Industrial Action

General

Industrial action may range from an all-out strike to more limited action such as a work-to-rule overtime ban.

Industrial action in the absence of the legal immunities available to official industrial action may raise legal issues for employers and unions taking part. Employees may be in breach of their contract of employment unless they give notice to terminate it. Their effective resignation would leave the employee very vulnerable, as simply having resigned. It would not be an unfair dismissal and many other rights under the contract for by law which might be otherwise available would be lost, but for the statutory protections.

Action short of a strike or conventional industrial action may constitute a breach of contract. Complex issues may arise in relation to the entitlement of the employer to deduct wages. The matter may be the subject of a claim to the Employment Tribunal in relation to the lawfulness of the deduction. This will be determined by the contract of employment. Complex contractual issues may arise which are specific to the circumstances.

Lawful Industrial Action

Many of the types of actions taken in the context of industrial action would constitute a civil wrong or tort for which the employee and union may be liable for damages or be subject to restraint by injunction. Picketing may constitute trespass or nuisance. Canvassing others not to work or to deal with the employer may constitute the civil wrong of inducement of a breach of contract. Other action taken in the course of a strike or industrial action may amount to a civil conspiracy, interference with contractual relationships or intimidation.

It is important to emphasise that even lawful industrial action does not create wholesale immunity from civil wrong from  the above types of legal claim by the employers and others. Lawful industrial action must remain within the bounds of the terms of the immunity which place limits on what constitutes legitimate industrial action.

The basic requirements for lawful industrial action are as follows

• it must be promoted by a union in support of a trade dispute (as defined)
• there must be a secret ballot meeting certain standards in support of the action
• adequate notice must be given to the employer.

There are limits on secondary action and the extent of permitted picketing.

If the limits of the immunity are not respected the employer or others may seek and obtain an injunction and/or damages against an employee or more likely the union’s funds for loss and damage caused.

Certain protections in the context of re-employment and dismissal arising out of the dispute are not available unless there has been lawful industrial action. Lawful industrial action is that designed to pressurise the employee in relation to terms and conditions of employment and requires concerted action by employees.

Industrial action short of a strike will often be a breach of the employee’s contract of employment. Even so-called work-to-rule, whereby the action may be in literal compliance with the terms of the contract of employment, but be in substance obstructive may be in breach of the employee’s general obligation of good faith. It may justify disciplinary action and even ultimately dismissal in the absence of other considerations. It may justify the employee in deducting wages in some circumstances subject to compliance with the relevant legislation.

The trade dispute is a dispute between employers and workers were workers and workers in connection with the terms and conditions of employment, engagement, dismissal of workers allocation of work membership of the union collective-bargaining or union facilities allocation of work

Nature of Picketing

Picketing normally involves the assembly of a group of workers at or near the employer’s business premises for the purpose of persuading others not to work. In the case of authorised industrial action organised by a trade union, certain immunities are available to the trade union and its members, which are in addition than those which apply in respect of normal lawful assembly and protest.

Picketing by itself does not necessarily incur legal liability or breach any law. However certain forms of picketing may involve civil wrongs of trespass to the subsoil of premises (exceeding the implied right to use the highway outside the premises for passage in the passage) and inducing a breach of contract.

Picketing may have criminal implications where it is conducted in a manner that breaches the criminal law. There is no immunity from criminal prosecution for authorised industrial action.

The statutory immunity applies to lawful authorised industrial action. It covers the civil wrongs of inducing breach of contract. Where particular action breaches other duties, the employer may have recourse to civil proceedings in which event an injunction may issue to restrain or limit picketing to within lawful bounds.

Picketing raises issues of the right to free assembly and free expression protected under the European Convention on Human Rights, which has the force of law in the United Kingdom under the Human Rights Act. The tendency in recent years is that Convention rights have pushed back on the boundaries of the common law torts or civil wrongs so is to balance the rights of the parties slightly more in favour of expression, assembly and protest.

There is a code of practice on picketing made by the Secretary of State which must be taken into account where the question or matter arises in court proceedings.

Legal Implications

Picketing may comprise a public nuisance. This is an action which affects the reasonable use and enjoyment of public areas such as the highway. It includes the obstruction of the highway which is unreasonable in the circumstances.

Picketers have no right to be heard or to approach persons with a view to communicating their message. If they leave space for persons to pass on the highway, there is unlikely to be a public nuisance. In a claim for public nuisance, there is no right of action other than for persons who suffer special damage, i.e. that over and above the community generally.

Picketing may constitute a private nuisance in respect of privately owned premises adjoining the highway. If it unreasonably interferes with the owner or occupier of the property in the enjoyment of his property, it may be an actionable nuisance.

Intimidation at common law where a person threatens another that he will commit an act by unlawful means or commit an unlawful act against that other, thereby causing that other to do or not to do something he is entitled to do, causing that other third-party loss and damage. Most action in the course of picketing even if it involves shouting or abusive language is unlikely to constitute intimidation. The must be a serious threat which induces a third party to act or not to act in a particular fashion.

By statute, actionable harassment is a course of conduct directed at a person on two or more occasions by a person who knows or ought to have known that it amounts to harassment. Harassment is defined to include causing distress or alarm to the extent that it is oppressive and unacceptable. Mere insulting language is not sufficient.

Other civil wrongs may be committed in the course of picketing such as assaults and defamation.

Statutory Immunity

The statutory immunity is limited to acts done in contemplation or furtherance of a trade dispute. This is limited to the extent that they involve inducing or threatening to induce a breach of contract or interferes with the performance of the contract.

The immunity is available subject to conditions;

• the picketing must be for the purpose only of peacefully obtaining or communicating information or peacefully persuading a person to work or not to work
• it must be by workers trade union officials or former workers
• there must be a ballot in support of the strike action. See the separate article in that regard.

Workers may picket at or near their own workplace or if there is more than one workplace or where picketing is impracticable at that workplace, at a near the premises of the employer from which they work or from which their work is administered

Former workers may picket only if they were dismissed in connection with the trade dispute concerned or the dismissal is one of the reasons for the dispute.

Trade union officials may be involved in the picket at near the workplace of a trade union member whom it represents.

Legal Action Issues

There are limited protections for secondary action. Generally, there is no statutory immunity other than in respect of peaceful picketing.

The employer may have a claim against individual employees or a trade union who has organised industrial action where the immunities are exceeded or do not apply. There is a statutory cap on damages against a trade union of £250,000 (in respect of larger unions).

There are statutory provisions by which trade unions are deemed responsible for the civil wrongs of breaching or inducing breach of contract. It is deemed to be done by a trade union authorised or endorsed by the principal executive committee, president, general secretary or anybody in that position under the rules. If the union repudiates the action, it may avoid liability provided if it was not approved by the principal executive committee, general secretary, president or  those specifically empowered to approve the action

An employer may take action against unlawful picketing. The general principle on the grant of injunctions has been varied by legislation in this context. The court is obliged to take account of the likelihood of a defence succeeding at the ultimate trial of the action. The court should not grant an injunction unless it is satisfied that it is necessary to protect the rights of the applicant and does not impede lawful and proper picketing.

The terms of the injunction should be sufficiently clear so that the persons to whom it is directed are aware of what it requires of them.