British Airways Plc v Unite the Union

For statutory protection from liability for inducing employees to take industrial action, a union must comply with the statutory ballot requirements, including taking reasonably necessary steps, as soon as reasonably practicable, to ensure that every person entitled to vote is informed of each prescribed item of ballot information. Communicating the result generally, or directing members to sources where fuller information may be found, may be insufficient. At the interlocutory stage, the court must give particular weight to the likelihood of success at trial under Trade Union and Labour Relations (Consolidation) Act 1992, section 221(2), while also considering the ordinary interim-injunction factors. Where compliance remains properly arguable and the union’s prospects are not overwhelming, the balance of convenience may justify an injunction restraining the proposed industrial action.

British Airways Plc sought an interlocutory injunction restraining Unite the Union from inducing cabin crew to breach their employment contracts by taking proposed strike action. The airline alleged that Unite had failed to comply with section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992 after a ballot, because members had not been adequately informed of all four prescribed categories of information.

Unite accepted that some communications omitted votes cast and spoiled ballot papers, but relied on fuller information being available on websites, notice boards and news sheets. The central issues were whether the statutory requirements had arguably been satisfied and, if not conclusively resolved at the interim stage, how the likelihood of success and balance of convenience should be assessed.

1. Interlocutory injunction granted. The proposed strike action was restrained because the airline had shown a properly arguable case that Unite had not satisfied section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992.
2. Section 231 required Unite, as soon as reasonably practicable, to take reasonably necessary steps to ensure that all persons entitled to vote were informed of the number of votes cast, the votes answering yes, the votes answering no, and spoiled voting papers. The obligation concerned communication of the prescribed information, not merely communication of the favourable result.
3. The court treated Network Rail Infrastructure Ltd v National Union of Rail, Maritime and Transport Workers [2010] EWHC 1084 (QB) as a persuasive and highly respectable decision. It supported the distinction between actively providing statutory information and merely identifying a place where members could obtain it. The facts and evidence concerning websites, notice boards and news sheets left a genuine issue for trial.
4. Under section 221(2), the likelihood that the union would establish at trial a defence under section 219 was particularly relevant, although it was not the only consideration. The court also considered the ordinary interim-injunction factors, including the potential consequences of refusing relief.
5. The union’s prospects were not overwhelming. In view of the arguable statutory non-compliance and the potential serious economic and reputational damage to the airline, the balance of convenience favoured the injunction. The court would not refuse relief on the basis of the Convention argument in light of Metrobus Ltd v Unite the Union [2010] ICR 173.