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URN No: 06/551
This document is designed to give employees, trade union members, and others a general understanding of the statutory rights and protections given to those who are called upon, or otherwise induced, to take industrial action. These rights are additional to any others which a union's own rulebook may provide.
The contents of this document apply equally to men and women but, for simplicity, the masculine pronoun is used throughout. Except where otherwise indicated, "court" is used to mean the High Court in England and Wales and the Court of Session in Scotland.
When a trade union calls for, threatens to call for, or otherwise organises industrial action, its members may wish to consider the following matters:
If not, a member may wish to bring legal proceedings against his union on grounds of breach of contract to ensure that those terms are complied with 1.
If not, a member induced (or likely to be induced) to take part in such action may wish to exercise his right to take legal proceedings to restrain his union from calling for the action without the support of a ballot.
Industrial action may put jobs at risk. If a member decides to disobey his union's instruction to take such action, he has statutory protection against union discipline taken because he refuses to take industrial action.
This document gives general guidance only and is not a substitute for professional legal advice. Authoritative interpretations of the law can be given only by the courts.
Employees who take industrial action will know that there may be damaging financial consequences for them, since they are unlikely to receive any pay if they withdraw their labour. They should also be aware that they are putting their jobs at risk.
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.
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.
Where an employee started taking "protected" industrial action on or after 24 April 2000, it is 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.
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.
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 2. 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 3). For more details, see: Unfairly dismissed?
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. More details of these requirements are given in Industrial action and the law. If the union repudiates the industrial action 4, 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).
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:
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:
An employee dismissed while taking "unofficial" industrial action will not generally be able to claim unfair dismissal, regardless of whether the employer had 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?
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 when he was dismissed, will be regarded as having been dismissed while taking "unofficial" industrial action if, at the time of his dismissal, the union has not authorised or endorsed the act of calling for, threatening to call for, or otherwise organising the industrial action. This will be the case where the act was done by a person for whose acts the union was not responsible in law or the act has been "effectively repudiated" by the union's Principal Executive Committee, President or General Secretary 4.
(Where the relevant act has ceased to be an 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" 7 has passed since the day on which the repudiation took place. But when that time has passed, any employee taking, or continuing to take, the industrial action will be regarded as taking "unofficial" action whether or not he has been told of the repudiation by written notice or by any other means.)
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 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 authorised or endorsed the action, or unless none of those taking part in the action were members of a trade union.
The law gives every union member the right to apply to the court for an order to restrain his union from inducing him and other members to take any kind of industrial action in the absence of a properly conducted secret ballot, in which the majority of those voting indicate they support the action.
Any member induced, or likely to be induced, by his union to take industrial action (ie a strike or action short of a strike) without a properly conducted secret ballot supporting the action may apply to the court. A member may apply whether or not he is able or intends to comply with the inducement.
The timetable for hearing an application is a matter for the court. However, it can grant an injunction on an interim basis to restrain the union from organising the industrial action pending a full hearing of the case. A court may be willing to consider an application on this basis very quickly.
If the court is satisfied that:
it must make an order requiring the union to take steps to ensure that:
The union will therefore have to withdraw any authorisation or endorsement of the industrial action which led to the order, and do so in such a way as to leave members in no doubt that it has been withdrawn.
Having complied with the order, it will then, of course, be open to the union to conduct a proper secret ballot which would give it protection from legal proceedings for organising industrial action.
If the court order is not obeyed, anyone who sought it can go back to court and ask that the union (or any particular individual(s) concerned) be declared in contempt of court.
A union found to be in contempt of court may face heavy fines or other penalties which the court may consider appropriate; for example, refusal to pay fines may lead the court to order the union's assets to be seized.
In addition, the law provides a special statutory right under which a union member may bring legal proceedings against the union's trustees on the ground that they have caused or permitted the unlawful application of union property (see section on Unlawful use of union funds or property by trustees).
The law sets out a number of requirements which must be satisfied if the ballot is to give the union protection against proceedings for organising industrial action. A failure to satisfy any of these requirements means that a member can bring proceedings to stop his union calling for industrial action 9. The requirements are set out under the following seven headings:
For a ballot where more than 50 members are given entitlement to vote 10, the union must appoint a qualified 11 person as the scrutineer of the ballot, 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.
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) (see below). (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:
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.
Votes cast must be accurately and fairly counted (only accidental misrecording on a scale which could not affect the result is allowable without the ballot being rendered invalid).
Majority support must be obtained in response to the question (or questions) on the ballot paper which is appropriate to the type of industrial action concerned ie:
As soon as is reasonably practicable after the ballot the union must take steps necessary to ensure that all those entitled to vote, and any employer who it is reasonable for the union to believe was at the time of the ballot the employer of any such person, are informed of the number of:
Where separate workplace ballots are required, these details must be notified separately for each such workplace to those entitled to vote there.
