplace Information Service03300 555 300