BA v Unite rumbles on

The much-publicized dispute between British Airways plc and Unite regarding changes to the number of BA cabin crew on long haul flights and a proposed 2-year pay freeze continues to rumble on. BA and Unite are currently in the High Court arguing over whether BA’s decision to reduce cabin crew numbers was a contractual change requiring negotiation with the Union or a matter within BA’s sole discretion. In the meantime, Unite’s second ballot of its members for a strike is due to close on 22 February, with 1 March as the first possible day for strike action if the ballot result supports strike action. On Friday 12 February it was reported that BA has suspended 15 crew members for the alleged intimidation of volunteers training to work as stewards in the event of strike action.

Unite’s  second ballot has been required as the result of the High Court’s decision on 16 December 2009 to grant an injunction preventing Unite from proceeding with a 12-day cabin crew strike over the Christmas period on the grounds of its failure to comply with the statutory rules governing balloting members and notifying employers. Having read Mrs Justice Cox’s judgment, I can’t help but feel that some of the press commentary in its immediate aftermath was a little surprising. Taking a couple of examples from the day after the judgment, Seamus Milne in the Guardian lambasted it as “blatantly political”, whilst at the other end of the spectrum the Telegraph questioned whether Unite’s outrage was “synthetic” and asking whether its failure to appeal the judgment indicated that the court’s decision had let Unite off the hook.

Given the evidence before Cox J at the hearing, however, it is not surprising that she came to the conclusion that she did nor that there has been no appeal against her decision. In order to secure the necessary statutory protection against claims for inducing a breach of contract, when a trade union ballots members on strike action, it has to comply with certain statutory requirements. Entitlement to vote in the ballot must be given to “all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part… and to no others.” The union must notify the employer at least 7 days before the ballot of the numbers of those members who will be balloted. The figures must be as accurate as is reasonably practicable in the light of the information in the possession of the union but small accidental failures can be disregarded.

BA’s challenge to Unite’s procedures was based on the fact that Unite knew that approximately 1,000 of the 10,000-odd employees that it balloted had accepted voluntary redundancy and would not be employed by BA at the time of the strike. Unite tried to persuade the Court that it had done all it reasonably could to identify those employees but (partially as the result of BA’s alleged instransigence) had not been able to do so at the time of the ballot.  Although there were other factors that played their part, the key point for Cox J appears to have been the lack of effort by Unite to notify employees taking voluntary redundancy that they were ineligible to vote or to ask those employees if they were leaving before the strike. In the absence of such steps, Unite were unable to show that they complied with the requirements of the legislation.

It is easy to sympathise with the argument that the inclusion of the ineligible employees made no difference to the outcome of the ballot when approximately 92% of voters, on a turnout of around 80%, supported the ballot.  However, Unite would have also had to persuade the court that its inclusion of those employees in the ballot was “accidental” in order to receive the statutory protection in respect of the ballot itself, which it failed to do. Having been blocked by this technical requirement though, has anyone been surprised by Unite’s decision to hold a second ballot given the high level of support in the first? In addition, is there a valid argument that  our legislation should be flexible enough to allow procedural errors that genuinely could not have affected the outcome of a ballot to be disregarded?  Perhaps your preferred answer to that question might depend on which side of the business and political fence you sit…