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.
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).
There can be serious consequences for those taking part in "official" industrial action (see section on The consequences for employers of taking industrial action). In the past union members have been disciplined by their unions for working during a strike or other industrial action, but union members should be allowed to make up their own minds whether or not to take (or continue) industrial action.
The law makes union discipline unjustifiable in these circumstances. This helps ensure that individuals are free to decide for themselves whether or not to take or continue with industrial action.
An individual will have been disciplined by a union if any of the following penalties are imposed on him:
An individual will also have been disciplined by a union if:
An individual is treated as having been disciplined by a union not only where the decision to impose the penalty was made in accordance with union rules but also where it was made:
Discipline will be unjustifiable if it is for:
Examples of conduct for which individuals are protected against unjustifiable discipline are:
Individuals will also be protected against unjustifiable discipline if, for example, they refuse to pay a fine imposed on them by a union for working during a strike, or if they have indicated their intention to go to work during a dispute.
Union discipline will also be unjustifiable 16 in a number of other circumstances. These are described in full in Unjustifiable discipline by a trade union - Guidance. Union discipline will, for example, be unjustifiable if it is imposed on an individual for consulting or seeking advice or assistance from the Certification Officer or any other person.
An individual who believes he has been unjustifiably disciplined by a trade union may make a complaint to an employment tribunal. This should be done within three months of the union's disciplinary decision. Tribunals have discretion to extend this period only where:
An application form ET 1 (E/W) or ET 1 (Scot) is in the booklet Making a claim to an Employment Tribunal available from Jobcentre Plus offices, Citizens Advice Bureaux, from the DTI publications Orderline on 0845 015 0010, or from the Employment Tribunals Service website. The applicant should send the completed form to the appropriate Tribunal Office as explained in the booklet.
This may be sufficient remedy in itself, particularly if the union withdraws the disciplinary action. The individual has the right, however, to make an application for compensation to be paid by the union and/or for an order that the union pay to him the amount of any fine he has paid but not had refunded.
An application for compensation or for an order should be made to:
The application will be considered if it is made more than four weeks but less than six months after the date of the tribunal's declaration that disciplinary action was unjustifiable.
The tribunal will award whatever compensation it considers just and equitable in all the circumstances. Factors taken into account will include, where appropriate, the individual's duty to reduce any financial loss, and whether or not his conduct contributed to the disciplinary action. The current maximum amount of compensation which may be awarded is £65,200. Additionally, the amount of compensation payable will be not less than £6,100 where, on the date that the application was made to the Employment Tribunal, the determination infringing the applicant’s right not to be unjustifiably disciplined has not been revoked or where the union has failed to take all the steps necessary for securing the reversal of anything done for the purpose of giving effect to the determination. These figures are revised annually in line with the retail prices index.
An appeal can be made to the Employment Appeal Tribunal (EAT) on any question of law arising from an employment tribunal's decision or the proceedings before it.
In addition to the right not to be unjustifiably disciplined, individuals now have the right not to be excluded or expelled from a union for anything other than a 'permitted reason'. The permitted reasons are defined in law, and include geographical or occupational limits on recruitment and conduct - but not the conduct described in this document for which discipline would be unjustifiable. An individual who is expelled from the union for any other reason may bring a complaint to an employment tribunal, and may be awarded compensation.
An individual who is expelled from his union for conduct described in this document may therefore have two rights of complaint: one under the law relating to unjustifiable discipline, and one under the law on exclusion or expulsion from a trade union. In this situation, the individual may make two separate complaints to the employment tribunal, but if one of those complaints is declared to be well-founded, he will not be able to proceed with the second.
Further information about the right not to be excluded or expelled from a trade union may be found in Union membership and non-membership - Guidance.
When a union organises industrial action, it will be vulnerable to legal proceedings unless it ensures that it complies with statutory requirements and with the provisions of the union's own rulebook. In addition, if it fails to comply with any such requirement it may also be using its funds or property unlawfully. It would certainly be unlawful, for example, for a union to continue to use its funds or property to support industrial action if, as a result of legal proceedings, a court has issued an order against the union restraining it from inducing that action.
The law guarantees a union member's right to take legal action against the trustees of his union in such circumstances. A union member has the right to take legal proceedings against his union's trustees if they apply, or permit the application, of union funds or other property for unlawful purposes. Union trustees cannot under any circumstances, including those which might arise during industrial action, unlawfully use union funds or property, or allow them to be used, for unlawful purposes. Nor may they comply with any unlawful direction given to them under the rules of the union without risking legal proceedings being taken against them by a union member.
A member may apply to the court if the trustees of his union have:
The member may also apply if he believes that his union's trustees propose to do any of these things.
Where the claim is that union trustees are proposing to use the union's funds or property unlawfully, or comply with an unlawful direction, any member may apply to the court. If the claim is that the union's funds or property have already been used unlawfully, or an unlawful direction has been complied with, the application to the court must be made by a current member who was also a member when the funds or property were used, or when there was compliance with the direction.
