Do we still have a right to strike?

BA workers on strike in March Unite says it is fighting "for the rights of workers throughout the country"

The union Unite has won its appeal against an injunction preventing members of British Airways cabin crew from going on strike.

But Unite is angry that BA won the injunction in the first place, after the High Court initially ruled that the union had not correctly followed rules about contacting its members with strike result details.

"It strikes at the heart of the democratic right to strike in a properly conducted ballot by bringing technical difficulties," Unite joint leader Derek Simpson said.

Unite says the decision was made because it had not told its members that 11 ballot papers had been spoilt in its latest vote on industrial action in February.

It calls it a "minor technicality" after 81% (7,482) of its members who had voted supported strike action.

Tony Woodley and BA chief executive Willie Walsh BA has taken Unite to the High Court twice in recent months

Unite's other joint leader Tony Woodley said the case was about "stopping an effective trade union being effective in support of their members".

Mr Simpson added: "I don't blame British Airways - the law is wrong."

Procedural issues

This is not the first time BA had won an injunction stopping Unite members from walking out.

In December, a judge ruled that the union had wrongly included staff taking redundancy in an earlier strike ballot, and that decision was not overturned.

Start Quote

It's not a challenge to the fundamental right to strike but he's right in the sense this is a challenge to the ability to carry out a lawful ballot”

End Quote Prof Roger Seifert Wolverhampton Business School

Nor is Unite the only trade union to have been stopped from going on strike by a decision made in the courts.

In April, Network Rail was granted an injunction after it alleged discrepancies in the RMT's ballot for industrial action.

So is Mr Woodley right to question whether we still have the right to take industrial action?

"I don't think it does cut into our fundamental right to strike because the issues around these have been procedural issues, to do with the ballot, rather than the right to strike itself," says Andy Cook, chief executive of the specialist employee relations advisers Marshall-James.

While Roger Seifert, professor of industrial relations at Wolverhampton Business School, says: "It's not a challenge to the fundamental right to strike but he's right in the sense this is a challenge to the ability to carry out a lawful ballot."

Current legislation says unions do not have to get everything spot on but have to make a genuine effort to show that they have balloted properly, Prof Seifert explains.

RMT badge A High Court injunction stopped RMT workers going on strike in April

"The recent cases have looked at what it reasonably means to get it right," he says.

"The judiciary is beginning to interpret the law much more strictly."

And why are judges getting more "pernickety" as he puts it?

"Judges tend to 'go with the flow' if you like. If the atmosphere is 'We're in recession, these are tough times', maybe they think companies can't allow strikes to happen."

Different interpretations

But it seems that there is some disagreement among judges about how they interpret the law.

The panel that overturned the injunction was divided. The Lord Chief Justice, Lord Judge, and Lady Justice Smith upheld Unite's appeal. The Master of the Rolls, Lord Neuberger, rejected it.

Even Mr Justice McCombe, the judge who granted the injunction, appeared to be in two minds.

He said in his ruling: "At present I am inclined to think that the union may well have failed to put in place an adequately analysed system calculated to ensure that all reasonable steps were taken to communicate with relevant members as soon as reasonably practicable the relevant items of statutory information.

"The point to my mind is an arguable one."

Union action

Andy Cook, who was head of human resources at Gate Gourmet when it was involved in airport strikes in 2005, says the recent spate of industrial disputes ending up in the courts is a sign of "employers growing increasingly frustrated with negotiations and looking at different ways to wield power in different situations".

He cites the Network Rail case as "an attempt by an employer to take the wind out of a union's sails" which, for the time being at least, has been successful.

"We haven't seen any notification of any new strike dates," he says. "The challenge has successfully managed to avert strike action."

But it's not just employers taking unions to court. There is a history of unions seeking legal action as well, Mr Cook says.

Start Quote

It's a sad reflection on industrial relations”

End Quote Andy Cook Chief executive, Marshall-James

In 2008, the pilots' union Balpa tried to take BA to court to stop the Open Skies agreement, he says, while Unite also tried to get an injunction to stop BA making changes in the first place.

And in November last year the Communication Workers Union had been due to go to the High Court seeking an injunction preventing the Royal Mail from using temporary workers while its members went on strike. The union later called off the legal action.

"Where strikes have been called and there really is no other way to resolve it both sides look to try and take legal action," Mr Cook says.

So what does all this mean for the future of industrial relations in the UK?

"I think employers will look at it and use the courts more. It's a sad reflection on industrial relations," according to Mr Cook.

Prof Seifert agrees: "It's irresponsible of employers to keep seeking injunctions and irresponsible of judges to keep granting them.

"Disputes should be resolved between the two parties involved."

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