Section 227 of the Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA) governs the position on who is entitled to vote in a ballot. In summary, s227 says that only those members of a trade union who will take part in the industrial action are entitled to vote. Applying this to the BA case, it means that those 800 or so members who had accepted a voluntary redundancy package and would no longer be BA employees over the proposed 12 day strike period were entitled to vote.

Now, the fact that some of them did was not fatal to the strike as s232B provides a mechanism by which small, accidental failures under s227 can be disregarded if two criteria are met: (1) the failures must be accidental and (2) they must be on a scale which is unlikely to affect the result of the ballot.

As Dave has pointed out above, there is no doubt that the 800 votes would have made no difference to the outcome even if all had voted against the strike action. So that just leaves the question of whether or not Unite’s failure to restrict the ballot to only those who were entitled to vote (i.e. not allowing the 800 to vote) was accidental? I’m still waiting to read the High Court decision but I suspect from what the newspapers have reported that Unite knew that there were some 800 or so members who had accepted voluntary redundancy but they (Unite) did not have the time to put in place measures to stop those 800 from taking part in the ballot. Remember, Unite were up against the clock as they desperately wanted the ballot to take place before Christmas in order to put BA in as difficult a situation as possible. Therefore, I suspect that Justice Cox found that the failure was not accidental and therefore the test in s232B was not satisfied and the ballot was therefore invalid.

Some people (like Dave and Derek Simpson) call this a technicality and say that Justice Cox was somehow acting outside of her vires by commenting on the length and timing of the proposed strike. Derek Simpson even had the cheek to say that this was a bad day for democracy! It was a flagship day for democracy in the sense that the law, as enacted by Parliament following a democratic process, was upheld by an independent judiciary! The fact that they don’t like the decision is an entirely separate matter. Justice Cox’s comments were what lawyers called ‘obiter’ i.e. that they do not form part of the legal rationale for the decision but are just background comments. Judges do this all the time – it is not a sign of bias or misapplication of the relevant law.

I’m not condemning or condoning the decision, I just hope the above is vaguely helpful. It may well be that the Court of Appeal slap it down tomorrow (if they’re appealing).