The British Airways strike and the human right to free assembly [updated]

18 May 2010 by

British Airways Plc v Unite the Union Queen’s Bench Division, 17 May 2010 Read judgment

Update (07/06/20) – this decision was reversed by the Court of Appeal on 20/05/10. We will comment on the Court of Appeal decision when it is available.

The High Court has granted an injunction for the second time in 6 months against a strike planned by British Airways cabin crew, scheduled to begin today. Those who had trips planned will be delighted, but the Unite trade union who represented the workers have called the decision a “landmark attack on free trade unionism and the right to take industrial action” and are to appeal the judgment.

The union argued that a recent series of similar injunctions against strike action ran foul of the Human Rights Act 1998. Article 11 of the European Convention on Human Rights grants the right to freedom of assembly. However, the right can be restricted in certain limited circumstances, as it was in this case.

The injunction was granted on the basis of a technical breach of trade union rules relating to members votes. The Judge ruled that Unite did not tell its members about the number of spoilt ballot papers in the last dispute, and that as such it was arguably in breach of the strict requirements under section 231 of the Trade Union and Labour Relations (Consolidation) Act 1992, which states that as soon as is reasonably practical, a trade union must inform all those entitled to vote in a ballot of, amongst other things, the number of spoiled voting papers.

When applying for an interim injunction, an applicant need only show that they have a “good arguable claim“; the hearing is not intended to represent a full hearing of the merits of the case (see American Cyanamid Co. v. Ethicon Limited [1975] AC 396).

The right to free assembly

The Unite Union argued that if they were prevented from striking as a result of failing to follow the rules 1992 Act, this would constitute a breach of their members’ rights under Article 11 of the European Convention on Human Rights, which provides that “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

As is common with Convention rights, the right can be restricted if that restriction is proportionate, with the test of proportionality being that it is “necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others”.

Metrobus blocking the road

Standing in the way of Unite’s argument on human rights was the powerful recent judgment in Metrobus Ltd v Unite the Union [2009] EWCA Civ 829 (31 July 2009), where the Court of Appeal held that the statutory requirements relating to ballots and strike notification (Part V of the 1992 Act) do not unduly restrict the exercise of the right to strike; that the legislation has been carefully adapted over many years, in order to balance the interests of employers, unions and members of the public; and that its provisions are therefore proportionate (see paras 101 to 113 of the judgment.)

In yesterday’s High Court decision, Mr Justice McCombe only made brief mention of the human rights argument (see para 48 of the judgment) and ruled that his hands were tied as he could not go behind the Court of Appeal judgment. He said

Both counsel, I think, were inclined to accept that the broad thrust of the attack on the legislation in the light of the European Convention on Human Rights could not be satisfactorily maintained in court of first instance.   That is a matter that now remains within the scope of the Court of Appeal or possibly the Supreme Court.  In the light of the decision of the Court of Appeal in Metrobus, I would not be inclined to refuse an injunction on the basis that reliance on the statute by the airline was in some manner incompatible with the Convention.

John Hendy QC, for Unite, also acted for Unite in the Metrobus case as well as in a similar dispute against BA in December 2009.

As Mrs Justice Cox made similar points in the December 2009 incarnation of this dispute (British Airways Plc v Unite the Union [2009] EWHC 3541 (QB) (17 December 2009)), saying that she was bound by that decision and could not therefore go behind it in order to declare that the statutory framework ran contrary to the Human Rights Act.

She did, however, sound a warning that as well as human rights legislation, the UK was also party to various international instruments which recognised the right to strike, and that “Sooner or later, the extent to which the current statutory regime is in compliance with those international obligations and with relevant international jurisprudence will fall to be carefully reconsidered” (para 27).

Watch this space

Unite again fell foul of the Metrobus judgment again in yesterday’s ruling. They are likely to argue in the coming appeal that Metrobus has resulted in a disproportionate restriction on the rights to freedom of assembly by opening the door for employers to prevent strikes as a result of relatively small breaches of trade union rules. British Airways will say that the rules are there for good reason and the strictness of application is proportionate to the enormous cost and disruption that strikes can cause.

It is unlikely, however, that the Court of Appeal will go behind its own decision in Metrobus, and the case may ultimately have to go to the Supreme Court for a final answer.

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