Freshfields Bruckhaus Deringer, which is the official legal services provider to the London Olympics, believes that a striker’s legal protection from dismissal in a prolonged dispute is untested, but could cause problems for the airline.
Nick Squire, employment, pensions and benefits partner at Freshfields Bruckhaus Deringer, said: "BA has hinted it might dismiss strikers engaged in any further strike action arising from the continuing dispute.
"This raises a complex legal issue. Under strike legislation, striking workers enjoy a range of protections against dismissal. 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."
He added that the legal provisions in this area were complex and have not been fully tested in court.
"In practice, the proper characterisation of the 'new' dispute is likely to be a key consideration. If a court were to conclude that the subject-matter of the dispute is on all fours with the 'original' dispute, one suspects the court would decide that the protected period should not be permitted to start running again where it also determines that the principal purpose of a fresh ballot is to try to give employees extended protection.
"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, but the mere holding of a new ballot may not be sufficient. In any event, any employer wishing to dismiss employees in connection with industrial action needs to take great care to avoid liability."
British Airways has been in dispute with staff over changes to working conditions since 2009.