INDUSTRIAL
ACTION AND THE LAW PL870 (REV 4)
Introduction
Anyone organising
a strike or other industrial action would be liable to legal proceedings
by employers, and others such as their customers and suppliers,
who are damaged by such action, if they were not given special
protection. This protection is provided by statutory immunities
from legal liability.
This document
is designed to give employers, and their customers and suppliers,
a general understanding of the law relating to industrial action.
In particular, it describes legal remedies against certain forms
of industrial action. The document will also assist trade unions,
and workers, to understand the protections afforded them by the
law if they organise or take industrial action. It may also be
useful for individuals contemplating proceedings under the "Citizen's
Right" to restrain the unlawful organisation of industrial action
(ie inducement of industrial action which is unprotected by statutory
immunity).
The legislative
and underlying common law provisions are dealt with only in outline
and details which might be significant in any particular case
may not be covered. This document gives general guidance only,
and is not a substitute for professional legal advice.
Authoritative
interpretations of the law can only be given by the courts.
The contents
of this document apply equally to men and to women but, for simplicity,
the masculine pronoun is used throughout. "Court" means the High
Court in England and Wales and the Court of Session in Scotland.
Contents
Top
of page
What
are the "statutory immunities"?
When workers
go on strike or take other forms of industrial action they will
usually, by doing so, be in breach of their contracts of employment
or their contracts for services. This means that when trade unions
or trade union officials, or others, call for, or otherwise organise,
industrial action they are in practice calling for breach, or
interference with the performance, of contracts. They may also
be interfering with the ability of the employer of those taking
the industrial action, and of other employers, to fulfil commercial
contracts.
Under the
common law, which is basically case-law developed by the courts
as opposed to statute law passed by Parliament, it is unlawful
to induce people to break a contract or to interfere with the
performance of a contract, or to threaten to do either of these
things. This means, for example, that without some special protection,
trade unions or trade union officials would face the possibility
of legal action being taken against them for inducing breaches
of contract every time they called a strike.
The "statutory
immunities" were introduced into legislation to stop this happening.
They have the effect that trade unions and individuals can, in
certain circumstances, organise industrial action without fear
of being sued in the courts. It should be noted that the immunities
protect principally those who call for, threaten to call for,
or otherwise organise industrial action. They do not protect individuals
who take industrial action from legal proceedings by their employer
for breaking their contracts, although they can in certain circumstances
protect them from dismissal.
The available
immunities are subject to a number of restrictions, so as to provide
an effective remedy against some of the most damaging and disruptive
industrial action. It is also a condition of immunity that before
calling a strike or other industrial action a trade union must
first obtain the support of its members through a properly conducted
ballot, and that it must provide at least seven days' notice to
an employer of official industrial action to be taken against
him.
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Tests
for determining whether there is "statutory immunity"
When a trade
union or individual calls for, threatens to call for, or otherwise
organises industrial action a number of tests must be satisfied
if the union, or other person, calling for or organising the action
are to have the protection of the statutory immunities. In summary,
immunity will apply only where:
- There is
a trade dispute, and the action is called wholly or
mainly in contemplation or furtherance of that dispute.
- A trade
union which calls for, or otherwise organises, the action has
first held a properly conducted secret ballot.
- A trade
union which calls for, or otherwise organises, the action has
provided the required notice of official industrial action
to employers likely to be affected, following the ballot.
- The action
is not "secondary action" (unless the act is a call for
such industrial action made in the course of peaceful picketing
at a picket's own place of work as the law allows).
- The action
is not intended to promote union closed shop practices,
or to prevent employers using non-union firms as suppliers.
- The action
is not in support of any employee dismissed while taking unofficial
industrial action.
- The action
does not involve unlawful picketing.
These conditions
are each examined separately and in more detail in sections When
is there a trade dispute? to Picketing
of this document.
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How
the law works when the "statutory immunities" do not apply
Who
can bring proceedings?
Where immunity
for organising industrial action does not apply, employers and
others (such as their customers and suppliers (1))
who are damaged, or likely to be damaged, by the action may take
civil proceedings in the courts against the responsible union
or individual.
It is, of
course, still necessary for the person wishing to bring civil
proceedings to show that an unlawful, unprotected, act has been
done or is threatened; that he is party to a contract which will
be (or has been) broken or interfered with by the unlawful act;
and that he is likely to suffer loss, or has done so, as a result.
