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Industrial action and the law (Part B) - Guidance

URN No: 06/552/A1

Contents

Notice to employers of "official" industrial action
Secondary industrial action
Industrial action to promote closed shop practices or against non-union firms
Industrial action in support of an employee dismissed while taking "unofficial" industrial action
Picketing
Dismissal of employees taking industrial action

For Part A of this document please see:

Industrial action and the law - Guidance

 

Notice to employers of "official" industrial action 

In order to be protected against proceedings by: (i) an employer party to contacts of employment or services which would be broken or interfered with by the action; or (ii) an individual deprived of goods or services because of the action, a union's call for industrial action will need to be covered by adequate notice of official industrial action.

To provide such notice, the union will have to take such steps as are reasonably necessary to ensure that the employer of workers which the union believes have been, or will be, called upon to take part in (or continue with) official industrial action receives a written notice from the union which: 

• reaches the employer after the union has taken steps to notify the employer of the result of the ballot relating to the industrial action, but no less than seven days before the day (or the first of the days) specified in the notice;
   
• specifies: (i) whether the union intends the industrial action to be "continuous" or "discontinuous" (14); and (ii) the date on which any of the affected employees will be called on to begin the action (where it is continuous action), or the dates on which any of them will be called on to take part (where it is discontinuous action);
   
• provides a list of the categories and workplaces of the employees that the union is going to ballot, figures on the numbers of employees in each category, figures on the numbers of employees at each workplace, the total numbers of affected employees; together with an explanation of how the figures provided were arrived at. However, these lists and figures do not necessarily need to be provided in full in situations where the employees pay their union subscriptions by deduction from pay at source e.g. where some or all of the employees pay through the  “check-off” or “DOCAS” systems. In such circumstances, the notice must contain either:

(iii)  those same lists, figures and explanations as set out in (a); or

(iv)  such information as will enable the employer to readily deduce the total number of employees concerned, the categories of employee to which they belong, the number of employees concerned in each of those categories, the workplaces at which the employees concerned work and the number of them at each of these workplaces 

Where only some of the employees concerned pay their union contributions by the “check off”, the union’s notice may include both types of information.  That is, the lists, figures and explanations should be provided for those who do not pay their subscriptions through the check off whilst information relating to check off payments may suffice for those who do.   

The “employees concerned” are those whom the union reasonably believes will be entitled to vote in the ballot

The lists and figures or information supplied should be as accurate as is reasonably practicable in the light of  the information in the union’s possession at the time when it complied with this requirement of the law.

• states that it is a notice given for the purposes of section 234A of the Trade Union and Labour Relations (Consolidation) Act 1992; and
   
• is given by any officer, official or committee of the union for whose act of inducing industrial action the union is responsible in law (as described in section on How the law works when the "statutory immunities" do not apply - see Part A of Industtirla action and the law.

Changes in the union's intentions, for example as to the dates on which action is to be taken, require further notices to be given accordingly. 

With the exception of the requirements relating to continuous and discontinuous action and to the need to give further notices in the event of changes in the union's intentions, the statutory requirements applying to notice of industrial action are for the most part the same as those applying to notice of industrial action ballots, although the content may differ from that given at the earlier because of changes in circumstances.

Where continuous industrial action is suspended, for example for further negotiations between the employer and union, the union must normally give the employer a further notice before resuming the action. The exception to this requirement is where the union agrees with the employer that the industrial action will cease to be authorised or endorsed with effect from a date specified in the agreement but may be authorised or endorsed again on or after another date specified in the agreement and the union: 

• ceases to authorise or endorse the action with effect from the specified date; and
   
• subsequently re-authorises or re-endorses the action from a date on or after the originally specified date or such later date as may be agreed with the employer. 

For this exception to apply, the resumed industrial action must be of the same kind as covered in the original notice. That will not be so if, for example, the later action is taken by different or additional descriptions of workers. In order to avoid misunderstanding, both parties may find it helpful for such agreements to be in writing. 

