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BA Strike - Your Thoughts & Questions III

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BA Strike - Your Thoughts & Questions III

Old 7th Dec 2010, 06:30
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Originally Posted by Dairyground
Baggersup asks:



It has been common for many years for businesses to deduct union dues from payroll and transmit the deductions to the union. Employess who wish to manage union subscriptions in this way have obviously given the company permission to make the deductions and to have the union informed that they wish to subscribe in this way. so the company has a lower bound on the number of employees who are union members; the number may be swelled by other individuals who choose, for whatever reason, other payment methods.
Exactly and that is why BA probably differs from the wishful thinking of the pprune community. No doubt it the number of check off employees got within an amount of 50% of the employee group, then wheels would be put in motion, either by derecognition or serving notice, depending on whether it was a voluntary or statutory agreement.
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Old 7th Dec 2010, 07:50
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BA cabin crew have a history of taking sick days rather than going on strike. It could be argued that if you are absenting yourself from work on a strike day and you are not genuinely sick then you are either a: taking unofficial industrial action or b: putting yourself in breach of contract by defrauding the company. Both are actions that can lead to dismissal.

BA have been pretty even handed about this as all they chose to do was to warn the crew that if they were sick on strike days they would be treated as strikers unless they could prove that they were genuinely sick. For those that were sick this should present an obstacle, all they have to do is get a sick note. Having been warned before hand that this would be a requirement only those who were not really sick or were too lazy or stupid to get a sick note will be on the wrong end of this issue.

A question for all the lawyers out there, is a sickness policy part of your contract and therefore needs agreement to vary, or is it a company policy that can be varied by the company with prior notice?
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Old 7th Dec 2010, 08:10
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JT.
I would say that would depend on if (as is my experience) the sickness policy was negotiated. Any changes to policy, if negotiated, would fall under 'Terms and Conditions' and would form part of the contract....
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Old 7th Dec 2010, 09:10
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But I really can’t imagine that it is lawful in the UK for an employer to have on his office-wall a graph that shews the month by month decline of numbers of Union members.

There's no breach of information governance or the Data Protection Act if an employer chose to have that graph as there's no personal information.

Any employer who has any form of collective arrangement with a union has to know how many are in the union to ensure that the union being negotiated with is still legitimately representing staff.

It's up to the union to ensure that this info is up to date.
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Old 7th Dec 2010, 09:28
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Originally Posted by Juan Tugoh
BA cabin crew have a history of taking sick days rather than going on strike. It could be argued that if you are absenting yourself from work on a strike day and you are not genuinely sick then you are either a: taking unofficial industrial action or b: putting yourself in breach of contract by defrauding the company. Both are actions that can lead to dismissal.
That is the case if due process has been followed. It appears that this is not the case.
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Old 7th Dec 2010, 09:43
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I do not see how due process changes the basic argument. You are either sick or you are not. If not and you have absented yourself on a strike day and then subsequently claim to have been sick you are defrauding the company and have taken unofficial IA. BA have not chosen to follow this line.

If you are stupid enough to have failed to protect yourself from lost wages due to being genuinely sick on a strike day, that is your own fault. The law allows self certification for illness, but this is to prevent doctors from being overwhelmed with patients requiring sick notes for minor issues that prevent attendance at work but that do not require medical attention - e.g. the common cold. Cabin crew have in the past exploited this loophole which essentially allowed them to go on strike without losing money. BA have responded to this "tradition" and acted to protect themselves. Those suffering loss have only themselves to blame.

Last edited by Juan Tugoh; 7th Dec 2010 at 09:59.
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Old 7th Dec 2010, 10:35
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Juan

I am neither a lawyer nor an HR person, but as a company director both these experts have informed me that if we publish a process involving people, we must abide by it or risk bad consequences via legal challenge and imagine this may be what Litebulbs is thinking.

Having read Litebulb's many postings, I think we probably see many things in the same way, although from different positions.
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Old 7th Dec 2010, 11:53
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Firstly, remember that generally in HR terms that innocent until proved guilty does NOT apply.

So a member of staff was ill during IA despite fair warning by the employer. If they now take the employer to court, how are they going to prove they were ill without medical evidence?
(which if they had in the first place the situation would not gave arisen)
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Old 7th Dec 2010, 12:03
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If they now take the employer to court, how are they going to prove they were ill without medical evidence?
Remember that a tribunal isn’t a court; the rules of evidence are very different. You don’t have to prove things so much as convince the chairman that you are being truthful.

So, if you walk in and say “I was sick” then unless the employer presents a video of you at Wimbledon or some other compelling statement that convinces the chair you were not ill, a pattern to sickness for example, then in most cases as far as the chair is concerned, ill you were.

