British Airways strike and human rights – The union
strikes back
June 21, 2010 by Adam Wagner
British Airways Plc v Unite the Union [2010] EWCA Civ 669 (20 May 2010) - Read judgment
Last month Unite won their appeal against an injunction obtained by British Airways in the
High Court preventing their members from striking. The judgment has some potentially
important implications for human rights, and in particular the right to free assembly.
The strike has already been the most damaging in British Airways’ history and they airline are now
preparing for another round of strikes with Unite threatening to ballot its members for a third time.
Today the Confederation of British Industry (CBI) called for a change in the law to make it harder to
bring strikes. Amongst other things, they are lobbying for the number of workers who need to agree to
a strike before it can take place to be raised to 40%, which they say would ―prevent strikes going
ahead based on a relatively small turnout of particularly active members.―
Whilst trade union rules may seem a little dry as compared to the drama and intrigue which tends to
characterise large-scale strikes, in fact the requirements of trade union law have been the focus of a
run of important court decisions relating to British Airways.
Unite have argued, with recent success, that an overly strict enforcement of procedures is an
unnecessary and disproportionate restriction on workers’ right to strike. British Airways have said that
the rules are there to protect companies and their customers from unnecessary industrial action.
The result is that these seemingly dry technical requirements are now taking centre-stage in industrial
disputes. But are the courts letting down employers in failing to apply them properly?
Rules too strict for the Court of Appeal
Until the British Airways case reached the Court of Appeal (the second highest appeal court), the
airline had experienced a run of successes in obtaining injunctions against strikes because unions
had breached the strict requirements of section 231 of the Trade Union and Labour Relations
(Consolidation) Act 1992, the requirement to inform members of the outcome of strike ballots.
In May the High Court granted an injunction for the second time in 6 months against a strike planned
by British Airways cabin crew. The injunction was granted on the basis of a technical breach of trade
union rules. They had not properly informed their members of the outcome of the strike, even though
the strike ballot itself was carried out properly and action was overwhelmingly approved by BA cabin
workers.
The Judge ruled that Unite did not tell its members about the number of spoilt ballot papers in the last
dispute, and that as such it was arguably in breach of the which states that as soon as is reasonably
practical, a trade union must inform all those entitled to vote in a ballot of, amongst other things, the
number of spoiled voting papers. Unite appealed to the Court of Appeal.
It took an unusually long time for the full Court of Appeal judgment to be released (around a month),
which may have been an attempt to avoid influencing ongoing negotiations between the airline and
union. However, these are still deadlocked and a number of walk-outs have already taken place,
affecting thousands of summer holidays.
Human rights in play
The right to strike forms an important background to this dispute. Article 11 of the European
Convention on Human Rights provides that ―Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the right to form and to join trade unions for the
protection of his interests.‖
As is common with Convention rights, the right can be restricted if that restriction is proportionate, with
the test of proportionality being that it is ―necessary in a democratic society, in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of health or morals
or for the protection of the rights and freedoms of others‖.
Good arguable claim
The context of applying for an interim injunction is important: an applicant need only show that they
have a ―good arguable claim―; the hearing is not intended to represent a full hearing of the merits of
the case (see American Cyanamid Co. v. Ethicon Limited [1975] AC 396).
The Court of Appeal ultimately decided to reverse the decision of the High Court, and to allow Unite’s
appeal. The three judges who ruled on the case were the two highest judges in the court – the Lord
Chief Justice and the Master of the Rolls – as well as Lady Justice Smith. The judgment was not
unanimous, however. The Master of the Rolls, Lord Neuberger, dissented.
