Employment Act 1988

15 Independent scrutiny of certain ballots and elections

(1) In relation to ballots taken and elections held after the coming into force of this section—

(a) the requirements as to which the Certification Officer is to be satisfied under subsection (1) of section 4 of the 1913 Act (ballots on the application of funds for political purposes); and

(b) the requirements which are to be satisfied for the purposes of Part I of the 1984 Act (elections for certain positions),

shall include the requirements of subsections (2) to (7) below.

(2) The trade union in question—

(a) must, before the ballot is taken or the election held, appoint a qualified independent person (“the scrutineer”) to carry out—

(i) the functions in relation to the ballot or election which are required under subsection (4) below to be contained in the scrutineer’s appointment; and

(ii) such additional functions in relation to that ballot or election as may be specified in his appointment;

(b) must ensure that nothing in the terms of the scrutineer’s appointment, or in any additional functions specified in that appointment, is such as to make it reasonable for any person to call the scrutineer’s independence in relation to the union into question;

(c) must ensure that the scrutineer duly carries out his functions and that there is no interference with his carrying out of those functions which would make it reasonable for any person to call the scrutineer’s independence in relation to the union into question; and

(d) must comply with all reasonable requests made by the scrutineer for the purposes of, or in connection with, the carrying out of his functions.

(3) For the purposes of this section a person is a qualified independent person in relation to a ballot or election if—

(a) he satisfies such conditions as may be specified for the purposes of this paragraph in an order made by the Secretary of State or is himself so specified; and

(b) the trade union in question has no grounds for believing either that he will carry out any functions conferred on him in relation to the ballot or election otherwise than competently or that his independence in relation to the union, or in relation to the ballot or election, might reasonably be called into question;

and the power to make an order under paragraph (a) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(4) An appointment for the purposes of this section shall require the scrutineer—

(a) to be the person who supervises the production and distribution, for the purposes of the ballot or election, of all the voting papers and the person to whom those voting papers are returned by those voting;

(b) to take such steps as appear to him to be appropriate for the purpose of enabling him to make the report mentioned in subsection (5) below;

(c) as soon as reasonably practicable after the last date for the return of voting papers, to make that report to the trade union in question; and

(d) to retain custody of all voting papers returned for the purposes of the ballot or election—

(i) until the end of the period of one year beginning with the announcement by the union of the result of the ballot or election; and

(ii) where within that year any application is made under section 16 below or section 5 of the 1984 Act with respect to that ballot or election, for the period after the end of that year until the Certification Officer or the court authorises the disposal of the papers.

(5) The report referred to in subsection (4) above is a report with respect to the ballot or election stating—

(a) the number of voting papers distributed for the purposes of the ballot or election;

(b) the number of voting papers returned to the scrutineer;

(c) the number of valid votes cast in the ballot or election for each proposition or candidate;

(d) the number of spoiled or otherwise invalid voting papers returned;

(e) whether the scrutineer is satisfied as to each of the matters specified in subsection (6) below; and

(f) if he is not satisfied as to any of those matters, the particulars of his reasons for not being satisfied as to that matter.

(6) The matters mentioned in subsection (5)(e) above are—

(a) that there are no reasonable grounds for believing that there was any contravention of a requirement imposed by or under any enactment in relation to the ballot or election;

(b) that the arrangements made with respect to the production, storage, distribution, return or other handling of the voting papers used in the ballot or election, and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur; and

(c) that the scrutineer has been able to carry out his functions without any such interference as is mentioned in subsection (2)(c) above.

(7) The trade union in question must not publish the result of the ballot or election until it has received such a report as is mentioned in subsection (5) above from the scrutineer; and the union must—

(a) within the period of three months after it receives the report—

(i) send a copy of the report to every member of the union to whom it is reasonably practicable to send such a copy; or

(ii) take all such other steps for notifying the contents of the report to the members of the union (whether by publishing the report or otherwise) as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention;

(b) ensure that any copy sent or notification given for the purposes of paragraph (a) above is accompanied by a statement that the union will, on request, supply any member of the union with a copy of the report, either free of charge or on payment of such reasonable fee as may be specified in the notification; and

(c) so supply any member of the union who makes a request to the union to be supplied and pays such fee (if any) as has been notified to him.

(8) Section 6A of the 1913 Act (application of sections 3 to 6 of that Act to employers' associations) shall apply to the provisions of this section, in so far as they relate to the requirements mentioned in subsection (1)(a) above, as it applies to sections 3 to 6 of, and the Schedule to, that Act.