In addition,
an individual deprived of goods or services because of the unlawful
organisation of industrial action (ie inducement of industrial
action which is not protected by statutory immunities) can also
bring proceedings to stop this happening. For this purpose, it
is not necessary for the individual to show that he is party to
a contract which will be (or has been) broken or interfered with
by the unlawful act.
Who
can be sued?
Civil proceedings
will normally be taken against the trade union or individual organising
the industrial action. In the case of picketing it may be possible
to sue the individual pickets who are inducing interference with
the performance of contracts, as well as the organisers of the
unlawful picketing.
The fact that
a union is responsible for organising industrial action for which
there is no immunity does not prevent legal proceedings from being
brought against the individual organisers.
Trade
union liability
The law lays
down the circumstances in which a trade union is to be held responsible
for a relevant act (such as inducing, or threatening to induce,
a breach, or interference with the performance, of a contract).
Where these circumstances apply, a union will be held responsible
for a relevant act regardless of any term or condition to the
contrary in its own rules, or in any other contractual provision
or rule of law.
Under the
law, a union will be liable for any relevant act which is done
(or authorised or endorsed) by:
- its Principal
Executive Committee;
- its General
Secretary or President;
- · any person
given power under the union's own rules to do; or
- any other
committee of the union or any official (2)
of the union, including those who are employed by the union
and those, like shop stewards, who are not.
For these
purposes:
i. a "committee
of the union" is any group of persons constituted in accordance
with the rules of the union; and
ii. a relevant
act will be taken to have been done (or authorised or endorsed)
by an official if it was done (or authorised or endorsed) by
a group of persons, or any member of a group, to which an official
belonged at the relevant time if the group's purposes include
organising or co-ordinating industrial action.
However, if
a relevant act which is done (or authorised or endorsed) by such
a committee or official is "effectively repudiated" by the union's
Principal Executive Committee, General Secretary or President,
the union will not be held liable.
In order to
avoid liability in this way, the Principal Executive Committee,
President or General Secretary of the union must repudiate the
act as soon as reasonably practicable after it has come to the
knowledge of any of them, and the union must, without delay:
- give written
notice of the repudiation to the committee or official in question;
and
- do its
best to give individual written notice of the fact and date
of the repudiation to (i) every member of the union who it has
reason to believe is taking part - or might otherwise take part
- in industrial action as a result of the act; and (ii) the
employer of every such member.
The written
notice of repudiation given to the union's members must contain
the following statement:
"Your union
has repudiated the call (or calls) for industrial action to
which this notice relates and will give no support to unofficial
industrial action taken in response to it (or them). If you
are dismissed while taking unofficial industrial action, you
will have no right to complain of unfair dismissal."
However, even
if it takes these steps a union will not be considered to have
"effectively repudiated" an act if:
- the Principal
Executive Committee, President or General Secretary subsequently
behave in a way which is inconsistent with the repudiation;
or
- at any
time up to three months after the repudiation, a party to a
commercial contract which has been, or may be, interfered with
by the relevant act requests the union's Principal Executive
Committee, President or General Secretary to confirm that the
act has been repudiated, and written confirmation is not given
forthwith.
Remedies
Where immunity
does not apply, those party to contracts which are broken, or
the performance of which is interfered with, by the organisation
(or a threat to organise) industrial action may seek an injunction
from the courts.
An injunction
may be granted on an interim basis pending a full hearing of the
case, but the union or individual against whom the order is sought
will have the legal right to be given a chance to put their case.
If an injunction
is not obeyed, those who sought it can go back to court and ask
to have those concerned declared in contempt of court. Anyone
found to be in contempt of court may face heavy fines or other
penalties which the court may consider appropriate. For example,
a union may be deprived of its assets through sequestration (where
the funds are placed in the control of a person appointed by the
court who may, in particular, pay any fines or legal costs arising
from the court proceedings).
It is also
possible to claim damages for losses suffered (which may, but
need not, be preceded by an application for an injunction) if
the basis of the proceedings is a claim that an act involved breach,
or interference with the performance, of contracts. There are
upper limits on the amounts which can be awarded by way of damages
in any proceedings against a trade union. These limits depend
on the size of the union and are currently as follows:
| Members: |
| Fewer
than 5000 |
£10,000 |
| 5,000
- 24,999 |
£50,000 |
| 25,000
- 99,999 |
£125,000 |
| 100,000
or more |
£250,000 |
Other
unlawful acts
Where there
is legal immunity for those who organise industrial action, this
protects only those organisers from legal action for a relevant
act (such as inducing breaches, or interference with the performance,
of contracts). There is no immunity for strikers or their organisers
who commit other civil wrongs or criminal offences.
