BA dispute update
In response to the recent strikes by BA, Duncan Snook, Employment Law specialist at Davies Arnold Cooper LLP summarises the status quo..
Unite claims that it should have been consulted in respect of the contractual changes implemented by BA to cabin crew contracts in November. Whilst BA dispute they were obliged to consult, a contract can only be amended with the agreement of the parties, or the employer, having recognised a union, agreeing the changes with a union.
If the employees within the bargaining unit at BA take part in any proposed strike, they may be in breach of their contracts of employment. However, if they were dismissed by BA for taking part in the intended strike, and Unite had followed proper procedure and called a ballot, the dismissal would be unfair if it took place in the first 12 weeks after the employees started taking part in the industrial action and, depending on the circumstances, may be unfair if it takes place later.
BA need not have paid employees for the period they were intending to be on strike. In such circumstances, an employee could not bring a later claim for an unlawful deduction of wages in the Employment Tribunal if the industrial action is the reason for the deduction.
In an effort to prevent the 12 day strike going ahead on 22 December, BA applied for a high court injunction. Whilst BA and Unite are in talks in an attempt to resolve the matter, BA pursued an injunction on grounds that the ballot taken by Unite was unlawful, arguing Unite wrongly counted votes of ex-staff in the ballot. The High Court has now granted BA's injunction, although we understand that Unite may appeal this decision and/or may seek a fresh ballot over strike action.
In order to avoid liability for inducing employees to strike, Unite should have complied with the ballot requirements set out in the Trade Unions and Labour Relations (Consolidation) Act (TULCRA). Unite should have ensured that BA received a "notice of ballot" not later than the seventh day before the opening day of the ballot containing a list of the "categories of employee" to which the employees entitled to vote in the ballot belong, a list of the workplaces at which those employees work, the total number of employees concerned and an explanation as to how the figures were reached.
In an earlier case this year, Unite were found by the Court of Appeal to have failed to comply with its obligation to inform the employer of a ballot as soon as reasonably practicable and had failed to provide sufficient information to the employer about members who were proposing to participate in the strike (Metrobus Ltd v Unite the Union).
Unite must ballot all those union members within the bargaining unit who they propose to call and who are entitled to vote, and no others.
Had the High Court regarded the balloting errors made by Unite as accidental or on a scale which was unlikely to affect the result of the ballot, then BA's application for an injunction would have been unlikely to be granted and the strike would have been allowed to proceed. In the unlikely event that Unite choose to breach the injunction, BA may then pursue compensation.
18 December 2009
Created on: 18-Dec-09 09:51
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