Unite has issued this statement today in Microsoft Word (why?). As most people would struggle to read it, I've copied it here.
No Staff Travel? Europe may come to you!
As you may be aware, BA tried everything they could legally to prevent our strike and mitigate its effects. One of the most significant of these measures was to carry out their threat to remove staff travel from strikers.
Can BA legally do this? Many of you have asked questions about the legal position.
Firstly, there are some basic fundamentals with procedure with which BA have not complied.
Secondly, there are issues around the potentially contractual nature of staff travel itself.
And thirdly, some interesting points arise in relation to European law.
Under UK law the starting point is that an employee generally has no rights against an employer who has treated him less well than others because he took part in industrial action. The position is different though if the detrimental treatment by the employer is sufficiently serious to amount to a fundamental breach of an important contractual term (such as the implied term of "trust and confidence"). In some circumstances, this particular breach is so serious that the employee would be entitled to resign and claim constructive dismissal. In that situation British law gives the employee very clear rights, but no doubt BA will be boldly taking that risk and seeking to ensure that any removal of what it calls “non contractual benefits” falls short of that hurdle.
However that is not the end of the story. Recent judgments of the European Court of Human Rights may lead to changes in UK law. As noted above, detrimental action against strikers must be of a fundamentally serious nature if it is going to provide strikers with legally enforceable rights. The European Court of Human Rights has recently suggested that this is too tough a test. In a series of cases involving Turkey and Russia it has recently indicated that it thinks the law should move on and has ruled that if an employee is treated less well than others because he or she has taken, or intends to take, part in a strike or other industrial action he or she will have a legal right to sue their employer under the Convention.
British courts must interpret UK law in a way which will give effect to the Convention and if that is impossible can issue a "declaration of incompatibility" which is likely to lead to Parliament making appropriate changes to UK law. In some circumstances it is even possible for direct applications to be made to the European Court of Human Rights.
On the face of it, this could pose a problem for BA. Currently, the UK Human Rights Act 1998 allows direct application of the Convention only in respect of the activities of public authorities and persons carrying out functions of a public nature, and it does not give private citizens or companies directly enforceable rights against each other. So while the judgments of the Court of Human Rights noted above may lead to future changes in UK law which might then strictly prevent BA taking the sort of action they are taking against strikers, BA may feel that they are currently immune from legal action with their "benefit removing" plans. However, what they need to bear in mind is that the UK Courts and tribunals have a higher calling – and often shown that they are prepared to go to great lengths, even inserting words into Acts of Parliament, to ensure that they fulfill their duty to interpret UK law in a way which will give effect to the Convention. Beware BA.
So, assuming Unite explore every avenue open to us, BA may find they are on treading on thin ice if they go ahead with permanently removing, or in any way reducing the provision of benefits for strikers.
We shall keep you informed of our progress with this matter.