BA Strikes and the balance of convenience
Once again, a strike has been declared void by the courts – this time over 11 spoiled ballots that were announced, but not sufficiently clearly, by Unite. Once again, we face a position where the objection has no material relevance to the legitimacy of the strike – it would not have affected the vote, it does not threaten to lead union members astray behind undemocratically elected nutjobs or hijacked strikes.
In this case, we also face a judge who has brought into play the ‘balance of convenience’ and found it to be on the side of BA. I’m looking forward to reading the judgment (which will be found here when published) and the judgment of the subsequent appeal, to see why this was relevant, since as I understand it, it will always and forever favour the employer since causing inconvenience is the point of a strike.
In his ruling the judge said: “I am unable to say it is sufficiently clear that the union took the steps required by law at the time they were required.”
And he said that the “balance of convenience” in his view required the granting of an injunction.
Despite my query in this regard, I’m sure there are perfectly sound legal grounds for ruling the strike unlawful, as evidenced in the Unite vs Metrobus appeal, where it must be agreed that Unite did not follow the necessary statutory procedures (which, I make the presumption, must have been the case here too). If one reads the text of that judgment, it becomes clear too that the judges involved also threw out the argument that to stop the strike even on narrow grounds contravenes Article 11 of the European Convention on Human Rights.
My own amateur opinion is that when considered individually, as Mr. Justice Lloyd does, the expectations of the legislation combined with the guidance in the Code of Practice can’t be seen as too onerous. But considered all together, it is too onerous. Mr. Justice Lloyd divides the grounds for the law into two sections, to ensure the democratic mandate of union members is protected, and to ensure that firms have information about the strike. My problem is that there is no test applied as to whether the information has any material effect.
In the case of Unite vs. BA, I’d like to know if the information not supplied was ever likely to have any material effect on the strike (which, as in the case of Unite vs Metrobus, the judge will likely say it wouldn’t) or on the actions or plans of the employer (which in the above case was not tested, and which, one expects, will not be tested in the recent case either). Mr. Justice Lloyd simply says that he believes it to be reasonable that employers are supplied with the detailed breakdowns provided for in the 1992 laws, the 1993 and 2004 amendments and the Code of Practice.
When it comes to, for example, an discrepancy of ten people in a count of 776, which was one of the errors in the above case on which grounds Metrobus successfully applied the courts for an injunction, there can be no grounds for asserting that these figures matter. Stopping a strike – or interfering with the actions of any part of civil society – on the grounds of such technicalities simply makes an ass of the law. Whether or not it is the case in law, logic is on the side of Unite – and, when the judgment is available, I expect it will be in the case of Unite vs BA.
What does bug me is that Willie Walsh and his goons have been been outrightly vindictive when it comes to targeting those people involved in the strike – of which fifty have been suspended. Management’s refusal to reinstate the privileges many of these staff have earned through years of service, because they’ve been on strike, is only stoking up anger amongst workers. This is the third ballot to be carried through with a resounding majority. Now there will be a fourth.
In the meantime, when strikes can be prevented by the courts when even the opposition legal team can’t find one employee who didn’t know the result of the strike ballot, this article – while a joke – looks increasingly like it may become a reality. It is, after all, the fear of such a move which prompted the government to concede Taff Vale in the early part of the 20th Century. And it is an unlawful move I wholeheartedly support. Or, as LO asks with tongue firmly in cheek, should we re-run the election instead, for the same degree of accuracy?
A good article, but fails to address a couple of fundamental points. The first is that, despite being a well-funded, highly professional organisation Unite – on multiple occasions – has been unable to conduct a ballot to the letter of the law. The second is that whilst the reliance of BA on such a technical, trivial point, which I agree had no fundamental bearing on the outcome of the ballot, must have brought an ironic smile to the faces of both parties. For too long Unions have relied on technical, minor procedural infringements in company processes to spare their members from legitimate disciplinary proceedings; how ironic it is that they have been found wanting in a similar vein.
From a (very) quick reading of Lloyd LJ’s opinion it seems there is a test of material effect, which is why he disapproves the trial judge’s conclusion that the failure to give full numbers was in and of itself fatal.
Lloyd seems to make the decision primarily on the failure to comply with the duty to notify the employer of the result of the ballot as soon as reasonably practicable.
If that is the duty implied by the statute then failure to meet it is prima facie tortious (as the whole point of the act is to make the union immunue from what would normally be a tort). Whilst one could still question whether or not it mattered to the employer’s preparations, the duty is by definition not too onerous.
Having not seen the judgment for the recent BA case, and therefore speculating wildly, it may be that Unite have a reasonable chance at appeal.
The judge does indeed mention the failure to notify the employer as soon as reasonably practicable, and points out the clear error the union made in assuming that they were only under obligation to inform the employer once they had actually made the decision to set a date for the strike (or so I understand it from the text of the judgment). But here too there should surely be a material effects test?
As an aside, the point of the act was not to make the union immune from what would normally be a tort – this is a right accorded to unions for decades. The point of the act was recodify this right with more stringent stipulations on the circumstances by which union actions would continue to possess their immunity. Our difference here is merely one of emphasis, but with this in mind, could you explain why the duty implied by the statute is thus ‘by definition’ not too onerous?
Mark, you are correct in that Unite, a highly professional body, has been unable to conduct a ballot to the letter of the law. To that I would simply say that democracy is a messy business – as has recently been proved by our national elections. But if the democratic outcome of the ballot is not in dispute, nor the necessitated response on the part of the company affected, then no procedural matters should be permitted to get in the way of a strike.
As for your second ‘fundamental’ point, I fail to see the relevance of your point about unions using technicalities to help employees to escape disciplinary matters. Employers are just as apt to use technicalities to victimise trade union members, or staff generally, and to escape judgment at tribunals. And their efforts are usually much better funded than those of the unions. A few errant staff given the benefit of the doubt is small consideration against this.
1. Re the right to strike and tort I was taking it from Maurice Kay LJ at para 118.
2. The duty in the statute to inform the employer as soon as reasonably practicable – it can never be too onerous to do something that is reasonably practicable. Judges often say things like “It cannot be reasonable to expect x to do y – y would be far too onerous.’
3. In terms of when the duty arises it seems to arise as soon as is reasonably practicable after the result is known see para 73. As to why there shouldn’t be a material effects test…I’m no expert on this area at all, but analogising from general tort, of which I know a little, the act of walking out of work would be a tort but for the statute, (Maurice Kay 118), the statute imposes various duties which have to be fulfilled to gain its protection.
Whether there should be a material effect test is for parliament, and with my lawyer’s hat on I’d decline to comment. At a guess though: without the act the strike would be tortious, therefore the act is a concession to the employees, as such it is not unreasonable to say that the union has to jump all the hoops to gain the protection. It would be difficult for the Union to rely on the delay as not being material as they would have no way of knowing whether it would be or not. i.e. at the time of the delay they could not make the decision to delay with that justification in mind.
Sorry that is unclear.
Looks like the materiality test won the day (possibly).