BA strike called off after legal challenge to ballot
09 Feb, 2011
The union Unite, which represents cabin crew at the airline, balloted members in December and January for industrial action in the long-running dispute about conditions, pay and the removal of staff perks.
A vote in favour of strike action was confirmed by the union in January. However, BA lodged a challenge to the ballot with the independent body the Electoral Reform Society (ERS), which scrutinises such votes.
Tom Flanagan, employment partner at Pinsent Masons, said: “BA has persuaded the ERS that there were sufficient problems with the ballot causing the ERS to issue a qualification in its official report on the ballot.
“This creates the possibility that if the strike goes ahead, the union and the employees will not be protected against action from the employer, because the ballot is unlawful.”
As a result of this risk, Unite has declared its own ballot invalid and cancelled the strike. The union has said it does not know what issues BA put to the ERS and accused the employer of launching a “legal blitz” against the ERS.
The union’s general secretary, Len McCluskey, said the strike could not go ahead because “such a move would expose our members to sanctions by a bullying employer”. But he vowed to call a fresh strike ballot in the next 10 days.
A BA spokesman said: “Unite has once again failed to conduct a proper ballot. We make no apology for having advised Unite of the flaws in its conduct.”
He added that the union had been aware of the problems with the ballot for more than three weeks but had hidden the fact from its members.
Flanagan suggested that the issue might be that the reasons behind the ballot were confusing, giving rise to accusations that “members are either totally unsure or are actually being misled by the union on what the ballot is about.”
But, he said, while a key requirement for an industrial action ballot to be lawful is that there is trade dispute, there is no legal requirement for a union to identify exactly what the dispute is.
The ACAS Code of Practice bans a union from producing information which is so misleading that it undermine the legality of the ballot. The code is not law, although it can be taken into account by a court in an application to stop the ballot going ahead, he said.
Flanagan said: “My conclusion is that there is nothing unlawful about a union not making clear what people are voting about, apart from the provision in the Code of Practice concerning misleading information. This is a serious gap in the law on the management of industrial action ballots.”