BA's case was unsuccessful and the Court of Appeal (CA) provided some useful information about how the law in this complicated area will be applied.
At common law, there is no right to strike and those who take part in strike action will be acting in breach of contract. In addition, any trade unions who authorise or endorse such action may be liable for inducing a breach of contract.
To enable unions to organise industrial action and employees to participate in such action, certain immunities have been granted and these are set out in the Trade Union and Labour Relations (Consolidation) Act (TULRCA). However, the immunities are only granted if the union follows certain procedural rules set out in TULRCA in relation to balloting and giving notice to the employer.
These notification requirements oblige a union contemplating industrial action to take reasonable steps to ensure that, not later than 7 days before the ballot opens, it tells the employer in writing about its intention to hold a ballot. They must provide information, which must be as accurate as is reasonably practicable, about the employees it believes will be entitled to vote in the ballot. Included in this information must be a list of the categories of employees that will be included in the ballot, and the number of employees in each category.
Where an employer considers that a union has failed to comply with the requirements (and would therefore be inducing a breach of contract by organising strike action), it can apply for an injunction to prevent the strike action. When considering whether to grant an injunction, the court should determine whether the union would be likely to be able to successfully establish that it had complied with the requirements and therefore be able to rely on the immunity provided by TULRCA.
Having received notice from BALPA that it intended to ballot its members on proposed strike action, BA sought an injunction to prevent the strike action. They argued that the notice provided had failed to give sufficient information about the identity of the employees to be balloted and had categorised them by reference to their rank rather than their fleet. It argued that the absence of this information meant it was unable to adequately plan how to deal with the strike action.
BA were unsuccessful and appealed to the CA.
The CA sided with BALPA, ruling that the information it had provided was sufficient. It held that a "category" for the purposes of the notification requirements should be construed in a common sense way. It accepted that there will always be alternative ways of categorising employees, and noted that an employer will almost always be able to say that some other method of categorisation would have been more helpful to it. Whilst not every categorisation would be sufficient to meet the statutory requirements (for instance categorising them all as Pilots would have been insufficient) in this case, categorisation by rank as opposed to by fleet was sufficient to meet the relevant notification obligations.
Employers facing potential strike action will be keen to minimise this risk and where the union has failed to comply with the ballot or notification requirements, seeking an injunction is a good way to prevent (or at least delay) the action. However, whilst the ballot and notification requirements are quite precise, and errors are sometimes made, this case reminds us that the courts will try to balance the rights of trade unions and their members against the needs of the employer. They will not too strictly construe the wording of the legislation against those relying on it to provide immunity. Employers should therefore consider carefully whether the requirements have actually been breached before raising a legal challenge.