Secondary industrial action 

It is unlawful to call for, threaten to call for, or otherwise organise secondary industrial action. Such an act by any person or trade union, does not have the protection of the "statutory immunities" described in earlier Sections of this booklet. 

Secondary action - which is sometimes referred to as "sympathy" action, or "solidarity" action - is defined as industrial action by workers whose employer is not a party to the trade dispute to which the action relates. Secondary action can be taken by those working under contracts of employment, or any contract under which one person personally does work or performs services for another. 

For these purposes: 

• where more than one employer is in dispute with his workers, the dispute between each employer and his workers is treated as a separate dispute;
   
• industrial action which is "primary" action (i.e. in contemplation or furtherance of a dispute between workers and their own employer) is not regarded as "secondary" action simply because it has some effect on another dispute between workers and a different employer;
   
• calls on workers to breach, or interfere with the performance of, contracts will not be regarded as calls to take secondary action if made in the course of attendance for the purpose of peaceful picketing as the law allows (see section on Picketing). 

Industrial action to promote closed shop practices or against non-union firms 

Closed shop practices 

There is no immunity for any call for, threat to call for, or other organisation of industrial action to establish or maintain any sort of union closed shop practice. 

Statutory immunity is not available where the reason, or one of the reasons, for the industrial action is:-

• that an employer employs, has employed or might employ a person who is not a member of any trade union, of a particular trade union, or of one of a number of particular trade unions; or
• to pressurise an employer into discriminating against a person on the grounds of non-membership of any trade union, of a particular trade union, or of one of a number of particular trade unions. 

An employer discriminates against a person who is not a union member if his conduct in relation to people who are or may be employed by him is: 

• different according to whether or not the people are or are not members; and
• more favourable to those people who are members. 

Non-union firms 

In addition, there is no immunity for a relevant act (such as calling for, threatening to call for, or otherwise organising industrial action) which is either:

designed to exert pressure on an employer to persuade him to impose union labour only or recognition requirements on contractors (15); or

taken by the employees of one employer and interferes with the supply (whether or not under a contract) of goods or services by a second employer, or can reasonably be expected to have that effect, where the reason, or one of the reasons for the action is that the supplier of the goods or services does not recognise, negotiate, or consult with trade unions or trade union officials. 

Industrial action in support of an employee dismissed while taking "unofficial" industrial action 

There is no immunity for any call for, threat to call for, or other organisation of industrial action where the reason, or one of the reasons, for that action is the fact or belief that an employer has dismissed any employee in circumstances where the employee has no right to complain of unfair dismissal because he was dismissed while taking "unofficial" industrial action.

For these purposes: 

• an "employer" in relation to an employee includes, in the case where the employment has ceased, the employer for whom he used to work;
• an employee who was a member of a union (other than for purposes unconnected with his employment) when he began to take the industrial action, or at the time he was dismissed, will be regarded as having been dismissed while taking "unofficial" industrial action if, at the time of his dismissal, the act of calling for, threatening to call for, or otherwise organising the industrial action was not the act of the union either: (i) because it was done by a person for whose acts the union was not responsible in law (see section How the law works when the "statutory immunities" do not apply - Industrial action and the law Part A); or (ii) because, although done by a person for whose acts the union was responsible in law, the act has been "effectively repudiated" by the union's Principal Executive Committee, President or General Secretary (see also the section How the law works when "statutory immunities" do not apply in Part A). (However, where the relevant act of the union because it has been so "repudiated", an employee is not regarded as taking "unofficial" industrial action until a full "working day" (16) has passed since the day on which the repudiation took place.)
• an employee who was not a union member when he began to take the industrial action in the course of which he was dismissed, nor when he was dismissed, will not be regarded as having been dismissed while taking "unofficial" action unless, at the time of dismissal, there were others also taking the action who were members of a union which had not authorised or endorsed the action. 

