British Airways would be exploring new legal territory if it followed through with threats to sack cabin crew in any future strikes on the grounds that they were striking over the original issues for which the legal mandate had expired, according to law firm Freshfields.
Hopes of resolving the year-long dispute with cabin crew received a blow yesterday (11 November) when the Unite union suspended a planned ballot on the company's latest offer, due to opposition from its cabin crew division, Bassa.
BA is understood to have hinted that it could sack strikers in any future strikes as, under industrial relations law, workers can lose their statutory protection against dismissal if a court deems they are striking over what are, in effect, the same issues.
Nick Squire, employment partner at Freshfields, said that this proposal raises a complex legal issue.
"Under strike legislation, striking workers enjoy a range of protections against dismissal," he told Personnel Today. "However those protections diminish over time - in particular, after 12 weeks a dismissal may no longer be automatically unfair. Where there is an ongoing underlying dispute the question therefore arises whether the 12-week protected period can start to run again if there is a fresh strike ballot."
The legal provisions in this area have not been fully tested in court and, in practice, much will turn on the proper characterisation of the "new" dispute, according to Squire.
"If a court were to conclude that the subject matter of the dispute is on all fours with the 'original' dispute, one suspects that a court would not allow the protected period to start running again if it concludes that the principal purpose of a fresh ballot is to try to give employees extended protection," he said.
"Equally, however, there must be a point in time at which a further strike on essentially the same issue would properly be regarded as a new dispute and one in relation to which the statutory protection against dismissal starts to run again. The $64,000 question is when that point is reached."