To give two
possible examples:
- If strikers
or their organisers commit an unlawful trespass, for example
by entering premises without authority or by staging a "sit-in",
they are liable to be sued for that and any other unlawful acts
involved just like any other members of the public who occupy
premises unlawfully.
- If strikers
or their organisers commit a criminal offence, such as international
damage to property, they are liable to be arrested and prosecuted
by the police in the same way as anyone else who commits such
an offence.
It should
also be noted that the union has immunity only if the sole
ground of liability is a relevant act (such as inducing breach
of contract). If some other ground of liability exists then immunity
will be lost.
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When
is there a "trade dispute"?
A person or
trade union who calls for, threatens to call for, or otherwise
organises industrial action has legal immunity only if acting
in contemplation or furtherance of a "trade dispute".
This means
that if immunity is to apply - for example, to any call for industrial
action - those concerned must be able to show: (i) that there
is a "trade dispute", or that a "trade dispute" is imminent; and
(ii) that the action is being called for in contemplation, or
in furtherance, of that dispute.
The law provides
a detailed definition of what constitutes a "trade dispute" for
this purpose. In general, however, there are two main conditions
which normally must be satisfied:
- there
must be a dispute between workers and their own employer;
and
- the dispute
must be wholly or mainly about employment related matters
such as their pay and conditions, jobs, allocation of work,
discipline, negotiating machinery or trade union membership.
The relevant
definition does not cover disputes:
- between
groups of workers or between trade unions, where no employer
is involved in the dispute;
- between
workers and an employer other than their own employer;
- between
a trade union and an employer, where none of that employer's
workforce are in dispute with him;
- which
are not wholly or mainly about employment related matters like
pay and conditions;
- which
relate to matters occurring overseas (except where workers taking
action in this country in support of the dispute are likely
to be affected by its outcome).
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Secret
ballots on "official" industrial action
If a trade
union decides to call on its members to take or continue industrial
action, it will have no immunity unless it first holds a properly-conducted
secret ballot (3). The circumstances in which
a trade union is regarded as being responsible for organising
such action, and the remedies available if a union calls for industrial
action without having immunity, are described in sections Tests
for determining whether there is "statutory immunity" and
How the law works when the "statutory immunities"
do not apply of this document.
The law prescribes
certain requirements which must be satisfied in relation to such
a ballot. These requirements are as follows:
Independent
Scrutiny
For a ballot
where more than 50 members are given entitlement to vote (4),
the union must appoint a qualified (5) person
as the scrutineer of the ballot (6) whose terms
of appointment must include the production of a report on the
conduct of the ballot. This report must be produced as soon as
reasonably practicable after the date of the ballot, and in any
event not later than four weeks after that date.
The union
must provide a copy of the scrutineer's report to any union member
who was entitled to vote in the ballot, or any employer of such
a member, who requests one within six months of the date of the
ballot. The copy must be supplied as soon as reasonably practicable,
and free of charge (or on payment of a reasonable fee specified
by the union).
Notice
of the ballot and sample voting paper for employers
The union
must take such steps as are reasonably necessary to ensure that
any employer who it is reasonable for the union to believe will
be the employer of any of its members who will be entitled to
vote receives certain information in advance of the intended opening
day of the ballot (ie the first day when a voting paper is sent
to any person entitled to vote), as follows:
- Not later
than the seventh day before the intended opening day, written
notice
- stating
that the union intends to hold the ballot;
- specifying
the date which the union reasonably believes will be the
opening day of the ballot; and
- containing
such information in the union's possession as would help
the employer to make plans (for example, as appropriate,
to enable him to warn his customers of the possibility of
disruption so that they can make alternative arrangements
or to take steps to ensure the health and safety of his
employees or the public or to safeguard equipment which
might otherwise suffer damage from being shut down or left
without supervision) and bring information to the attention
of those of his employees who it is reasonable for the union
to believe (at that time) will be entitled to vote. In particular,
the union must provide as a minimum any information which
it possesses as to the number, category or workplace of
the employees concerned. But a notice will not fail to satisfy
the requirements simply because it does not name any employees.
