Editorial from IDS Brief 895, February 2010

Collective rights and procedural wrongs

Ask any employment lawyer who has been practising for 20 years or more what the biggest change in
employment law has been over his or her career and, more likely than not, he or she will point to the decline in
the perceived importance of collective labour law. Whereas those who were at law school in the 1980s will have
spent most of their time studying trade unions and industrial action, in recent years the collective dimension of
labour relations has been pushed to the margins of the employment law syllabus, with the focus shifting to those
subjects seen as more immediately relevant to the individual: unfair dismissal, discrimination, etc. Furthermore,
the comparatively low levels of industrial unrest in recent years mean that solicitors are rarely called on to advise
on collective issues.

BA action grounded – for now

It would therefore be unsurprising if the issues involved in the dispute between British Airways and the union
Unite over the latter’s proposed strike action were unfamiliar even to some experienced practitioners. We report
the High Court’s decision to grant an injunction preventing the strike – a decision based on irregularities in the
ballot procedure – on page 13 of this Brief. In short, while the union conducted the required ballot before
endorsing strike action, it impermissibly included in the ballot some BA employees who were taking voluntary
redundancy and so could not have taken part in the strike.

This is by no means the end of the dispute. Unite opened a fresh ballot on 25 January, which is due to run until
22 February, and it will be confident of receving a mandate for strike action. The disputed ballot returned a 92 per
cent favourable response on a turnout of 80 per cent. However, that was before the details of the proposed strike
– 12 days over the Christmas holiday period – were made public, and the voting members may be more cautious
this time if they suspect that the union executive is again planning a long-haul campaign. Unite has issued a
press release stating that any strike resulting from this ballot will not take place over the Easter holidays. The
statement may be as much intended to assuage the concerns of the union faithful as it is those of the general
public.

The dispute raises other interesting issues. One is BA’s reported intention to remove travel perks, such as a 90
per cent discount on flights, from staff who go on strike. While striking employees are protected from dismissal for
a limited period, they enjoy no express protection from detriment short of dismissal. Accordingly, an employer is
apparently free to ‘retaliate’ against those taking industrial action, although the danger of thereby giving rise to a
constructive dismissal would have to be very carefully considered. The Trade Union Rights and Freedoms Bill, a
private member’s bill introduced in 2006 by the Labour MP John McDonnell, sought to introduce into the Trade
Union and Labour Relations (Consolidation) Act 1992 protection from detriment for taking part in lawful industrial
action. However, the Bill never came anywhere near the statute book and the Government has not seen fit to
address this issue.
There may be trouble ahead

Whatever the outcome of the BA dispute, it is unlikely to be the last time that collective labour issues are in the
news this year. The Public and Commercial Services union has begun balloting 270,000 members over strike
action in protest at proposed changes to the redundancy pay element of the Civil Service compensation scheme,
which it claims will mean staff losing up to a third of their existing entitlement. With a public sector pay freeze and
budget cuts reportedly on the agenda for 2010, public sector trade unions are likely to be making the headlines
for the foreseeable future.

More generally, the law on industrial action might be in for turbulent times. There has been much debate – not
least in these pages – over whether a ‘right to strike’ exists in UK and European law. Thus far, the domestic case
law has generally answered that point in the negative. However, a number of cases recently decided by the
European Court of Justice, including Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and ors (Brief
846), have recognised the right to take collective action as a fundamental right forming an integral part of the
principles of EU law, albeit one that must be balanced against employers’ economic freedoms. More positive in
its assertion of fundamental trade union rights has been the European Court of Human Rights in Enerji Yapi-
Yol Sen v Turkey (Case No.68959/01). In that case the Court suggested that a right to strike is included within
the freedom of association and assembly protected by Article 11 of the European Convention on Human Rights
(ECHR), when read against the background of international law.

The ECHR issue was addressed recently by the Court of Appeal in Metrobus Ltd v Unite the Union (Brief 885),
where it rejected Unite’s argument that the balloting and notice requirements were an unduly onerous
infringement of Article 11. Mrs Justice Cox, sitting in the BA case, noted that she was bound by that decision.
However, she went on to comment that, sooner or later, the compatibility of the statutory regime with rules of
international law, such as the Freedom of Association and Protection of the Right to Organise Convention
(No.87) of the International Labour Organisation, will have to be carefully considered. Looking at the likely labour
market conditions for the next 12 months, if such a challenge does not materialise in the near future, it will not be
for want of opportunities.

Editorial from IDS Brief 895, February 2010