BA fails to obtain injunction to prevent strike action by pilots29/10/19
In BA plc v British Airline Pilots’ Association, the Court of Appeal has dismissed a claim by BA that the pilots’ union (commonly known as BALPA) was in breach of its duty to notify BA of the categories of pilots it had balloted for strike action.
In order for strike action to be protected, a union must meet the conditions for statutory immunity laid down in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A). One of these conditions is that the ballot notice provided to the employer by the union must state the categories of employee to be balloted, and the number of employees in each category (section 226 TULR(C)A). In its ballot notice, BALPA provided a list of the ranks of pilots to be balloted. BA argued, however, that this was not sufficient because, among other things, the notice did not state to which fleet the pilots were assigned. Pilots are assigned to either short-haul or long-haul fleets, and could not transfer to another fleet without receiving training as each fleet used different aircraft. BA argued that without this information it was unable to plan to deal with the strike and therefore the ballot notice did not comply with requirements of section 226.
The High Court dismissed BA’s application for an injunction to prevent the strike action. BA appealed to the Court of Appeal.
Court of Appeal decision
The Court of Appeal upheld the decision of the High Court and dismissed BA’s appeal. BALPA had argued before both courts that a previous version of section 226 had expressly required the union to give the employer “such information in the union’s possession as would help the employer to make plans…”. However, the reference to making plans did not appear in the current version of the legislation, meaning that it should no longer be held to be the purpose of the notification requirements. The Court of Appeal found that the removal of this wording did not change the underlying basis for the legislation – were it not to enable an employer to make plans, the notification requirements would be no more than a “mere technical hurdle” for unions to clear. However, the amendments to section 226 achieve a balance between notification requirements that are capable of being clearly and certainly applied by unions, without creating too much of a burden or effectively creating a trap to make it more difficult to call industrial action.
The Court of Appeal also noted that the starting point is that the word “categories” is not defined in the legislation, but is a broad and flexible term. An employer will almost always be able to complain that more detailed information or a different method of categorisation could be used. The approach must be an objective rather than subjective one – was the information provided sufficient to meet the statutory requirements? In this case the Court of Appeal held that it was. In fact, the categorisation used by BALPA was the established way of referring to pilots used by BA and the pilots’ contracts of employment did not specify the fleet to which they are assigned. Therefore in this case the statutory requirements were met and BA’s claim for an injunction failed.
What to take away
This decision will be welcomed by unions as it emphasises that unions are not required to use a specific category of jobs in a ballot notice, and that they have a certain amount of discretion to determine what categories are to be specified. However, the Court of Appeal’s judgment also makes clear that this is an objective decision taking into account the particular facts. Whether or not the information provided will enable the employer to make contingency plans remains a valid consideration, despite the amended wording of the legislation. It is open to employers who believe that unions have not met this requirement will be able to seek injunctive relief before the courts.
For further information on how this issue might affect your organisation, please contact Paul McFarlane, Chloe Edwards or Andrew Uttley.