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Brace position: English law on strikes

07 November 2017 by Paul McFarlane

Brace position: English law on strikes - Read more

A series of airline industrial disputes flag the English legal restrictions on strikes

It is often said that trouble comes in threes, and this has certainly been true for Thomas Cook, Ryanair, and Monarch, all hit recently by industrial and public relations crises. But what legal issues lie behind their troubles, and what steps can these airlines do to try to resolve things?

No right to strike

Whatever trade unionists may tell you, there is no ‘right to strike’ in English law. Instead the Trade Union Labour Relations (Consolidation) Act 1992, which regulates industrial relations in England, provides that as long as a trade union jumps through a number of hoops they are immune from being sued.

If a union is granted immunity the employer cannot fairly dismiss employees engaged in the industrial action until 12 weeks after that action begins. At that point the employer must dismiss all those engaged in industrial action, otherwise any dismissal would be automatically unfair.

However, there could be issues if there is a strike and the union has not gone through the necessary process.

If employees go on so-called ‘wildcat’ action then the employer could seek a High Court injunction to stop the strike, or selectively dismiss employees engaged in such action. Those employees will not have a right to bring an unfair dismissal claim.

Only a union can be granted immunity. Without a union any collective action by employees leaves them without protection, and could result in them being selectively dismissed.

Hula hoops

As said, there are a number of hoops a union must jump through to qualify for legal protection.

First, there must be a ‘trade dispute’ – which has a wide definition – but it cannot be a ‘political dispute’.

The union can only call out its members from the employer who they have a ‘trade dispute’ with; they cannot call ‘secondary action’ by asking members from third parties to support action against an employer.

There must be notice of a ballot for industrial action, with details of the numbers and categories of employees who can be expected to be balloted. Then there must be an appropriate ballot. This must comply with detailed rules on who should be balloted and how the ballot must be conducted, among others.

“A judge described these rules as a ‘labyrinthine code of detailed requirements with which unions have to comply’”

Unions must notify both their members and the employer of the ballot result. Assuming the ballot result is positive, they must give at least 14 days’ notice of industrial action to the employer, along with details of the numbers and categories of employees who can be expected to take part in the industrial action.

It is no wonder that in a 2015 case, a judge described these rules as a ‘labyrinthine code of detailed requirements with which unions have to comply’.

If a union fails to get any one of these right then an employer can apply to the High Court for an injunction to temporarily stop industrial action. The union would then need to go through the process again, rectifying any errors it has made, so that it could lawfully call its members out.

Thomas Cook

In the case of Thomas Cook, the British Airline Pilots Association (Balpa) was in dispute with the travel firm over pay, and after a ballot called its members out on strike for eight days in October – the first strike by UK pilots since 1974.

Thomas Cook applied to the High Court for an injunction. It argued Balpa had failed to comply with a rule introduced in March 2017, dealing with the information it should put on the voting paper.

The rule says: ‘The voting paper must indicate the period or periods within which the industrial action or, as the case may be, each type of industrial action is expected to take place.’

The relevant part of Balpa’s voting paper said: ‘It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8 September 2017 to 18 February 2018.’ In line with this, Thomas Cook’s case was that Balpa should have included more dates concerning when it intended to call its members out.

The High Court rejected Thomas Cook’s arguments. It found that to require more detail would be ‘vague and unworkable’. Therefore an employer cannot require the union to specify exact dates of proposed industrial action in its ballot.

Thomas Cook and Balpa have since agreed to enter into binding arbitration to resolve this dispute.

Ryanair

If it was not enough to try and manage the PR disaster that is mass cancellation of flights until the end of the year due to mishandling of pilots holidays; Ryanair also faces serious industrial relations issues.

Disgruntled cabin crew are reported to be planning strike action and then moving to rival airlines. The Daily Telegraph reported that a letter has been circulated among pilots encouraging support for an ‘unofficial’ union ‘to oppose the long-standing strategy of divide and conquer that Ryanair has applied in its dealing with its pilots’.

“Ultimately disputes are settled through dialogue and negotiation”

However, Ryanair has a non-unionised workforce. If any of its staff engaged in ‘collective action’, then the airline has the option to selectively dismiss some or all of those employees. It could also sue those ex-employees for breach of their contracts of employment and seek damages.

Would Ryanair do this? To do so would be highly inflammatory, and industrial relations would be unlikely to improve. Furthermore, this would worsen the airline’s precarious staffing problems and its ability to serve its customers.

Monarch

Monarch’s demise is tragic, with over 1,800 staff losing their jobs. Further, the Unite union is reported to have launched legal proceedings against the airline’s administrators for not complying with rules on collective redundancies.

If an employer is proposing to make 100 or more staff redundant within 90 days then they are required to consult in good time with a trade union, or if there is not a union, elected representatives. This must be a minimum of 45 days before the first dismissal.

An employer can, in limited situations, argue there were ‘special circumstances’ which made it not practical to consult. However insolvency, on its own, will not be considered a ‘special circumstance’. The courts have also held that a gradual rundown of a company would not be a ‘special circumstance’.

Each affected employee can claim up to 90 days’ pay where an employer has not complied with these rules. Therefore taxpayers may have to fork out millions if Monarch has breached these rules. As The Guardian reported, a similar case affecting over 1,100 former steelworkers last year ended with a £6 million pay-out.

What next?

The airline industry is highly competitive. This aligned with the uncertainties arising from Brexit means that Monarch may not be the last failing airline we hear about.

Ryanair has written to its pilots to make an increased pay offer, the BBC reports. However, the Irish Airline Pilots Association is said to be sceptical about it, and says the letter provided no details of the costs of the promises.

Airlines and unions would be advised to resolve their issues outside of the courtroom. Although an employers’ threat of an injunction is a legitimate negotiating tool for employers to use, ultimately disputes are settled through dialogue and negotiation.

Paul McFarlane is employment partner at Weightmans LLP

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