As someone planning to fly with BA on 23rd December I’m more than usually keen to know the basis on which BA is planning to challenge the industrial action in the courts – see the news story here.
On this basis BA seems to be relying on the fact that ballot papers were sent to some people who should not have been sent them. However they may have a problem with S.232B of the Trade Union and Labour Relations (Consolidation) Act 1992. This provides that accidental failures in a ballot which are on a scale ‘which is unlikely to affect the result of the ballot’ must be disregarded in assessing its legality. Since the ballot favoured strike action by nine to one it is difficult to imagine the scale of balloting errors needed to get around this provision
Nevertheless BA may think a legal challenge is worth a go. They could argue that there is evidence that the failure was deliberate for example. They would not need to prove the point because an injunction could be granted before the issue is actually tried – all they need to do is show an arguable case. On the other hand, industrial action injunctions should only be granted having regard to the likelihood of the claim succeeding at trial – see S.221 1992 Act.
Normally I am against companies seeking to find a semi-conscious duty high court judge who has just had a full dinner and is asked to grant a quick injunction despite his lack of expertise on the legal issues he is being asked to rule on. However since my Christmas holiday is at stake I’m prepared to make an exception.
The Equality Bill completed its Report Stage and Third Reading in the House of Commons today. It is now off to the House of Lords.
I havn’t been able to check all of the amendments that were made but the proceedings of the Bill published so far show the Government proposing two new clauses - which I presume were adopted.
The first is a complicated provision which seems to provide that where an employer asks an employee about his or her health prior to offering employment and then does not make an offer of employment then the burden of proof will switch to the employer to prove that the refusal of employment was not an act of discrimination.
Hmmm. Not sure about this. Nothing wrong with the provision in itself - but why single out disability for special treatment here? The purpose of the Bill is at least in part to harmonise the way in which discrimination works accross the different strands and this is one added way in which disability discrimination will work differently. In any event its a pretty complicated provision which doesn’t do all that much - it only shifts the burden of proof. It does not prevent an employer from using medical questionnaires and does not make refusing employment based on health unlawful in itself. I think it is bound to cause confusion and certainly will not help to ’simplify and clarify’ the law.
Another new clause makes it clear that in a discrimination case the fact that the discriminator shares the same protected characteristic as the claimant does not prevent a claim of discrimination. In other words it is possible for a woman to discriminate on the grounds of the sex of another woman, or a white person to racially discriminate against another white person -etc.
I’m a bit puzzled by this. Who on earth has ever suggested otherwise. I certainly wouldn’t have read the current Bill in any other way. Maybe I’ve missed something?
When the full proceedings are published I’ll post a full list of the subnstantive amendments that have been made. I’ll also plough through the Hansard debates to see if there are any indications of future developments from the Government -both the current one and the next one!
