Edward Goodwyn, partner in the Employment team at Pinsent Masons highlights two possible challenges that could be made as to the legality of the union ballots that took place in regard to the mass strike action planned for 30th November.

There are two issues in regard to the ballot: The unions gave notice to the employers on the basis that the ballot was conducted, whereby the voting constituency was the employers own employees. However, the Unison ballot results have been published by way of seven aggregated ballots. This is, in our view, fundamentally inconsistent with the type of ballot notified to each individual employer and could give employers the ability to legally challenge the ballot. What Unison said in their ballot notices to each employer was that “we intend to hold a ballot for industrial action” and “we intend to send ballot papers to all of our members employed by your organisation”.

There was no mention at all of an aggregated ballot of members employed by multiple employers and no mention of the specific voting constituencies declared in the ballot result.

The affected employers now facing strike action have no knowledge of the level of support for that strike in their own organisations or even whether a majority of voters among their employees have voted in favour of strike action.

The second issue relates to the speed by which the unions must tell the employer of the result of the ballot. Following a case a year or so ago in the Court of Appeal, the trade union must tell the employers also immediately – within 24 hours or sooner. We understand that some employers have not received any notices of the ballot result, some 7 or so days after the result was in. Even though Unison could argue that through the press interest and their internet posting, the employers know or should have known the result of the ballot, Unison has not complied with the statutory requirements. Whether any employer will take any of these points remains to be seen. Presumably, the government does not want to take the point at this stage so as not to upset the balance in the negotiations.