An airline has failed to convince the UK Court of Appeal that plans for a strike by its pilots should be halted because of alleged defects in the strike ballot notice produced by the relevant trade union. Although the airline lost its case, this landmark decision provides key guidance on the interpretation of Section 226A of the United Kingdom’s Trade Union and Labour Relations (Consolidation) Act 1992, which often functions as the last line of defence for employers upon receipt of a ballot notice.
In order to organise industrial actions such as strikes, trade unions in the United Kingdom must comply with a range of stringent conditions set out in different pieces of legislation. In the event that such conditions are not met, the strike would be effectively unlawful, with the striking individuals forfeiting their immunity from breach of contract claims that the employer can then bring against them.
One such condition is that the notice of the ballot provided to relevant employers must comply with several precise requirements that are set out in Section 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Ballot Legislation). Specifically, the Ballot Legislation requires that ballot notices must be
- in writing;
- received at least seven days before the opening of the ballot by all organisations that the trade union reasonably believes are employers of those entitled to vote; and
- save for certain limited exceptions, accompanied by various details concerning the affected employees that are as accurate as reasonably practicable in light of the information possessed by the trade union at the time.
As regards requirement (c), one key piece of information that the trade union must provide is a list of categories of the affected employees, and the number of employees per category.
In British Airways plc v. British Airline Pilots’ Ass’n , British Airways (BA) sought an interim injunction preventing members of the British Airline Pilots’ Association (BALPA) from going on strike, arguing that BALPA had failed to comply with certain requirements in the Ballot Legislation.
BA’s primary argument was that, in breach of requirement (c), BALPA had failed to provide sufficient information regarding the categories of members going on strike. Specifically, BA disagreed with BALPA’s categorisation of the pilots by rank, and alleged that BALPA should have categorised the relevant pilots either by fleet (i.e., BA’s short-haul fleet or long-haul fleet) or by job title.
Ultimately, BA argued that the information BALPA provided was insufficient to allow BA to make plans to mitigate against subsequent strike action (which, BA contended, was the purpose of the Ballot Legislation).
The English High Court, which originally heard the case, rejected this argument, observing that the term “categories” in the legislation—when given its ordinary meaning—could encompass a variety of different ways of grouping employees. It therefore concluded that unions like BALPA were afforded some discretion as to the categories they can adopt.
In addition, the High Court noted that in 2004, the UK Parliament had specifically amended the Ballot Legislation to remove an express requirement for trade unions to provide such information “as would help the employer make plans” (the 2004 Change).
BA appealed the High Court’s decision, arguing that it had erred in its construction of the word “categories” and in its interpretation of the legislative history.
The UK Court of Appeal (CoA) dismissed BA’s appeal, upholding the High Court’s ruling. It held that whether a ballot notice helped an employer to “make plans” was no longer the sole benchmark for judging a ballot notice’s compliance with the Ballot Legislation. The CoA went on to say that
- it is correct that the 2004 Change did not completely alter the rationale of the provision (meaning it remains implicit that ballot notices are to enable employers to make plans to mitigate against the effects of strike action); but
- Parliament’s subsequent amendments to the Ballot Legislation emphasise the importance of ensuring the notification requirements can be clearly and certainly applied without creating too great a burden on trade unions.
With this in mind, the CoA concluded that the courts must strike a balance when applying the Ballot Legislation to ballot notices. It therefore held that, as a starting point, trade unions must be permitted to provide general job categories (which, as the High Court held, can encompass a variety of different methods for grouping employees).
However, to prevent the Ballot Legislation from becoming a mere technical hurdle for trade unions to overcome, the CoA also held that where the nature of the industry or employer or other circumstances mean that general job categories would be insufficiently precise to allow the employer to make plans to mitigate against the strike, the trade union may be obliged to provide more detailed information.
The CoA noted that this obligation is also subject to the express caveat in the Ballot Legislation that the information supplied “must be as accurate as is reasonably practicable in the light of the information” that the trade union possesses at the time.
The CoA’s decision contains a useful analysis of a provision that often operates as an employer’s last line of defence against strike action, and reinforces the need for an employer to scrutinise a ballot notice closely to ensure that all the requirements in the Ballot Legislation are satisfied. Larger employers will also be encouraged by the CoA’s acceptance that, where ballots relate to groups of workers who may be spread across a range of establishments or sectors, trade unions may be required to provide more precise information to facilitate employers’ planning for the strike action.