Picketing 

When pickets try to persuade people not to go into work, or not to deliver or collect goods, they may in effect be inducing them to break, or interfere with the performance of, their contracts of employment. They may also be interfering with the ability of the employers of those people to fulfil their commercial contracts.

Inducement in the course of picketing is not itself lawful simply because the industrial action supported by the picketing is lawfully organised. For such inducement to be lawful it must satisfy certain conditions laid down by the law. 

These conditions include the following: 

that the picketing is at or near the pickets' own place of work; and

that the purpose of the picketing is peacefully to obtain or communicate information, or peacefully to persuade a person to work or not to work.

There are, however, three exceptions to the rule that an inducement in the course of picketing has immunity only if it is done at or near the pickets' own place of work. 

First, a trade union official may accompany a member of his union whom he represents so long as the member is picketing at his own place of work. Secondly, a person (for example, a mobile worker) who does not normally work at one particular place, or for whom it is impracticable to picket at his actual place of work, may picket at the premises of the employer from which he works or from which the work is administered. Thirdly, a person who is not in employment may picket at his former place of work in contemplation or furtherance of a trade dispute, but only if the termination of his employment gave rise to or is connected with the dispute in support of which he is picketing. 

It should be noted that picketing which is not peaceful and which, for example, leads to violent or abusive behaviour, intimidation or obstruction of the highway is likely to involve offences under the criminal law. The law gives no protection to people who commit such offences in the course of picketing and they may be arrested and prosecuted by the police (see also section How the law works when the "statutory immunities" do not apply in Part A).

More detailed information is contained in a statutory Code of Practice on picketing. The Code outlines the law on picketing and gives practical guidance on its conduct. In particular, it recommends that pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to a workplace. 

As with the Code of Practice on trade union industrial action balloting described in the section Secret ballots on "official" industrial action (Part A), failure to observe the provisions of the statutory Code on picketing does not in itself render a union, or anyone else, liable to any legal proceedings. However, where proceedings are brought against a union, the provisions of the Code are admissible in evidence, and may be taken into account by a court if they appear relevant to any question before it. (Its status is thus similar to, for example, the Highway Code in relation to legal proceedings in connection with offences under Road Traffic Acts.) 

Dismissal of employees taking industrial action

An employer may take various measures, up to and including dismissal, against any employee who takes industrial action. An employee who is dismissed by his employer while taking industrial action may lose his right to claim unfair dismissal. 

How does taking industrial action affect an employee's right to claim unfair dismissal? 

With certain exceptions, the law prevents an employment tribunal from considering a claim of unfair dismissal on its merits if the employee was dismissed while taking part in industrial action. This means that the employment tribunal cannot find the dismissal of the employee to be unfair. The courts have interpreted this legislation as applying to any industrial action - whether or not it involves breach, or interference with, the performance of the employee's contract of employment. The exceptions are as follows. 

Dismissal for taking part in "protected" industrial action starting on or after 24 April 2000
 
Where an employee starts taking "protected" industrial action on or after 24 April 2000, it will be unfair to dismiss him for this reason unless his industrial action lasts for more than eight weeks and the employer has taken such procedural steps as are reasonable to try to resolve the dispute.

The Employment Relations Act 2004 introduces a new provision which changes the length and scope of the protected period for industrial action. For industrial action commencing on or after 6 April 2005, the length of “protected” industrial action is extended from eight to twelve weeks. Lock-out days, where an employer prevents striking employees from returning to work, are disregarded when determining this twelve week period. For example, where an employer locks out employees taking “protected” industrial action, for ten days, during the twelve week period, the twelve week period will be extended by ten days.

Employees who believe they have been unfairly dismissed in this way have the right to complain to an employment tribunal, regardless of their length of service or age.

