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