Strike up

Everyone has an opinion on the BA cabin crew strikes. That opinion can be shaped by many things '“ maybe it depends on which side of the workplace you find yourself or, perhaps, on your politics. The press has made a great deal of mileage writing about the long-running dispute, which has captured the public's imagination by preying on their fears that their hard-earned holidays will be ruined. But what does it all mean for employment lawyers?

Union rights and the right to strike have been blowing in the direction of the prevailing political wind since the 1970s. Union power then was at its highest, coupled with liberal regulation. Later, the Thatcher years saw that union power greatly reduced, with the right to strike made subject to stringent controls. Union membership has diminished since then and, after New Labour's 1997 victory, a 'middle way' was sought. While changes such as compulsory recognition of unions by employers were finally introduced, the law on strike action remained as it was. I believe this is part of the problem.

The middle way has pleased no one; employees feel cheated of rights to freedom of association never returned by New Labour and employers feel swamped in the legislative red tape introduced by that government to increase individual employment protection in an indirect attempt to make up for the lack of collective rights. And so we find ourselves in an era when the approach to strike action by employers has changed and the BA cabin crew action is a case in point.

Tough tactics

BA has sought to be tough and unyielding in its negotiations, based on what it would argue are very sound business reasons. There is now much pride invested in this dispute by both senior management at BA and the top brass of Unite the union, with neither wanting to appear weak. The problem with BA's tough tactics, however, is that it makes strike action more likely, meaning that legal challenges quickly become its only option despite all the unwanted press attention and fallout that such a bitter industrial dispute might generate.

BA's use of the legal system to avert strike action is not the only example of this high-risk and aggressive strategy. The recent cases involving EDF Energy, Jarvis plc and culminating in the RMT's challenge of English law being incompatible with article 11 '“ and, therefore, with European law '“ highlight similar approaches by other major employers. In October 2009, EDF Energy Powerlink Limited was granted an injunction restraining RMT members from taking industrial action because the notice of ballot had not sufficiently particularised the job descriptions of the members who were to be balloted; a case where, much like the BA dispute, the challenge to the strike was on technical grounds. It has been noted that the very provisions relied on by employers to undermine the validity of the procedure used in obtaining the strike votes were actually intended to protect the rights of the union members, and, one could argue, are being used for a purpose they were not intended to serve. The RMT argues that the safeguards and restrictions on the right to strike are the most stringent in Western Europe and in May of this year launched their attack on UK legislation in the European courts. We are still awaiting the outcome of this case but, if incompatible, legislative change may well be necessary.

The 'illegal strike'?

In December 2009, the newspapers ran the exciting news that the High Court had granted an injunction against the BA strike. This is part of a strategy on the part of employers to use the courts to prevent strikes occurring to allow either tough negotiation '“ or none at all '“ to follow.

When the injunction was granted, the press liberally used the phrase 'illegal strike'. However, the High Court's decision did not, and could not, have dealt with the main issue in the dispute itself. The High Court could not ask itself if it were justified for the workers to call a strike for this particular grievance, since that would undermine employees' rights to freedom of association as set out in article 11 ECHR. While Mrs Justice Cox may have been unhappy that BA workers were planning to walk out over Christmas, she could not prevent them from striking had the ballot been valid. Strikes attract immunity from liability which has existed since 1906 and is currently in the Trade Union Labour Relations (Consolidation) Act 1992. Because of that, her discretion was limited to a consideration of whether the ballot had met all of the stringent requirements required of it. Since some of the workers balloted had already accepted voluntary redundancy, the ballot was invalid despite 92.5 per cent voting in favour of a strike.

Not a reasonable step

Fast forward to May and we have history repeating itself. Another ballot, another High Court injunction. This time, however, the technical knock-out was how the union informed its members of the result of the ballot, which, coupled with the 'balance of convenience' test from the well-known American Cyanamid principles (American Cyanamid v Ethicon [1975] AC 396) meant Mr Justice McCombe felt bound to grantthe injunction.