That has at least been my experience, usually, which is why I avoid (as an employer) IT’s where I can.
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Old 7th Dec 2010, 13:32
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IIRC the time limit for ET claims of this nature is 3 months from the date at which the money would normally have been paid. Why have we therefore not heard of ET's in the Heathrow area being paralysed by such a volume of claims ? We can only assume that potential claimants are out of time. Claims of this type made in time are usually conducted in a "quick" procedure held before a Chairman, and not a full panel, to get them out of the way expeditiously. We must assume also therefore that if claims have been made in time, that they would have been expedited using the simpler hearing.

The time limit for a Civil Breach of Contract claim (ie to a County court, not an Employment Tribunal) is more extended. However, unlike an ET where there is an automatic presumption in favour of the claimant until an employer proves otherwise (the employer is called a Respondent, not a defandant), civil court procedures require the claimant to prove that a contract has been materially breached, and the defendant to attack against the claimants evidence. This means that the defendant in this case can legitimately say "prove you were ill", whereas as a Respondent at an ET can only provide evidence to demonstrate that the claimant may not have been ill.
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Old 7th Dec 2010, 13:59
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so if I have got this right...

- Employees had three months to put their case through an Employment Tribunial, where the burden of proof would have been on the employer.

- Now three months have expired, the only option is to go through to a County Court, where the burden of proof is on the employee.

Makes sense then why this is now on the list of demands from BASSA to end the dispute, but begs the question why did they not advise affected employees to put cases to an Employment Tribunial within the three month window?

A failure from BASSA to represent their members, or another reason?
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Old 7th Dec 2010, 22:11
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I won’t quote numbers because they change all the time._ But BASSA quotes a larger figure for strikers than BA quotes._ However BASSA is now saying that some of those who BA labelled as strikers were innocent sick persons._ This makes the discrepancy between the figures of BA & BASSA even larger!
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Old 7th Dec 2010, 23:33
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There are 2 types of sick pay – statutory and contractual. I would imagine that a company of BA’s magnitude has contractual sick pay in place for their employees. It seems to me that a lot of people believe that protected industrial action must not have an effect on the statutory and contractual rights of strikers. However, the effect of industrial action on statutory and contractual employment rights of strikers has been documented and published in the local government employment website from which I quote:

Statutory Rights – Statutory Sick Pay:
Employees who are absent from work through illness before a stoppage of work retain their right to statutory sick pay (SSP) during the period of industrial action. Where, however, an employee is away from work because of a trade dispute when their sickness begins, they are excluded from SSP, except where he or she has no 'direct interest' in the dispute and has not participated in it at any time.

Contractual Rights - Sick Leave:
Employees who are absent on account of sickness before industrial action starts should be assumed to be on sick leave, providing that the necessary certification is produced. If the employee reports as sick on the day the action starts, the authority will need to make its own judgment, taking into account any evidence that the employee can provide, whether he or she should be regarded as on sick leave or on strike.
Source: http://www.lge.gov.uk/lge/core/page.do?pageId=119719#contents-3[

Also, I have noticed in the Statutory Sick Pay form itself on Part E from the last page (page 7) , the following clarification of the “Reasons why you cannot get SSP”

H . You cannot get SSP if there is a trade dispute at your workplace. But you may get SSP if
  • you were already getting SSP when the dispute began, or
  • you can show that you had no direct interest in the dispute.
We use trade dispute to mean
  • a strike
  • a walkout
  • a lockout
  • another dispute about work.
Source: http://www.dwp.gov.uk/advisers/claimforms/ssp1_print.pdf

Futhermore, notwithstanding the above effects during strikes, under normal circumstances (i.e no ongoing industrial action) contractual sick pay may have slightly different rules to the statutory sick pay in terms of provision of medical certificate for employees calling in sick. The following quotes are from the Citizens Advice Bureau – Employment in England:

Telling your employer you are sick – contractual sick pay

Your employer may ask you to follow certain rules about telling them you are off sick. For example they may insist that you:
  • provide a medical certificate immediately
  • phone in by a certain time of day to tell them you are sick
  • phone in more than once a week when you are off sick
  • phone in yourself (not ask someone else to do it on your behalf).
Your employer must let you know what these rules are in advance and if you break the rules, your employer can refuse to pay you your contractual sick pay. For example, our employer can refuse to pay you contractual sick pay for the days you are off and do not call in sick. Also if you break the rules, you will be breaking the terms of your employment contract and eventually this could lead to you losing your job.