The timetable for hearing an application is a matter for the court. However, it can grant an order on an interim basis which will apply pending a full hearing of the case and the court may be willing to consider an application on this basis very quickly. What remedy is available? If the court is satisfied that a union's trustees have acted, or propose to act, unlawfully in the manner complained of, it has the power to:
If the court makes an order in response to a complaint concerning application of union property in breach of the terms of a court order - ie to facilitate contempt of court - it must order the removal of all the union's trustees, except for any who can convince it that they should remain. These powers are without prejudice to any other power which the court may have to remedy a breach of trust by union trustees.
If the trustees fail to comply with an order of the court then they will be in contempt and will be liable as individuals for any penalties, such as fines, which the court may impose for contempt. It will be unlawful for a union to pay their fines or otherwise indemnify them 18.
The receiver will remain in control of the union's funds until the court is satisfied that it is right to return that control to the union's trustees.
If the court orders the removal of a trustee, it will be apparent from the terms of the trust (set out in the union's rules) whether there is a requirement for a new trustee to be appointed in his place or whether the trust can be administered by the remaining trustees.
If the court removes all the trustees, it can be expected to place the union's funds in the hands of a receiver until the union appoints suitable new trustees in accordance with its rules.
1The union rulebook forms a "contract of membership". If any of the rules of the union are broken, a member may bring an action in the courts for breach of contract.
2This figure is revised annually in line with the retail prices index.
3This 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.
4The circumstances in which an individual may do an act which renders a union responsible in law, and the "repudiation" process, are described in the Industrial action and the law: a guide for employers, their customers and suppliers, and others. If an act is to be "effectively repudiated", for example, it must be repudiated by the union's Principal Executive Committee, President or General Secretary as soon as reasonably practicable after coming to the knowledge of any of them, and the union must take certain steps thereafter (which include doing its best, without delay, to give written notice of the repudiation to relevant members and to the employer(s) of such members).
5To 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.
6However, 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.
7A "working day" for these purposes means any day other than a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971.
8A union is only responsible in law for inducing industrial action if it "authorises or endorses" the inducement, so making the action "official". A union might "authorise" the inducement of industrial action from the outset, or "endorse" industrial action induced earlier after the action has started. The circumstances in which a union will be held to have authorised or endorsed action are laid down in statute. The Employment Legislation document Industrial action and the law provides further details.
9There are additional requirements to be satisfied if a union's organisation of industrial action is to be protected from proceedings brought by an employer, or by an individual deprived of goods or services because of unlawfully organised action. Details of these requirements are set out in the Employment Legislation guidance Industrial action and the law and Industrial action and the law: Citizen's right to prevent disruption - Guidance.
10For the purposes of deciding whether there is a requirement for scrutiny of an industrial action ballot (see above), the number of those regarded as being entitled to vote in a ballot will be determined by adding together all those given entitlement to vote (see section on "Entitlement to vote"), regardless of whether separate place of work ballots are required (see section below on "Balloting members at more than one workplace"). Where the number produced is more than 50, the scrutiny procedures must be followed in respect of the ballot or in respect of each separate place of work ballot.
11The 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.
12A 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 action, 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.
13The 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 workplace 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.
14There is a limited exception for the balloting of union members rules in the case of the balloting of members who are merchant seamen who the union reasonably believes 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 ship or where the ship is. So far as reasonably practicable, the union must ensure that, in these circumstances, those members get a voting paper while on board ship (or at the place where the ship is located), and an opportunity to vote on board ship (or at that place).
15Guidance on whose acts are to be held to be "acts of the union" for this purpose is given in the Employment Legislation document Industrial action and the law. For example, a call for industrial action by any of a union's officers or officials (including a shop steward) will be an act for which the union is responsible in law.
16Disciplinary action may not, however, be unjustifiable if it is for unprotected conduct which formed part of protected conduct. If the union can distinguish between the two parts and show that individuals would be disciplined for the unprotected part whether or not it took place in connection with the protected conduct, then discipline for the unprotected conduct will not be unjustifiable. For example, a member who spoke out against a call to take industrial action would be protected against unjustifiable discipline because such conduct is protected under the law. However, if he expressed his opposition to the proposed industrial action by acting in a disruptive way at a union meeting and the union could show that individuals who acted in that way were always disciplined, then disciplinary action for disruptiveness would not be unjustifiable. Disciplinary action for making the assertion itself would, however, be unjustifiable, even if members had previously always been disciplined for making assertions.
17In Scotland, a judicial factor on the union's property.
18It is unlawful for the property of a union to be applied in or towards indemnifying individuals for any penalty imposed by a court for an offence or for contempt of court. This is described in more detail in Trade union funds and accounting records - Guidance.
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