Was this a victory for BA? No. The Court of Appeal by a majority overturned the decision, with the Master of the Rolls, Lord Neuberger, dissenting, since it appeared that the main issue of 'non-notification' had been 11 spoiled ballot papers. The Court of Appeal was at pains to state that its judgment was not concerned with the overall rights and wrongs of the dispute, a matter they had no power to consider. What they did decide, however, is that the union had done what was 'reasonably necessary' to notify its members of the result in accordance of section 231 of the 1992 Act; in other words, using the failure to notify all members of a mere 11 spoiled ballots was not a reasonable step to have been expected of the union. In fact, the Lord Chief Justice, Lord Judge, remarked that the ballot 'was carried out impeccably'.

The most important point in this judgment is that the Court of Appeal has made its views on the tactic of using the courts to deal with strikes very clear. In the words of Lord Judge: 'We must all hope for a speedy and fair resolution of this dispute. It must be resolved by negotiation. Legal processes do not constitute mediation. They often serve to inflame rather than mollify the feelings of those involved.'

The impact on unions and employers

Unions must ensure they are on top of the paperwork '“ never before has the old adage 'the devil is in the detail' been more true. Unions must maintain completely up-to-date lists of the names, addresses and workplace details of their members. They must also ensure they remove former employees from lists immediately. Never mind the Court of Appeal's decision in May '“ unions must expect ballot procedures to be scrutinised and must be able to show they have complied impeccably with the guidelines. Employers faced with strike action may take a leaf out of BA chief executive Willy Walsh's book, so nothing can be left to chance, or unions are giving technical 'knock-out' points to the employer.

Employers may wish to use the might of the courts to quash strike action just as BA has done. However, Lord Judge's warning is clear: the courts remain the last resort and industrial relations matters are best solved by a combination of conciliation, mediation and negotiation. Employers must pick their battles, ensuring technical points are chosen carefully. An overly technical approach is likely to result in the 'reasonably necessary' requirement being given a more proportionate flavour.

Lawyers for either side will also need to be vigilant, with one eye on the detailed balloting requirements and the other taking in the prospects for conciliation. Advisers may best serve the interests of their clients by recommending discussion and negotiation in a bid to avoid going to court at all. Confidential discussions leading to a mutually acceptable compromise are far more appealing than crippling costs and a damning public judgment from the judiciary, an adverse result not in the interests of either employers or unions.

What next?

Crew have voted again in favour of a further ballot for industrial action, albeit with a significantly reduced turnout this time around. The remaining issue of travel perks and loss of status of striking cabin crew members remains unresolved and could yet lead to more strike action. Interestingly, a dispute between BT plc and the CWU union has been resolved by conciliation in early July, following the CWU abandoning its strike ballot for fear that the formalities had not been properly complied with.

So, is the current legislation adequate? The current administration insists it believes so, having officially announced on 22 June it has no plans to change its current strike legislation, despite Lady Justice Smith of the Court of Appeal stating the current law is 'not well drafted in my view'. However, rumours are circulating that, to facilitate proposed public sector cuts, the government has been holding 'secret meetings' to discuss making the balloting rules even more stringent. Given the flitting between the High Court's decision of invalidity and the Court of Appeal's more purposive approach, future major industrial disputes are likely to suffer from a lack of certainty. More legislative guidance to clearly define the meaning of the phrase 'reasonable' in the context of ballots and their conduct may be useful but whether this is likely to be forthcoming from the current administration is unclear.

I fear that the current position will lead to more dissatisfaction among both employers and employees. Should the RMT union succeed in Europe, the liberalisation of approach that would inevitably follow would please unions but will simultaneously feel like an imposition by the EU to both employers and the government. A clearer position as a result of home-grown consideration is more likely to be accepted by both parties. It seems a shame that progress on this issue is unlikely to come at a time of such economic strife when strike action becomes all the more likely in the face of redundancies and cost-cutting programmes by many businesses. The High Court, it appears, can expect more injunction applications in the future and not the conciliation it so clearly favours.