Going against legal advice would leave the MU in a highly vulnerable position should a challenge to the process be forthcoming. Photo credit: Shutterstock
The Executive Committee (EC) is the governing body of the union, made up of nineteen democratically elected MU members. As part of its decision-making process, the EC sought legal advice from Thompsons Solicitors, one of the UK’s leading legal firms covering trade union law.
The legal advice indicated that making changes to the duration of a statutory ballot, regulated under the Trade Union and Labour Relations (Consolidation) Act 1992, after the start and end dates had been published and the ballot had opened would leave the MU open to significant risk of a successful legal challenge, which could then render the whole process invalid. A letter confirming the legal advice may be read in full below.
Whilst the EC, which operates on the basis of collective responsibility, has considerable sympathy with the intent of the motion, going against legal advice would leave the MU in a highly vulnerable position should a challenge to the process be forthcoming. As a result, the EC has reluctantly voted to reject the motion and maintain the scheduled closing date of the ballot as midday on Monday 7 March 2022.
If you are still to receive your ballot pack, please contact the independent scrutineer for the process, UK Engage, by email: mu@uk-engage.org or telephone: 0345 209 3770.
Further information about the process, including the candidate’s election statements and links to their personal campaign websites can be found on our website.
Your vote is incredibly important, so please complete your ballot paper according to the instructions provided and return it in the pre-paid envelope as promptly as possible. The deadline for receipt by the independent scrutineer is midday on Monday 7 March 2022.
Make sure your vote counts.
The legal advice received by the MU reads as follows:
General Secretary election - extending the date by which voting papers must be returned
The MU has appointed an independent scrutineer UK Engage to conduct its General Secretary election. Concern was expressed last week that some members had not received ballot papers and a motion submitted to extend the deadline to return ballot papers. The closing date is 7 March 2022.
You asked me on 23 February 2022 whether the MU could extend the deadline for the return of ballot papers. I advised that the General Secretary election was a statutory election and had to be run in accordance with the Trade Union and Labour Relations (Consolidation) Act 1992 sections 46-61. I advised to change the published date for the return of ballot papers could leave the Union open to challenge through the Certification Office.
Your Executive Committee discussed the issue and you asked me what the likelihood was of a successful challenge. I said that I would strongly advise against changing the deadline and that any member who thought that they were disadvantaged by the change could bring a challenge. Although the success or otherwise of any challenge would perhaps depend on the size of the majority of a successful candidate. If there was a narrow victory the CO would be more likely to intervene and grant an enforcement order which would mean the expense of re-running the General Secretary election and a period of uncertainty for the Union.
You explained that the timetable had been set and publicised before the election started. I asked if there was a system for fresh ballot papers to be issued if they had not been received and you explained that there was and you had publicised it on the website.
You have sent me the timetable which was agreed by the EC in July 2021 and I see that from the start it was envisaged that the ballot was likely to open on the 14 February and close on the 7 March 2022. A three week ballot period is not unreasonably short for a postal ballot. As discussed, some Unions provide for considerably longer ballot periods due to the circumstances in which their members' work (off shore etc). There is no statutory minimum period and there is no guidance about what might be an appropriate period.
There is a statutory code of practice about industrial action ballots and notices to employers. While this does not apply to other statutory ballots under the 1992 Act it is instructive in that it says at paragraph 32 "the period between sending out voting papers (i.e. the opening day of the ballot) and the date by which completed ballot papers should be returned should be long enough for the voting papers to be distributed and returned and for the members concerned to consider their vote. The appropriate period may vary according to such factors as the geographical distribution of the workforce, their familiarity or otherwise with the issues in the dispute, the class of post used and whether the ballot is being held at a time of year when members are more likely to be away from home or the workplace, for example during the summer holidays. Generally, seven days should be the minimum period where voting papers are sent out and returned by first class post and fourteen days where second class post is used, although - very exceptionally shorter periods may be possible for ballots with very small concentrated constituencies who can be expected to be familiar with the terms of the dispute".
I assume, prior to the recent issues it had not been suggested that three weeks was an insufficient period. As discussed, the amount of time provided for voting may be something you wish to review as part of a post- election review of procedures, however, I do not consider you can change the deadline now.
There is a further issue, which is the role and appointment of the Independent Scrutineer (the "IS"). Now the IS has been appointed, the IS is responsible for the supervision, production and distribution of the ballot papers and to whom the voting papers are returned to.
The voting paper itself is prescribed by statute (section 5I) and must state the name of the IS and clearly specify the address to which and the date by which it is to be returned [my emphasis]. I do not think it is possible for the E.C. now to vary the return date, not only has it been publicised but the IS has sent out voting papers with the date on it. In any event the IS could see any attempt by the E.C. to change the return date as interference with its role and would no doubt refuse to implement such a request.
For all the reasons above, I advise that it is now too late to change the return date on the voting paper or extend the date for the acceptance of voting papers.
If I can assist further, please do not hesitate to contact me.