British Airways (BA) could face tribunal claims after it allegedly threatened to label staff who call in sick during the cabin crew walkouts as strikers, lawyers have warned.
BA is said to have warned cabin crew who have called in sick this week that they will be seen as strikers if they do not return to work before the industrial action which will run from tomorrow (20 March) for three days.
Lisa Patmore, an employment partner at law firm Pinsent Masons, told Personnel Today “there’s nothing that says [the move by BA] is not lawful”, but she warned it could lead to tribunal claims from staff who were legitimately off sick.
By labelling unwell staff as strikers, BA could withhold pay – as is legal with staff on strike – and take disciplinary action for the abuse of sickness absence policies. The airline has also threatened to permanently strip strikers of their travel perks.
Patmore said: “BA will dock pay saying the staff were not ready, willing and able to work, but if the employee can show they were not well, BA will face tribunal claims potentially for breach of contract and unlawful deductions of wages.”
At the tribunal, staff would have to provide evidence of a sick note, while BA would have to demonstrate why it believes the employee was actually striking. This could include evidence of earlier support of the strike or participation on previous picket lines.
Several BA staff, who insisted they were legitimately ill, told the Guardian the airline had said they would now face disciplinary action and be denied pay if they were off sick during the walkouts.
Patmore added the staff most likely to call in sick would be those who do not directly support the strike, but do not want to cross the picket lines.
John Read, an employment law editor at XpertHR, added BA’s hard stance “could severely damage relations with non-striking crew”.
The airline refused to comment on the decision, saying the issue “is between ourselves and individual members of the cabin crew”.
BA is also pursuing disciplinary procedures against “a number of staff” over “harassment and bullying allegations”, but the airline refused to disclose how many staff faced disciplinary hearings, or whether they could be sacked.
Karen MacPherson, employment partner at law firm DLA Piper, said BA could lawfully discipline and sack its staff for bullying and harassment, but if the reason for the action was their role as trade union officials during a strike, that could lead to an “automatic unfair dismissal case”.