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.
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