BA cabin crew strike ballot ‘unlawful’
February 8, 2011
Thousands of British Airways cabin crew will be re-balloted over industrial action after the airline warned staff could face dismissal if they strike this month.
The Unite union abandoned the threat of fresh walkouts after objections from BA over the legality of January’s strike ballot, which saw more than 5,000 crew vote for action.
Len McCluskey, Unite’s newly elected general secretary, said: “Unite therefore cannot call industrial action based on this ballot, since such a move would expose our members to sanctions by a bullying employer.”
McCluskey added that Unite was preparing for a new poll, and accused BA of conducting a legal battle instead of pursuing peace talks since January’s announcement of a new strike mandate.
“Since then, Unite has not heard a word from the company,” said McCluskey. “There has not been the slightest flicker of interest from BA in holding talks to address the concerns of their own employees. Instead BA has launched a legal blitz against the independent scrutineer used to conduct this ballot, the Electoral Reform Society.”
Under the terms of the 1992 Trade Union Act – a piece of legislation that has bedevilled Unite’s strike plans over the past year – staff can be dismissed if they walk out for the same reason more than three months after they first went on strike. Citing those clauses in the act, BA pounced on recent references on a union website to the staffing cuts that caused the first wave of walkouts last year, but now cannot form the basis for a new dispute.
Marc Meryon, a partner at Bircham Dyson Bell, a specialist law firm, said the airline could, in theory, challenge new walkouts. “BA would have to show this was the same piece of industrial action and that, therefore, the 12-week period had elapsed. Individuals are protected against dismissal for the first 12 weeks of their participation in industrial action,” he said.
He warned the process would be “convoluted” because BA would need to prove it had made efforts to settle the dispute, while strikers would have to be sacked simultaneously and en masse at their workplace. “You have got to capture all the people taking strike action and dismiss them. That is a pretty bold step to take. Employers rarely do it because if you sack everyone, how do you carry on running the business?”
BA and Unite have been arguing over whether the most recent strike ballot represents a continuation of the old dispute over staff cuts, or a new dispute over allegations of union busting.
The legal wrangling, and Unite’s concession on the validity of the vote, came as the deadline approached for the union to set strike dates.
Britain’s largest union set the clock ticking on 21 January, when it announced that 78.5% of crew who had voted in an industrial ballot had backed strike action. From that point, Unite had 28 days to stage its first walkout. Including the mandatory seven days’ notice for taking strike action, that gave Unite until this Friday to announce strike dates. Instead, legal concerns have once again intervened.
BA said Unite was again at fault for the failure of the vote – more than a year after it successfully challenged a crew ballot in the high court. “Unite has once again failed to conduct a proper ballot,” the airline said. “We make no apology for having advised Unite of the flaws in its conduct. The union has nobody to blame but itself.”
BA also accused Unite of sitting on the legal dispute, while continuing to warn that industrial action was imminent.