Readers will be aware of the high profile three day strike which BA staff, backed by UNITE, have just undertaken. We have asked Sharon McArdle of Tughans Solicitors to look at the background of this dispute and why this strike has gone ahead. A second strike is, at the time of writing, due this weekend.

Unite is currently involved in a trade dispute with BA over a number of matters including BA’s decision to reduce the number of crew on board long haul flights by one member. This issue was the subject of legal proceedings in the case of Malone v British Airways PLC [2010] EWHC 302(QB). In that High Court action, the Claimants contended that the proposed reduction in flight crew numbers was unlawful and in breach of their contracts of employment on the basis that minimum flight crew numbers were set down in collective agreements which had been incorporated in to their employment contracts. The High Court did not agree that such agreements had been effectively incorporated and therefore did not find any breach of contract. That judgment was issued on 19th February 2010.

With the failure of that particular legal action and with BA intent on following cost reduction measures, UNITE (who represent 96% of BA employees) balloted its members, who have voted in favour of the present strike action.

UNITE members had previously voted in favour of strike action in December 2009 but BA successfully obtained an injunction preventing this strike from going ahead, in the decision of British Airways PLC v Unite the Union [2009] EWHC 3541 (QB). How did BA obtain this injunction previously, and why did it not take similar proceedings on this occasion?

In that case, the High Court held that the proposed strike action did not have statutory immunity because the union had failed to follow fully the necessary balloting procedures. Without such immunity, the Union could not recommend its members to proceed with strike action. This is because industrial action amounts to a breach of the employment contract by employees for which they could be dismissed by their employer. Employees are only protected from dismissal if the industrial action in which they are taking part benefits from statutory immunity.

In order to benefit from statutory immunity, industrial action must:

1. Relate to a trade dispute
2. Be wholly or mainly in contemplation of furthering that dispute
3. Only follow a properly conducted secret ballot: and
4. The employer must have been given the required notice of official industrial action.

Unfortunately for UNITE, it fell down on point 3.

UNITE conducted a ballot or its members between 16th November and 14th December 2009. The outcome of that ballot was 92.49% were in favour of strike action, on a turnout of 80%. On 14th December 2009, UNITE gave notice of a 12 day strike by cabin crew, to commence on 22nd December 2009.

BA applied for an interim injunction to restrain the union from proceeding with the strike, on the basis that UNITE had failed to comply with the requirements necessary to give the union statutory immunity, under the Trade Union and Labour Relations (Consolidation) Act 1992, (the UK equivalent of our own Trade Union and Labour Relations (Northern Ireland) Order 1995).

BA maintained that the proposed industrial action would be unlawful because UNITE had erroneously included within the ballot notification and then erroneously balloted, several hundred employees who had accepted voluntary redundancy and who would have left BA’s employment by the date of the proposed strike action.

UNITE defended the action on the basis that the information provided in the ballot and strike notices was as accurate as was reasonably practical and that any failure in relation to the ballot itself was accidental and had no effect on the result of the ballot.

BA successfully obtained an interim injunction against the strike action.

The High Court held that UNITE were not entitled to rely on the reasonable practicability defence for a number of reasons:

1. In its letter to employees dated 6th November 2009, UNITE made no reference to the need to exclude from the balloting process those who would be leaving BA in November and December or to the fact that the union would be taking steps to ensure that they did not vote, nor did it contain any requests to BA for further information about those employees who were taking voluntary redundancy.

2. UNITE had not posted an alert on its website alerting those employees leaving in November and December to the importance of confirming their leaving date. On the contrary, on 12th November 2009, on union member posted a question on the union’s website, asking whether all crew that were leaving at the end of November would be able to vote in the ballot or not. A Branch Chair of the Union said “As long as you’re employed when you vote, it is ok”. This response was left on the website right until the date of hearing and this weakened UNITE’s argument that any failures were accidental. This posting could have been removed from the website, but was not.

3. There were no documents which showed that the union ever issued clear instructions to its membership, informing them that if they were leaving in the November and December, they were not entitled to vote and must not vote in the ballot. There were opportunities to include such instructions in certain documents, but these documents were silent on this important point.

4. Further, a slightly misleading text message was sent to all members on 23rd November 2009 saying “If you have left or are leaving BA, good luck and please tell [the Union] by emailing [address]. If you are staying, please remember to vote Yes”. This was found not to be a clear instruction not to vote.

On the evidence, the High Court found that there was not sufficient evidence to establish that UNITE held a reasonable belief in the entitlement to vote of all its members, or enabling it to rely on an “accidental failure” within the meaning of the Act. It was therefore not necessary for the court to consider whether such accidental failure was on a scale which was unlikely to affect the result of the ballot.

UNITE no doubt learnt from this experience. BA have not issued injunction proceedings in respect of the current dispute. Therefore we must assume that UNITE followed a more robust balloting process on this occasion, otherwise we believe BA would likely have challenged the legality of this current highly damaging strike.

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