British Airways Plc v Unite the Union

Trade union statutory immunity from tort liability depends on compliance with the balloting and industrial-action notification requirements in Part V of the Trade Union and Labour Relations (Consolidation) Act 1992. The reasonable-practicability provisions require the union to take sensible and effective steps to obtain and verify relevant information. A union cannot rely on lack of information where it knew that a substantial group of members would leave employment before industrial action and failed to make reasonable enquiries or give clear instructions that they must not vote. An unintentional or unavoidable error is not necessarily an “accidental failure” within section 232B. Where the statutory defences have poor prospects and a strike would cause grave commercial and public damage, the balance of convenience may favour an interim injunction.

British Airways applied urgently for an interim injunction restraining Unite the Union from proceeding with a twelve-day cabin-crew strike. Unite had balloted cabin crew at Heathrow and Gatwick, obtaining an overwhelming vote in favour of industrial action.

BA alleged that the ballot notice, ballot and notice of industrial action included substantial numbers of employees who had accepted voluntary redundancy and would leave before the proposed strike. Unite accepted that many such employees had been included, but relied on the reasonable-practicability provisions in sections 226A and 234A, the reasonable-belief requirement in section 227, and the accidental-failure defence in section 232B. The central issue was whether those statutory defences gave Unite a realistic prospect of establishing that the industrial action was lawful and protected by statutory immunity.

Application granted. Mrs Justice Cox held that BA was entitled to an interim injunction.

1. Statutory framework. Sections 219 and 219(4) make trade-union immunity conditional on compliance with the statutory requirements governing ballots and notices of industrial action. Sections 226A and 234A require information about the employees concerned or affected to be as accurate as reasonably practicable in light of information in the union’s possession. Section 227 limits voting entitlement to members whom it is reasonable for the union to believe will be induced to take part in the industrial action.
2. Reasonable practicability. Unite knew, or ought to have known, by the time of the ballot notice that substantial numbers of members would leave employment before any strike could take place. It failed to make reasonable enquiries of its membership, failed to issue clear instructions that departing members must not vote, and left legally incorrect advice on its website. The evidence therefore did not establish that everything reasonably practicable had been done.
3. Accidental failure. The inclusion of departing employees could not be treated as an “accidental failure” within section 232B merely because Unite did not intend the result or found it difficult to identify all affected members. The court therefore did not need to decide whether the statutory test concerning the likely effect on the ballot result was prospective or retrospective.
4. Human rights and injunction. The court was bound by Metrobus v UNITE [2009] IRLR 851, which had held that the statutory requirements did not disproportionately restrict the right to strike. Applying the modified approach required by section 221(2), the prospects of Unite establishing the statutory defences were poor, damages would not adequately protect BA, and a Christmas-period strike would cause grave damage to BA and the public. The balance of convenience therefore favoured relief.

An interim injunction was granted restraining the proposed industrial action.