The focus of the Lord Chief Justice’s ruling was on whether the technical breaches of the rules by
Unite were enough to render the strike unlawful. He began by putting the issue the context of what
was otherwise as very popular strike action:
The ballot itself was carried out impeccably in accordance with the statutory requirements. 11,691
ballot papers were distributed to eligible voters. The process was scrutinised by an independent
body… the vote in favour of strike action was overwhelming… 11 of the ballots were spoiled. 7,482
votes were cast in favour of industrial action with 1,789 cast against. There is, therefore, no doubt that
as a result of a properly conducted democratic process …
The conduct of the strike ballot was not the issue, however. Rather, it was the requirement for Unite to
notify its members of the outcome which proved fatal in the lower court. The Lord Chief Justice
continued that Mr Justice McCombe’s judgment was not based on a ―judicial whim‖, but ―he was
bound, as we are bound, not by the democratic process conducted by the Union, but by the Act of
Parliament which governs the right of employees to strike and to take industrial action against their
employers.‖
Some had criticised the High Court’s judgment as being too technical, given the clearly overwhelming
support of the workers for the strike. This was ultimately the focus of the Court of Appeal, who looked
for ways of making the rules a bit less strict. This was done by comparing them to ballot results,
where there is some flexibility:
if the result of a ballot itself is unaffected by accidental, small scale failures in the process, it is difficult
to see why minor failures about the provision of information about the results to the Union members
should undermine the entire process
Ultimately, the Lord Chief Justice reached for a more practical and ―reasonable‖ application of the
rules, and that ―consistently with the deployment of the concept of reasonableness in section 231, that
the Union is not required to prove that literally every eligible member was personally sent his or her
own individual report of the full results. A test of such strictness would be unrealistic and, as it seems
to me, McCombe J came very close to applying it when he came to his conclusion in this case.”
Applying the ―good arguable claim‖ test which is central to summary judgment applications, he found:
In my judgment, if this case went to trial the high probability is that BA would establish that the section
231 process could have been better, but there is a high probability that the Union would establish that
the process was sufficient. I should therefore allow the appeal.
He finished by appealing for reason and the application of basic principles rather than legalistic
stricture:
What I do, however, question is whether as a matter of principle it can be appropriate that even a
complete failure to inform the Union members — not the employers — of the fact that an infinitesimal
proportion of spoilt ballots were returned which could have had no possible bearing on the outcome of
the ballot could leave the Union liable in tort for calling a strike which had the support of the vast
preponderance of its members. At the risk of repetition, it does indeed seem curious to me that the
employers can rely on a provision designed to protect the interests of members of the Union in order
to circumvent their wishes
Courts should apply the rules, not decide them
Lord Neuberger disagreed with the other two judges. He effectively said that the rules are eminently
clear, and should be complied with.
In my judgment, these provisions are clear, and the court should proceed on the basis that they mean
what they say. Unless the court is satisfied that, as soon as reasonably practicable, the trade union
has taken steps which are reasonably necessary to ensure that the four pieces of information
identified in section 231 (a) to (d) (―the section 231 information‖) are given to all persons entitled to
vote then the ballot would not comply with section 231. It is, in my view, impermissible for the court to
dispense with the requirement that the requisite steps are taken to provide one or more of four items
of information when the legislature has said in terms that requisite steps must be taken to ensure
each such item has to be provided.
He said that the court had effectively acted outside of its powers in allowing Unite to avoid the strict
application of the rules: ―it is simply not open to the court to rule that the person is entitled to that
benefit where the specific information has not been given, or the specific step has not been taken.‖
He accepted that the rules could be seen as ―surprising in their strictness‖ but nevertheless it was not
for the court to decide whether or not they were unnecessarily strict; rather, it was the court’s job to
apply the rules and Parliament’s to set them.
He argued that there were numerous ways – through email, text and even Twitter – by which Unite
could have communicated the section 231 information, but it did not do so, and as such ―the
conclusion must be that Unite did not, as I see it at the moment, take reasonable and prudent steps to
ensure that all cabin crew members were given the section 231 information as soon as reasonably
practicable.‖
The right to strike upheld, for now
The human right to free assembly can only restricted in limited circumstances, one of which is when
an assembly impinges on the ―the rights and freedoms of others”. This delicate balancing act – the
rights of workers to use their collective bargaining power, versus the rights of businesses to not be
held to ransom – has informed the British Airways v Unite case.
Ultimately, the two-judge majority looked to a ―reasonable‖ interpretation of the statutory provisions.
Some will argue (as Lord Neuberger did) that this falls outside of their powers; simply, if Parliament
set the rules to be strict, then it is not for the courts to say otherwise, whether they consider it
reasonable or not.
The Lord Chief Justice asked, legitimately, whether it can truly be said to be the will of Parliament that
rules instituted to protect union members can be wielded against them by legalistic employers.
However, BA and other employers will no doubt respond that the rules are there to protect the rights
of employers, and the general public, too.
It is all very well for the CBI to argue for ever stricter rules in light of the increasing economic pressure
on employers, but if the courts are unwilling to apply them, there may be more strikes to come
regardless. The Supreme Court may ultimately have to decide on where the balance of rights must
lay.