In some circumstances the requirement is likely to be satisfied
by indicating to the employer that entitlement to vote will
be given to all of the union's members engaged on, for example,
a specified kind of work activity, or in a certain grade,
or at a particular location. In some cases, if the employer
would otherwise be left in doubt, more specific information,
such as a combination of these items of information, may
be needed, but in no case will a union be required to give
employees' names. Ultimately, it will always be a question
on the facts of a particular case whether the notice gives
an employer the required details.
- Not later
than the third day before the intended opening day, a sample
of the voting paper (and any variants of it) which will be sent
to his employees.
Timing
of the ballot and related action
If the inducement
of industrial action to which the ballot relates is to be protected
by the law, some part of the action must be induced and start
to take place within four weeks from the date of the ballot. This
period may be extended to eight weeks if the union and
employer agree (7). (To reduce the risk of misunderstanding,
both parties may find it helpful for such agreements to be in
writing.) If a ballot results in a "Yes" vote for both a strike
and action short of a strike and action short of a strike is induced
and starts to take place within the relevant period, the ballot
would also continue to protect strike action subsequently, and
vice versa.
A union cannot
avoid liability merely by holding a properly conducted secret
ballot after previously calling for industrial action without
one.
Entitlement
to vote?
All those
members who it is reasonable at the time of the ballot for the
union to believe will be called upon to take part in or continue
with the industrial action (8) must be given
the opportunity to vote. No one else may be given a vote without
invalidating the ballot.
The ballot
will also be invalidated if anyone denied entitlement to vote
is subsequently called on to take part in the action by the union
with the exception of union members who were not members at the
time of the ballot or who were members but who it was not reasonable
for the union to expect would be called upon to take action (for
example because they changed jobs after the ballot).
Where the
members of a union with different workplaces are to be balloted,
a separate ballot will be necessary for each workplace unless
one of the conditions set out below is met. It will be unlawful
for the union to organise industrial action at any such workplace
where a majority of those voting in the ballot for that workplace
have not voted "Yes" in response to the relevant required question
(or questions). (If an employee works at or from a single set
of premises, his workplace is those premises. If not, it is the
premises with which his employment has the closest connection.)
In summary,
the conditions for holding a single ballot for more than one workplace
are:
- at each
of the workplaces covered by the single ballot there is at least
one member of the union affected (9) by the
dispute; or
- entitlement
to vote in the single ballot is given, and limited, to all of
a union's members who, according to the union's reasonable belief,
are employed in a particular occupation or occupations by one
employer or any of a number of employers with whom the union
is in dispute; or
- entitlement
to vote in the single ballot is given, and limited, to all of
a union's members who are employed by a particular employer
or any of a number of employers with whom the union is in dispute.
It is possible
for a union to hold more than one ballot on a dispute at a single
workplace. If the conditions above are met, some or all of those
ballots may also cover members in other workplaces.
Voting
procedures
Voting must
be by the marking of a voting paper.
The voting
paper must:
- state
the name of the independent scrutineer;
- clearly
specify the address to which, and the date by which, it is to
be returned;
- be marked
with a number, which is one of a series of consecutive numbers
used to give a different number to each voting paper.
- make clear
whether voters are being asked if they are prepared to take
part in industrial action which consists of a strike, or in
industrial action short of a strike, which for this purpose
includes overtime bans and call-out bans; and
- specify
the person or persons (and/or class or classes of person/s)
whom the union intends to have authority to make the first call
for industrial action to which the ballot relates, in the event
of a vote in favour of industrial action (10).
Those voting
must be allowed to do so without interference from or constraint
imposed by the union or any of its members, officials or employees.
So far as reasonably practicable every member properly entitled
to vote must be:
- able to
vote in secret;
- sent
a voting paper by post to his home address (or any other address
which he has requested the union, in writing, to treat as his
postal address); and
- given
a convenient opportunity to vote by post at no direct cost to
himself.(11)
While the
question (or questions) may be framed in different ways, the voter
must be asked to say by answering "Yes" or "No" whether he is
willing to take part in or continue with the industrial action.
If the union has not decided whether the industrial action would
consist of a strike or action short of a strike (including overtime
bans or call-out bans), separate questions in respect of each
type of action must appear on the voting paper.
