BA's threat to withdraw travel discounts from striking employees is intimidation, according to the trade union, but fair tactics according to BA. Aside from what this says about the state of industrial relations within the company, it raises interesting legal points:
- can the employees insist on the travel discounts as a contractual right?
- does strike action give the employer the right to withhold pay or benefits?
- is it lawful to take punitive action such as this?
The trade union says that there is a longstanding custom and practice of giving the travel discounts to employees and therefore that they have become a contractual right. The law in this area is well established: a benefit may become an implied term of individual contracts of employment if it is 'reasonable, certain and notorious'. This means that the employer must have granted it in a consistent way over a sufficient period of time, publicised it to employees and not granted it as a result of the exercise of any discretion.
There are other ways that a practice can become part of a contract of employment:
- if it is contained in a collective agreement and is deemed to be suitable for incorporation into individual contracts of employment - this may be the case here, although the details have not yet been made public;
- if it is reasonably necessary for the operation of the contract - this is unlikely to apply here.
However, whether the travel discounts have contractual status or not is less significant in the context of industrial action.
The effect of strike action
In simple terms, if an employee withdraws their labour for a day to go on strike, they are not entitled to be paid for that day. So BA can withdraw pay and benefits that relate to non-performance by the employees of their contracts of employment.
Behind this simple answer, however, are some hotly debated issues of employment law, namely whether going strike is itself a breach of contract or a termination by the employee of the contract of employment. If it is a breach of contract then the employer can treat the relationship as being at an end. If the strike actually terminates the contract then the parties are free to negotiate new terms, which may or may not include past benefits.
But BA's threat is not just to withhold pay for strike days, it is a threat permanently to withdraw a benefit from all strikers. Is that lawful?
The answer is probably, but not certainly, yes. In the UK, the law protects employees from dismissal on the grounds of taking industrial action. Interestingly, however, it does not protect them against other types of detriment that they suffer for taking action.
They are protected from other detriments only if the employer imposes them because the employees are participating in, or taking time off for, trade union activities. Industrial action does not normally count as a trade union activity for these purposes.
There are some deep and unresolved legal issues behind this aspect of the BA-Unite dispute. However, being on strike does not give the employees any immediate protection from the withdrawal of benefits, nor does it give the trade union easy grounds on which to bring a claim on their behalf.