British Airways Plc v British Airline Pilots' Association

On an interlocutory application to restrain industrial action, the court assesses whether the union is more likely than not to establish the statutory immunity defence. The American Cyanamid approach does not apply. If the defence is likely to succeed, an injunction should be granted only in a very exceptional case.

Under the Trade Union and Labour Relations (Consolidation) Act 1992, employee categories in a ballot notice mean general types or groups of workers. The union may choose a rational categorisation, but it must be sufficiently accurate and must not be so uncertain or imprecise that the statutory requirement is unmet. The removal of express planning wording means that employer planning is no longer the yardstick for determining the notice's content, although enabling employers to mitigate disruption remains an underlying rationale. Sufficiency is assessed objectively, practically and in the circumstances of the particular case.

BALPA gave British Airways plc notice of a ballot for industrial action involving 3,833 pilots employed at Heathrow and Gatwick. The notice identified employees by rank and workplace, but did not identify their allocation to short-haul or particular long-haul fleets.

BA sought an interim injunction, arguing that the omission of fleet information breached the statutory requirement to list employee categories. Mrs Justice Elisabeth Laing refused the injunction, holding that the current legislation no longer made employer planning a purpose by which the sufficiency of categories was judged. BA appealed, contending that fleet information was required because it would assist contingency planning. The central issue was whether BALPA was more likely than not to establish at trial that its notice complied with the category requirement.

1. Appeal dismissed. Simler LJ gave the lead judgment, with which Hamblen LJ and Davis LJ agreed. On an interlocutory application where a union invokes the immunity in section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992, the court does not apply the American Cyanamid test. By section 221(2), it assesses the likelihood that the union will establish the relevant defence at trial. If that defence is more likely than not to succeed, an injunction should be refused unless very exceptional or other compelling circumstances exist. The approach reflected NWL v Woods and NURMT & Ors v Serco & Ors.
2. The word categories is broad and flexible. It means general types or groups of workers. The legislation leaves the union to determine the categories, but the lists and figures must be as accurate as reasonably practicable in light of information in the union's possession. There is no obligation to use a particular occupational or pay-related classification. The approach in Westminster City Council v Unison was applied.
3. The legislative history showed two continuing policies. The notice should give employers fair warning so that they can make plans to avoid or mitigate disruption. It should also be capable of clear and certain application by unions without imposing excessive burdens or traps. The deletion in the 2004 amendments of wording requiring information that would help the employer make plans means that planning is no longer the yardstick by which the content of the notice is judged. It remains an underlying rationale, however. To the extent that observations in Virgin Atlantic Airways v PPU suggested that planning remained the measure of the union's obligation, they were not accepted.
4. The starting point is a general job category. A category may nevertheless be insufficient if it is too uncertain or imprecise for the statutory purpose. Sufficiency is determined objectively, in a common-sense and practical way, having regard to the facts, the information in the union's possession and the twin policy objectives. The union is not required to identify information by assessing the employer's relative need for particular skills, roles, functions or qualifications.
5. BA's argument established only that fleet information would have assisted its planning. It did not show that the rank-based categories in BALPA's notice were insufficient. Pilots' fleet allocation was not necessarily a description of their job or occupation, and there was no bright line requiring greater specificity. The notice complied with section 226A. The appeal was dismissed.

• High Court: Mrs Justice Elisabeth Laing refused BA's application for an interim injunction after a hearing on 21 July 2019 and an extempore judgment on 23 July 2019.
• Court of Appeal (Civil Division): On 31 July 2019, the court dismissed BA's appeal. Simler LJ gave the judgment, with which Hamblen LJ and Davis LJ agreed.