Read the latest news about the escalation of the use of the law to frustrate democratic decisions by workers, from the United Campaign.
BA granted an injunction to stop a ballot of some 11,600 union members who had voted substantially in favour of taking strike action beginning on the 18 May. 11 spoilt ballot papers were not referred to in texts or in press releases and the court said the union could have included reference to the 11 ballot papers in emails. Union says: "We posted it on the web, we put notices on our noticeboard and we distributed leaflets."There was no evidence of anyone being unaware of the industrial action, or even the number of spoilt ballot papers.

How can this be?

There is a requirement to notify members and the employer as soon as reasonably practicable of (among other things) the number voting "yes" and those voting "no" - and the number of spoilt ballot papers. A provision in the legislation relating to "small accidental failures" does not apply to this obligation.

In the UK an injunction is granted on the balance of convenience if there is a serious issue to be tried. This is less than establishing an arguable case.

The FT reported: "The ruling came too late for more than 20,000 British Airways passengers who faced disruption to their travel plans on Tuesday and had to endure long delays because the airline had changed its schedule in preparation for the expected strike." Why didn't BA apply earlier? Because their lawyers hadn't thought of the argument before.

The appeal decision on Thursday 20 May involved 3 senior judges and was 2 - 1 in favour of removing the injunction. It does not even represent an attempt to state where the bar is - a very high bar anyway, but some guidance on one of many provisions in the 1992 Act.

The Court of Appeal in 1996 "Parliament's object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity...the requirement has not been imposed for the protection of the employer or the public, but for the protection of the union's own members." (Millet LJ in LUL v NUR). How naive was that?

Johnston Press v NUJ   17 May 2010

On the same day in May 2010 Johnston Press stopped the NUJ: The NUJ had to accept they had been caught out in a ballot of 550 journalist members when the company presented a 600 page document at the 11th hour claiming they did not employ any journalists, but that the journalists were employed within a web of associated companies under the "Johnston Press" umbrella.

Network Rail v RMT  1 April 2010

Network Rail successfully applied for a high court injunction against the RMT union to stop the first national rail stoppage in 16 years, citing strike ballot inconsistencies. (See UC letter to Guardian).

Milford Haven Port Authority v Unite  February 2010

The High Court initially granted MHPA's application for an injunction, agreeing with the employer that the notices were in the wrong form and that the pilots and launch crews should be prevented from taking strike action.

BA v Unite  December 2009

British Airways wins a high court injunction to stop Unite's planned "12 strike days of Christmas" because the union was said to have mistakenly balloted 811 members who had already applied for voluntary redundancy some of whom the union could not reasonably expect to take part in the industrial action. (NB about 12,000 employees took part in the ballot: 92.5% majority on an 80% turnout. Had the 811 people not been included and it was assumed that those who did vote, voted in favour the result would have been 91.5% in favour).

EDF Energy Powerlink v RMT  October 2009

EDF Energy Powerlink, who operate and maintain the electrical power network on London Underground, successfully petitioned the High Court, alleging problems with the ballot, to grant an injunction stopping electricians from striking over a pay dispute. The RMT had balloted 64 electricians employed by EDF at six workplaces, whom it categorised as "engineer/technicians". But EDF argued its workforce of 155 staff covered six different trades and that, as such, it could not tell which trades were covered by the union's notice to ballot.

The good news is that the RMT have lodged papers at the European Court of Human Rights in relation to that case arguing that the UK laws are themselves unlawful under the European Convention on Human Rights & Fundamental Freedoms and that a bar on solidarity action is too.

Metrobus v Unite  August 2009

Metrobus gained an injunction against Unite to stop walkouts over pay and conditions after the High Court (and agreed by the Court of Appeal) found there were fatal flaws in the balloting process, where staff had voted 90 per cent in favour of two 24 hour strikes...the particular problem related to the ballot result not being given to members and the employers as soon as was reasonably practicable (explain - similar to the latest BA injunction). The union followed previous practice. And it was argued that the union had to give an explanation as to where the figures came from - but "The figures come from our computer at head office" would have complied with the requirement.

Argument at the Court of Appeal included a comprehensive explanation if the UK laws being in breach of fundamental human rights. The employer's QC argued that the laws were a fair balance between different interests because the Labour government's reviews and changes to the law left the Tories anti-union laws largely intact.

Industrial action on Metrobus, due to take place the following day 10 October was stopped but went ahead on routes covered by FirstGroup and Metroline...who can claim damages...

BA v BALPA  May 2008

The British Airline Pilots Association abandoned a high court battle against BA over its threat to seek an injunction against a planned strike. Balpa went to court to seek clarification that its right to strike over the OpenSkies programme did not conflict with European law. BA claimed that European Community law lets any business based in the EU open a business in another state prohibited its pilots from striking over the move.

However the ILO Committee of Experts declared in March 2010 that the Government must review the UK's anti-union laws and consider appropriate measures for the protection of workers and their organisations. This call is in light of observations made by the ILO for many years concerning the need to ensure fuller protection of the right of workers in the UK to exercise legitimate industrial action in practice.