Employment Law Advocates

As is now being widely reported, the Unite union has won its appeal to the Court of Appeal against the injunction obtained by British Airways preventing strike action. Unfortunately, the media coverage of the legal reasoning itself has been slight, which is a shame for a case that has the potential to be extremely important. There had been a suggestion that the Court of Appeal might distinguish Metrobus v Unite, an earlier case which said that the statutory provisions requiring unions to inform members and employers of the results of a strike ballot are compatible with Article 11 of the European Convention of Human Rights.

The early indications are that the decision does not go this far. According to an article on the Bloomberg website, Lord Justice Judge, in the majority, stated that “BA cabin members are highly computer literate. They use the internet on a daily basis.” This suggests a finding that, in posting the statutory information online, Unite had taken “such steps as are reasonably necessary to ensure that every relevant employee is informed”, as required by section 231 of the Trade Union & Labour Relations (Consolidation Act) 1992, notwithstanding the fact that they had not provided all of this information in e-mails to its members. This is defensible on a natural reading of the section, without the need for any consideration of human rights.

There is potentially another problem with the decision below, which could also be of significance for future cases. Injunctions are normally governed by the principles in the case of American Cyanmid v Ethicon, in which an applicant only has to show that there is a “serious question to be tried”, something that is very easy. However, for disputes about industrial action, this is modified by statute (section 221 of TULRCA) so that the merits of the defence brought by the union must also be considered. In this case, it appears that the judge believed that Unite had to show an overwhelming case, a questionable proposition, and granted an injunction purely on the basis that the case of British Airways was arguable, which is far from sufficient.

What is clear is that, subject to human rights, there are no grounds for saying that the breach in question, failing to quantify the 11 spoiled ballot papers, is too small to prevent an injunction from being granted. Had no steps at all been taken to provide this information, the union would unarguably have failed in its case. A breach of the balloting requirements can be disregarded if it results from a small accidental failure but there is no equivalent principle for a breach of section 231 and, as a result, the question of whether TULRCA is disproportionate and, therefore, is incompatible with the Human Rights Act is likely to remain.