Shortly before Christmas, the Unite trade union was effectively forced to call off a planned strike by cabin crew employed by British Airways. BA persuaded the High Court that the ballot for strike action had not complied with the strict rules for strike ballots.
BA obtained an interim injunction on 17 December 2009 and this had the effect of ensuring that the strike was called off.
The Union has, unsurprisingly, started over again and another strike ballot began on 29 January and closed on 22 February. We now know that the result is a mandate for strike action. No doubt Unison will make quite sure that this time it will conform precisely with the legal requirements for a valid ballot. BA, fearing the worst, is widely reported to be doing everything it can either to prevent the strike or to mitigate its effects. No doubt BA’s lawyers will be scrutinising the details of the ballot to see whether further technical defects can be found, not least because it has been estimated that strike action will cost the Company £20-£25m per day. Amongst other things it is said that the company is proposing to withdraw non-contractual perks from any cabin crew who go on strike, including in particular withdrawing the perk of being able to buy heavily discounted air tickets for private use.
Can BA legally do this? Some interesting points will arise.
Under UK law the starting point is that an employee generally has no rights against an employer who has treated him less well than others because he took part in industrial action. The position is different if the detrimental treatment by the employer is sufficiently serious to amount to a fundamental breach of an important contractual term (such as the implied term of “trust and confidence”) and is so serious that the employee would be entitled to resign and claim constructive dismissal. In that situation British law gives the employee clear rights but no doubt BA will take great care to ensure that any removal of perks falls well short of that hurdle.
However that is not the end of the story. Recent judgments of the European Court of Human Rights may lead to changes in UK law. As noted above detrimental action against strikers must be of a fundamentally serious nature if it is going to provide strikers with legally enforceable rights. The European Court of Human Rights has recently suggested that this is too tough a test. In a series of cases involving Turkey and Russia it has recently indicated that it thinks the law should move on and has ruled that if an employee is treated less well than others because he or she has taken, or intends to take, part in a strike or other industrial action he or she will have a legal right to sue their employer under the Convention.
British courts must interpret UK law in a way which will give effect to the Convention and if that is impossible can issue a “declaration of incompatibility” which is likely to lead to Parliament making appropriate changes to UK law. In some circumstances it is even possible for direct applications to be made to the European Court of Human Rights.
On the face of it, this could pose a problem for BA. However the problem may be less immediately serious for BA than the notes above may suggest. This is because the UK Human Rights Act 1998 allows direct application of the Convention only in respect of the activities of public authorities and persons carrying out functions of a public nature. It does not give private citizens or companies directly enforceable rights against each other. So while the judgments of the Court of Human Rights noted above may lead to changes in UK law which might in future prevent BA taking the sort of action they may be considering against strikers, BA may currently be immune from legal action if they go ahead with their “perk removing” plans – anyway this time. But even that is not certain. The UK Courts and tribunals have shown that they are prepared to go to great lengths, even inserting words into Acts of Parliament, to ensure that they fulfil their duty to interpret UK law in a way which will give effect to the Convention.
On 19 February it became 2-0 in favour of BA when High Court Judge Sir Christopher Holland dismissed Unite’s bid to overturn the changes. Consequently, BA have the backing of the Court for the imposition of changes including freezing pay and cutting crew on long haul flights. the judge said that he took into account the airline’s financial position, saying:
“If the crew [numbers] materially and fairly contribute to the preservation of BA and more importantly for present purposes job security and pay, how can I condemn the less than extreme changes as unreasonable?”
Unite remains defiant with a spokesman stating that the “regrettable” judgment made “absolutely no difference” to the substance of the dispute with BA.