The Court of Appeal has refused an application by British Airways plc (BA) for an injunction to restrain strike action by airline pilots, thereby ruling that the trade union had provided sufficient detail as to the categories of employee to be balloted under the statutory rules.(1)
Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), trade union officials and others organising industrial action are protected against legal action by employers in certain circumstances. To qualify for this protection, 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 the TULRCA, including giving proper notice to employers.
This case focused on particular requirements under Section 226A of the TULRCA (which is titled 'Notice of ballot and sample voting paper for employers'). This provision sets out, among other things, that the notice to be given to employers must 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.
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 (eg, captain, training co-pilot and senior first officer) and listed the number of employees within each rank.
BA applied to the High Court 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 (eg, 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 High Court ruled that BALPA's chosen categories complied with the notification requirements under Section 226A of the TULRCA. The High Court 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 the TULRCA which had since been removed for reasons of clarity and simplicity. Therefore, the High Court 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.
BA appealed to the Court of Appeal, where the arguments focused on the legislative policy behind the TULRCA provisions. The Court of Appeal accepted that the underlying policy of the notification requirements was to give employers fair warning of strike action, so that they had a chance to seek to persuade employees not to participate and make contingency plans to protect their 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.
Further, the Court of Appeal 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 Court of Appeal concluded that:
- 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 are sufficient as a starting point, but in some cases these will be too uncertain or imprecise to address the notification requirements; and
- an objective approach should be taken in each case. Employers will almost invariably be able to complain that there should be more specificity or a different method of categorisation, while unions can contend that they have met the notification requirements by using loosely described categories.
Applying this analysis to the facts of the case, the Court of Appeal accepted BALPA's evidence that 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 Court of Appeal 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.
The Court of Appeal's ruling provides useful clarification for unions and employers when they are respectively drafting and supervising industrial action ballot notices.
The Court of Appeal's focus on BALPA and BA's normal way of categorising those involved is particularly interesting. It 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 the courts will clearly take account of this when applying the ballot notification rules. They may wish to consider highlighting their preferred categories of identification – something that BA did not do in this case. However, caution should be taken when doing this as the courts may be influenced by substance over form.
(1) British Airways plc v British Airline Pilots' Association – judgment available here.
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