The following
statement must appear on every voting paper: "If you take part
in a strike or other industrial action, you may be in breach of
your contract of employment. However, if you are dismissed for
taking part in a strike or other industrial action which is called
officially and is otherwise lawful, the dismissal will be unfair
if it takes place fewer than eight weeks after you started taking
part in the action, and depending on the circumstances may be
unfair if it takes place later." That statement must not be qualified
or commented upon by anything else on the voting paper.
The voting
paper must specify the person, persons, or description of persons
who the union intends to have authority to call for industrial
action to which the ballot relates, in the event of a vote in
favour of industrial action. For this purpose, anyone so specified
need not be authorised under the union's rules to call on members
to take industrial action, but must be among those for whose acts
the union is responsible in law - on which see section How
the law works when the "Statutory immunities" do not apply
of this document.
Majority
support
Majority support
must be obtained in response to the question (or questions) on
the voting paper which are appropriate to the type of industrial
action concerned, ie:
- In the
case of a strike, majority support must be obtained in response
to a question on the voting paper which asks if members are
prepared to take part in (or continue with) strike action;
- In the
case of action short of a strike, majority support must be obtained
in response to a question on the voting paper which asks if
members are prepared to take part in (or continue with) action
short of a strike;
- If the
action consists or may consist of a strike and other industrial
action, majority support must be obtained for each type of action
in response to separate questions on the voting paper asking
if members are prepared to take part in (or continue with) each
type.
Announcement
of ballot results
A union must,
as soon as reasonably practicable after holding an industrial
action ballot, take steps to inform all those entitled to vote
(12), and their employer(s), of the number
of:-
- votes
cast in the ballot;
- individuals
answering "Yes" to the required question (or questions);
- individuals
answering "No" to the required question (or questions); and
- spoiled
voting papers.
Where separate
workplace ballots are required these details must be notified
separately for each such workplace to those entitled to vote there.
Features
of the application of the balloting requirements
The following
material deals with the application of particular features of
these balloting requirements.
What if
any particular requirement is not satisfied?
Apart from certain small accidental failures that are unlikely
to affect the result, a failure to satisfy the statutory requirements
(13) relating to the ballot or giving employers
notice of industrial action will give grounds for proceedings
against a union by an employer, a customer or supplier of an employer,
or an individual member of the public claiming that an effect
or likely effect of the industrial action would be to prevent
or delay the supply of goods or services to him or to reduce the
quality of goods or services so supplied. With the exception of
failures to comply with the requirements to give notice to employers,
these will also give grounds for action by the union's members.
If a union,
fails only to provide the required notice of intent to ballot,
or the sample voting paper, to a particular employer who should
have received it, only: (i) that employer or (ii) any individual
deprived of goods or services because of the industrial action,
can bring proceedings. Failure to satisfy any other balloting
requirements will expose the union to proceedings brought by others
(for example by its own members).
What happens
if there is a call for industrial action by a person not specified
on the voting paper, but no call from any person so specified?
A ballot
will not give a union protection against legal proceedings if
industrial action is called by a person not specified on the voting
paper (or by a person of a description not so specified). So if
there is a call for action by someone - for whose act the union
was responsible in law - other than a specified person, and no
call is made by a specified person, the union would be at risk
of proceedings being brought against it unless it effectively
repudiated the call. (The section How the law works
when the "statutory immunities" do not apply of this document
describes this "repudiation" process).
Statutory
Code of Practice on industrial action balloting
The Secretary
of State has issued a statutory Code of Practice to promote good
practice in the conduct of trade union industrial action ballots.
(Industrial action ballots and notice
to employers (PL962)).
Failure to
observe the provisions of the statutory Code 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.)
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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);
- contains
such information in the union's possession as would help the
employer to make such plans and bring information to the attention
of those of his employees who the union intends should take
part in the action;
- 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 of this document).
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.
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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 (ie 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 Picketing
of this document).
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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.
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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 of this document); 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 of this document). (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.
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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 of this document).
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 section Secret ballots on "official" industrial
action of this document, 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.)
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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. 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 the Employment Legislation document Unfairly
dismissed? (PL712).
What
is "protected" industrial action?
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 whistleblowing. More information
can be found in the Employment Legislation document Unfairly
dismissed (PL712).
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Footnotes
1.
