Unite, the union that represents British Airways Cabin Crew and Ground Staff has launched a legal challenge in response to the job cuts proposed by British Airways (BA/BAW) yesterday.
The union is seeking a Protective Award under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 on the basis that British Airways is in breach of its obligations.
Unite also claims that the airlines’ actions amount to an abuse of public funds, questioning the legality of making staff redundant whilst claiming money from the Governments job retention scheme, a scheme set up to ensure staff don’t lose their jobs as a result of the Coronavirus (COVID-19) pandemic.
As a result, the union has written to the UK Government setting out their concerns and says that Unite “reserves our right to refer BA’s furlough requests to HMRC, to question the legality of these actions and a potential misuse of public funds”
Unite also sets out 10 reasons it says British Airways “forgot to mention” when it told staff about its dire situation yesterday.
These include the fact that its parent company, International Airlines Group has available cash of £3bn with access to another €10.7bn in credit and that if staff are deemed to suitable to be re-employed, staff will be subject to new pay and conditions at a lower rate.
The Union also claims that British Airways could survive a year with its fleet grounded.
It isn’t clear whether any legal challenge would be successful and Unite admits this to its members but they said: “we must at the very least try”.
The Legal Challenge in Full
Section 188 TULRCA imposes a multiplicity of obligations, all of which must be complied with. BA’s opportunistic attempt to initiate consultation in this way amounts to clear breaches of section 188 TULRCA, and Unite is entitled to bring proceedings for a protective award for the whole of BA’s workforce for the following reasons (at least):
- An overriding consideration is that consultation must be ‘meaningful’. Any consultation must include consultation about ‘the ways of avoiding dismissals, of reducing the numbers of employees to be dismissed and mitigating the consequences of the dismissals’ (section 188(2) TULRCA). There is the stark reality that the majority of the workforce are on furlough. There is also the imminent further review of the United Kingdom’s lockdown and travel restrictions, as well as other countries reviewing their own travel constraints. At such of constantly changing international events and restrictions, it is impossible to envisage how consultation at this stages could be meaningful.
- A fundamental component of adequate consultation is for the representatives of affected employees to be able to communicate the company’s views to the affected employees, hear their views on the company’s proposals, and, in light of the views expressed, respond to the company. Throughout the process, the employee representatives must be able to communicate with the affected employees efficiently. A high proportion of the affected employees, including those whose futures would be in jeopardy, are currently on furlough, which necessarily means that they are prevented from working, and required not to attend the workplace. They are also subject to social distancing restrictions which makes it impossible for effective communication with them to take place. Many are in isolation and have no access to the internet or other methods of communication. Not only does this mean that ‘meaningful’ consultation is impossible anyway, it also means that the union’s representatives are prevented from seeking, and acting upon, the views of the workers they represent. This makes it impossible for there to be adequate consultation for the purpose of s188 TULRCA.
- Any consultation concerning BA’s announcements must take place between Unite’s representatives, as the ‘appropriate representatives of affected employees’, and BA. The majority of Unite’s representatives are furloughed like the rest of the workforce. If Unite representatives were to be required to take part in the consultations BA proposes, then they would be undertaking work in violation of the CJRS, and contrary to the instructions they have received from BA.
- Section 188(5A) TULRCA requires that ‘the employer shall allow the appropriate representatives access to the affected employees and shall afford those representatives such accommodation and other facilities as may be appropriate’ The obligation to allow Unite’s representatives access to the ‘affected employees’ applies both to workers who are members of Unite, and those who are not. There is, as matters stand, no realistic prospect of Unite’s representatives having sufficient access to the affected employees, and this applies most particularly in the case of affected employees who are not members of Unite. In the current furlough arrangements there can be no means of access to affected employees (furlough employees who have been correctly instructed not to work), and there can be no other provision for accommodation or facilities appropriate to the circumstances. We remind you that the obligation in section 188(5A) is a ‘strict liability’ obligation, and is not subject to the ‘special circumstances’ defence provided for by section 188(7). In those circumstances, Unite is now entitled to bring proceedings in the Employment Tribunal for a protective award for all workers employed by BA. That protective award would provide for payment of up to 13 weeks’ pay per affected employee in respect of whom the protective award is ultimately made.