Source: Off work because of sickness
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Old 8th Dec 2010, 09:41
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I Googled the heading of the above article, and found a Unison info sheet from a University branch, which says the info is taken from the Unison Industrial Action handbook. The bit about SSP is quoted below -

Workers who are absent on sick leave when a stoppage of work starts retain their right to statutory sick pay during the period of industrial action. If an employee reports as sick on the day the action starts, the employer can be expected to make their own judgement as to whether they should be regarded as on sick leave or on strike.

Edit - I then found the IA Handbook itself, here http://www.unison.org.uk/acrobat/17518.pdf see page 13 of the document.

Last edited by just an observer; 8th Dec 2010 at 09:51.
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Old 8th Dec 2010, 10:47
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From the Unite Absence at work handbook here: http://www.unitetheunion.org/pdf/Job...ide%20pgv2.pdf

It discusses the differences between statutory sick pay and occupational sick pay. For statutory sick pay:
An employer must provide its employees with details of their sick
pay entitlement as part of the written statement of employment
particulars. Many employers provide an occupational sick pay
scheme that is more generous than statutory sick pay (SSP).
To claim statutory sick pay the employee must notify their
employer. The employer may have its own notification procedure
but it cannot insist that the employee notifies them in person
nor insist on a doctor’s certificate for the first seven days of
absence
for this purpose.
But for occupational sick pay, which I believe BA provides:

Some employers will provide an occupational sick pay scheme.
The scheme must pay at least the equivalent of statutory sick
pay. As occupational sick pay schemes are a contractual
entitlement the employer can set its own rules and guidelines.
My bolds

So from this it seems that for SSP an employer cannot insist on a doctors note for the first 7 days, but if an employee wishes to take advantage of the enhanced benifits of OSP they have to follows the T&Cs that the employer has laid down. This may include sick notes required for any sick period during time of industrial action.

regards
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Old 8th Dec 2010, 13:09
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Yawn!!!

looking at the CC thread, postings are few and far between (ignoring quality). even the most vociferous Bassa-ites seem to have lost interest in pouring out their rhetoric(do they have to learn it by rote as in days of yore?)

i wonder whether this now indicates that the dispute is effectively over? there are very sound reasons for all the union factions to let this rest and to let the issue of a further ballot quietly slip away.

ba have moved to a position of strength vis-a-vis cabin crew since this issue first arose. should the union attempt to resurrect the question of industrial action, on whatever pretext, ba are unlikely to be materially affected. that in itself would demonstrate how enfeebled the CC factions have become.

in addition, to hold a ballot that commanded respect( ie. cannot be challenged at law) the union would have to calculate and disclose accurate membership figures. the ballot would reveal how many bothered to vote( a bit like red len's election perhaps: 15% of how many?) and anything less than a resounding 'yes' vote would further cripple the union factions.

enlightened (?) self interest suggests it would be better for all to maintain the fiction that the dispute is on-going and that officers should remain in place until either it is resolved or until the end of next year at latest.
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Old 8th Dec 2010, 15:34
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Latest From Amicus

Latest from Amicus, who haven't been invited to the party...

8th December 2010 - AMICUS UPDATE: Meetings With BA


It is our understanding that a meeting was held yesterday between Unite and British Airways. However, we were only made aware of this late on Monday evening. In spite of the serious nature of these discussions, the company refused to offline anyone from AMICUS to attend.
We have yet to receive any feedback from anyone on the progress of these talks, and we believe that another meeting has been scheduled for Thursday, with a meeting of all reps to be organised at some point very soon.
In the meantime, we have no reason to believe that the imminent ballot of industrial action will not be underway as planned.


source : . LATEST NEWS UPDATES
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Old 8th Dec 2010, 16:12
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I think it may be spelled ... M A R G I N A L I S E D
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Old 8th Dec 2010, 16:58
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or .... I R R E L E V A N T
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Old 8th Dec 2010, 18:54
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In the High Court tomorrow is the appeal of BA against the decision of the 20 January 2010 Employment Appeals Tribunal which had endorsed the decision of a 2008 Employment Tribunal.
If BA fails then it will be a three-in-a-row failure and Eliza Mak will be entitled to compensation for being dismissed on the grounds that she a BA hostess had reached the age of 45. Eliza Mak was employed in Hong Kong.
COURT 70
Before LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS and
LORD JUSTICE AIKENS
Thursday, 9th December, 2010
Not Before half-past 10
APPEAL
From Appeal Tribunals
(Employment Appeal Tribunal)
FINAL DECISIONS
A2/2010/0305 British Airways Plc -v- Mak and Ors. Appeal of Appellant from the order of The Employment Appeal Tribunal, dated 20th January 2010, filed 11th February 2010.
_________________link

Last edited by notlangley; 9th Dec 2010 at 00:07. Reason: correction of age from 55 to 45 (thanks Zimmerfly)
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