Strike injunction refused because ballot notification complied with legal requirements

Background

Trade union officials (and others) organising industrial action are protected against legal action by the employer in certain circumstances, under provisions contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). To qualify for this protection, the organisers must be acting in contemplation and furtherance of a legitimate trade dispute. They must also comply with detailed rules and requirements on balloting under TULRCA, including giving proper notice to the employer.

This case focused on certain particular specific requirements under section 226A of TULRCA (headed “Notice of ballot and sample voting paper for employers”). This provision sets out, among other things, that the notice to be given to employer should include:

• a list of the “categories of employee” to which the employees to be balloted belong; and
• the number of employees in each of those categories.

Facts of the case

In June 2019, the British Airline Pilots’ Association (“BALPA”) informed BA that it intended to hold a ballot on discontinuous strike action involving 3,833 employees. The notice categorised the employees according to their rank - for example, “captain,” “training co-pilot”, “senior first officer” etc - with the number of employees within each rank also listed.

BA applied to the High Court (“HC”) for an interim injunction to prevent BALPA from calling on its members to take the industrial action. It contended that BALPA’s notice did not sufficiently categorise the employees and should have included more detail, such as the fleet to which the pilots were assigned. This meant, BA said, that it could not adequately plan for any industrial action.

Rejecting BA’s application, the HC ruled that BALPA’s chosen categories complied with the notification requirements under section 226A of TULRCA. The HC noted that the requirement for the notice to provide “such information…as would help the employer to make plans” came from a previous version of TULRCA and had been removed for reasons of clarity and simplicity. The HC therefore concluded that the need to help an employer plan to lessen the impact of any industrial action was no longer a primary purpose or even a purpose of the statutory provision.

Court of Appeal’s decision

BA appealed to the CA, where the arguments focused on the legislative policy behind the TULRCA provisions. The CA accepted that the underlying policy of the notification requirements was to give the employer fair warning of strike action, so it had a chance to seek to persuade employees not to take part and make contingency plans to protect its business. While the removal of the “making plans” wording meant that policy reason was no longer the “yardstick” by which the content of the notification should be judged, the requirements should not be a “mere technical hurdle” for unions.

On the other side of the coin, the CA also accepted BALPA’s argument that there was another, important purpose behind the legislation of establishing notification requirements that could be clearly and certainly applied by unions without creating too great a burden on them. There needed to be a balance between both policies.

Turning to the definition of “categories” in section 226A, the CA concluded as follows:

• The term is broad and flexible and should be neither exclusively nor narrowly defined. What amounts to a “category” will be affected by the facts and circumstances of the particular case, and should be assessed in a common sense and practical way in light of the twin policy objectives of the legislation.
• General job categories will be sufficient as a starting point, but in some cases these will be too uncertain or imprecise to address the notification requirements.
• An objective approach should be taken in each case. An employer will almost invariably be able to complain that there should be “more specificity” or a different method of categorisation, while a union can contend it has met the notification requirements by using loosely described categories.

Applying this analysis to the facts of the case, the accepted BALPA’s evidence its members were categorised by rank in its database, and this reflected the established way of referring to pilots by BALPA, BA and the employees themselves. BA also used rank as a measure of seniority in deciding employee pay levels. The CA concluded that, even if BALPA could have provided more information, its method of categorisation was not improper or useless and was sufficient to enable BA to plan ahead. Accordingly, notification of rank alone was sufficient to meet the statutory requirements.

Implications

The CA’s ruling provides useful clarification for unions and employers when they are respectively drafting and supervising industrial action ballot notices.

The most interesting part of this judgment is probably the CA’s court’s focus on BALPA and BA’s normal way of categorising those involved. This appears to be consistent with the government’s Code of Practice: Industrial action ballots and notice to employers, and tipped the scales in favour of the union in this particular case.

Employers should be cognisant of how they normally categorise their workforce, as a court will clearly take account of that when applying the ballot notification rules. They may wish to consider highlighting their preferred “categories” of identification - something that BA had not done in this case. Caution should be taken when doing this, however, as courts may be influenced by substance over form.

British Airways plc v British Airline Pilots’ Association – judgment available here