If the tribunal finds that an employee has been unfairly dismissed, it can make an award of compensation comprising a basic award, based on the employee's age, length of service and weekly pay and calculated in a similar way to a redundancy payment, and a compensatory award, which is an amount the tribunal considers just and equitable for the loss which the employee has suffered as a result of the dismissal, subject to a limit of £50,000 (17). If no employees are still taking protected industrial action over the relevant dispute and if the employee so wishes, the tribunal may make an order for the employee to be re-instated or re-engaged. If the employer refuses to comply with the order, the tribunal may make an award of compensation consisting of the basic and compensatory awards mentioned above and an additional award of between 26 and 52 weeks' pay (subject to a maximum of £11,960)(18). For more details, see Unfairly dismissed? - Regulatory Guidance.

Industrial action is "protected" if an employee is induced to take it by his union and the union in doing so complies with the legal requirements governing the organisation of industrial action set out elsewhere in this booklet. If the union repudiates the industrial action (see section How the law works when the "statutory immunities" do not apply), it ceases to be protected after the working day following the day of the repudiation. (For example, if the union repudiates the action on a Monday, industrial action taken on or after the Wednesday will not be protected.)

What are "reasonable procedural steps"? 

It is for the tribunal in considering a claim for unfair dismissal to decide whether the employer has taken such procedural steps as are reasonable to resolve the dispute to which the industrial action relates. In doing so, the tribunal will not consider the merits of the dispute but will have regard to whether the employer and union had complied with the procedures in any applicable collective or other agreement and whether, after the protected industrial action had begun, they had: 

• offered or agreed to start or restart negotiations;
• unreasonably refused a request to make use of conciliation services; or
• unreasonably refused a request to make use of mediation services in relation to the procedures to be used to resolve the dispute. 

Selective dismissal or re-engagement during industrial action
 
A tribunal may also entertain claims of unfair dismissal on their merits if the employer discriminates between those taking part in industrial action - other than "unofficial" industrial action - by: 

• dismissing some of those taking part in the action, but not others; or (19)
• offering re-engagement to any employee dismissed while taking part in industrial action within three months of his dismissal, but not to all those dismissed. (20)

An employee dismissed while taking "unofficial" industrial action (see section Industrial action in support of an employee dismissed while taking "unofficial" industrial action) will not generally be able to claim unfair dismissal, regardless of whether the employer has discriminated between those taking such action by dismissing, or re-engaging, only some of them. In addition, the law recognises certain cases of dismissal as requiring special protection. Further details of cases where an employee who is dismissed during the course of industrial action will always be able to make a claim for unfair dismissal can be found in sections 237(1) and 238(2A) of the Trade Union and Labour Relations (Consolidation) Act 1992. These cases, generally, relate to family reasons, health and safety, employee representation and whistle blowing. More information can be found in Unfairly dismissed? - Regulatory Guidance

Footnotes

14. For these purposes, industrial action is "discontinuous" if it is to involve industrial action other than on all the days when it might be taken by those concerned. An indefinite strike would, therefore, be "continuous; an overtime ban might be "continuous" or "discontinuous", depending on whether the ban applied to overtime working on all the days on which overtime would otherwise be worked, or to overtime working on only some of those days.

15. It should be noted that the law also prohibits companies, local authorities and others from imposing on contractors requirements that make it a condition of a contract, or of obtaining a contract, that the contractor employs only trade union members or recognises, negotiates or consults with trade unions. These related provisions are set out in detail in a separate document Union membership and non-membership rights - Regulatory Guidance.

16. A "working day" for these purpose means any day other than a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971.

17. This figure is revised annually in line with the retail prices index.

18. This is because for the purposes of this calculation a week's pay is subject to a limit of £230, revised annually in line with the retail prices index.

19. To avoid such a claim of unfair dismissal from a person dismissed while taking part in industrial action, the employer needs to treat in the same way only all those who were taking part in the industrial action on the date of his dismissal and who work at the same establishment.

20. However, after a three month period, the employer may offer re-engagement to any of the employees dismissed while taking part in industrial action, without a tribunal being able to hear a claim of unfair dismissal from employees not offered re-engagement.