However, as explained in the sections Secret
ballots on "official" industrial action and Notice
to employers of "official" industrial action of
this document, if there is no immunity because of a union's failure
to provide an employer with notice of its intent to conduct an
industrial action ballot, sample voting paper, or notice of official
industrial action, only the employer of the workers concerned
(or an individual deprived of goods or services by the action)
can bring proceedings.
2.
An 'official' is any person who is an officer of the union or
of a branch or section of the union or any person who is elected
or appointed in accordance with the unions rules to be a representative
of its members, including any person so elected or appointed who
is an employee of the same employer as the members, or one or
more of the members, he is elected to represent - eg. a shop steward
3.
The law also gives union members a statutory right to restrain
their union from inducing them and others to take any industrial
action without the support of a properly conducted ballot. This
statutory right is described more fully in the section Industrial
action ballots of Industrial action
and the law: a guide for employees and trade union members
(PL869).
4.
Entitlement to vote in the ballot must be given to all the union's
members who it is reasonable at the time of the ballot for the
union to believe will be induced to take part in or continue with
the industrial action, and to no other members.
5.
In broad terms, the current order (SI 1993 No. 1909) covers practising
solicitors, qualified accountants and three named bodies (Electoral
Reform Ballot Services Limited; The Industrial Society; and Unity
Security Balloting Services Limited, now called Election.Com Limited
).
6.
Where separate workplace ballots are required, the scrutiny procedures
must be followed in respect of each separate ballot if the number
of members given entitlement to vote aggregated across all of
the ballots is more than 50.
7.
A union may be allowed to make its first call for industrial action
more than four weeks after the date of the ballot if either (a)
the employer and union agree on an extension, for example to enable
talks which are making progress to continue, of up to eight weeks
after the date of the ballot or (b) an injunction granted by a
court or an undertaking given by the union to the court prohibits
the union from calling for industrial action during some part,
or the whole, of the four weeks following the date of the ballot,
and the injunction subsequently lapses or is set aside or the
union is released from its undertaking. In the latter case, a
union may forthwith apply to the court for an order which, if
granted, would provide that the period during which the prohibition
had effect would not count towards the four week period for which
ballots are normally effective. However, if the court believes
that the result of a ballot no longer represents the views of
union members, or that something has happened or is likely to
happen which would result in union members voting against taking,
or continuing with, action if there were a fresh ballot, it may
not make such an order. In any case, a ballot can never be effective
if a union's first call for industrial action is made more than
twelve weeks after the date of the ballot.
8.
The union may choose whether or not to give a vote to "overseas
members" (ie members other than merchant seamen and offshore workers
who are outside Great Britain at the time of the ballot). However,
members who are in Northern Ireland throughout the voting period
for an industrial action ballot and who will be called upon to
take part in, or continue with, the industrial action must be
given entitlement to vote in the ballot if (i) their place of
work is in Great Britain and the ballot is of members at their
place of work; or (ii) the industrial action to which the ballot
relates will involve members in Great Britain as well as Northern
Ireland and the ballot is a general one covering workplaces in
both Great Britain and Northern Ireland. Members required to be
given entitlement to vote by either of these requirements do not
count as "overseas members" for the purposes of the law on industrial
action balloting.
9.
Section 228A(5) of the 1992 Act defines for this purpose which
members are affected by a dispute.
10.
Where a person who has not been not specified on the voting paper
calls industrial action before it is first called by a specified
person, then - in order to be certain that the ballot will give
protection against legal proceedings - the union should if possible
ensure that the call by the unspecified person is effectively
repudiated.
11.
There is a limited exception to these rules for the balloting
of union members who are merchant seamen where the union reasonably
believes that they will be employed in a ship at sea (or outside
Great Britain) at some time in the period during which votes may
be cast and that it will be convenient for them to vote while
on the ship or where the ship is.
12.
If overseas members of a trade union have been given entitlement
to vote in an industrial action ballot the detailed information
about its result need not be sent to them, but the information
supplied to non-overseas members in accordance with the statutory
requirements must distinguish between votes cast, individuals
voting, and spoiled ballot papers to show which details relate
to overseas, and which to non-overseas, members. (For these purposes
members in Northern Ireland given entitlement to vote do not count
as "overseas" members.)
13.
Set out in sections 226-232A and section 234A of the Trade Union
and Labour Relations (Consolidation) Act 1992 as amended by the
Trade Union Reform and Employment Rights Act 1993 and the Employment
Relations Act 1999.
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 (PL871).
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.
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