Six former Gate Gourmet workers, sacked after taking part in a 2005 dispute at Heathrow airport, lost their appeals against unfair dismissal last week.
The Employment Appeal Tribunal (EAT), in a ruling that clarifies employers’ rights to dismiss unofficial strikers, found against the six who took part in industrial action at Heathrow during a bitter dispute in August 2005.
The case hinged partially on whether the six were taking part in unofficial industrial action.
Some of them had gathered at an unofficial mass meeting in a staff canteen when the dispute erupted and were told to disperse by Gate Gourmet management. The Employment Tribunal held they were free to do so and “they were warned of the consequences if they did not”. In those circumstances, the tribunal concluded that all those present at the moment of dismissal were participating in the action.
“Given its findings of primary fact, that conclusion seems to us inescapable,” said the EAT judge, Mr Justice Underhill.
Commenting on the decision, Charles Wynn-Evans, partner at law firm Dechert, said: “The EAT considered a number of points relating to the dismissal of those who participate in unofficial industrial action, and made two particularly important findings.
“First, nothing in the European Court of Human Rights or European Court of Justice case law on the right to strike overrides the principle that it is potentially fair, by reason of conduct and within the range of reasonable responses, to dismiss an employee for having taken part in unofficial industrial action.
“Second, despite his status as a union official, it was legitimate for the tribunal to find that an employee who attended a meeting which constituted unauthorised absence from work was participating in unofficial industrial action at the time of his dismissal, rather than acting in his capacity as a union officer and therefore could not claim unfair dismissal when dismissed.”
Wynn-Evans added: “The decision serves as a useful reminder to employers that to be able to dismiss unofficial strikers without the need for a dismissal procedure or the risk of unfair dismissal not only depends on the industrial action being unofficial by virtue of its not being authorised or endorsed by the relevant union. The employee needs to be shown to have been participating in the action – rather than, for example, being absent from work due to illness – and to have been dismissed while participating, both of which are important matters of fact.”
Gate Gourmet, which supplied British Airways with in-flight food, sacked hundreds of staff in August 2005. At the time, the Transport and General Workers Union said the company’s action was “premeditated”.