his 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 (i.e. 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

What are the "statutory immunities"?
Tests for determining whether there is "statutory immunity"
How the law works when the "statutory immunities" do not apply
When is there a "trade dispute"?
Secret ballots on "official" industrial action

For the following sections please see:

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

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.

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 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?

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 (i.e. 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:

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 intentional 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. 

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). 

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.

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 (i.e. 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

o  stating that the union intends to hold the ballot;

o  specifying the date which the union reasonably believes will be the opening day of the ballot;

o  provides a list of the categories of employee to which the affected employees belong,  figures on the number of employees in each category, figures on the numbers of employees at each workplace, the total number of affected employees; together with an explanation of how these figures were arrived at. However, these lists and figures do not necessarily need to be supplied in full in situations where some or all of the employees pay their union subscriptions by deduction from pay at source e.g. through “check off” or “DOCAS “ systems. In such circumstances, the notice must contain either:

       (i) those same lists, figures and explanations as set out above; or

(ii) such information as will enable the employer to readily deduce the total number of employees affected, 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.

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

But a notice will not fail to satisfy the requirements simply because it does not name any employees. 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 induced by the union, 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. 

Where the industrial action commenced on or after the 6 April 2005 the following statement must appear on every voting paper[1]: "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 twelve 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.

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 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. (see Code of Practice - Industrial action ballots and notice to employers).

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.) 

Footnotes

1. However, as explained in the section Secret ballots on "official" industrial action above and Notice to employers of "official" industrial action (in Part B), 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 - Regulatory Guidance.

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 by the union to take part in or continue with the industrial action, and to no other members.

5. The Trade Union Ballots and Elections (Independent Scrutineer Qualifications) Order 1993 specifies conditions which must be satisfied in order for an individual or partnership to qualify for appointment as a scrutineer. It also specifies certain bodies by name as being qualified.
The Trade Union Ballots and Elections (Independent Scrutineer Qualifications) Order 1993 (Amendment) Order 2002. (Statutory Instrument No 2267) amends the 1993 order by replacing the list of bodies specified by name as being qualified for appointment. In broad terms, the current order covers practising solicitors, qualified accountants and three named bodies Election.Com Limited, Electoral Reform (Ballot Services) Limited, Popularis Limited, and the Involvement and Participation Association. Contact details are available from the Central Arbitration Committee (CAC).

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 eight weeks after the date of the ballot.

8. The union may choose whether or not to give a vote to "overseas members" (i.e. 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.

[1] This statement was also required to appear on every voting paper prior to 6 April 2005, referring to theprotected period for lawfully-organised industrial actionas being 8 weeks,rather than the now extended 12 weeks.