Member Article

In the current economic downturn it seems that industrial relations are once again in the spotlight for all the wrong reasons. Recent "wildcat" strikes over the use of foreign labour suggest a trend towards more militant attitudes within the workforce and the possibility of greater industrial unrest.

The UK's labour laws are very complex. Both trade unions and their members have numerous legal rights and protections relating to recognition, collective bargaining and protection from dismissal for industrial action or trade union related reasons. In our main article this month we take a preliminary look at some of the issues concerning industrial action. This is a very complicated area and employers who may be facing a break down in industrial relations should seek specialist employment advice at the earliest opportunity.

What is industrial action? The term "industrial action" is not defined in legislation. It includes strikes i.e. a total withdrawal of labour by employees and action short of a strike such as overtime bans and working-to-rule. The action is the refusal to work with the intention of putting pressure on the employer.

A unilateral withdrawal of labour by employees will, on the face of it, be a breach of their contract of employment. Action short of a strike may also constitute a breach of contract depending upon the contents of the contract. Trade unions can be liable in tort for inducing members to breach their contracts. However, both unions and individuals will enjoy immunity from legal action by the employer in certain circumstances.

What is the difference between official and unofficial industrial action? Industrial action is "official" action if the trade union whose members are taking part in the action has endorsed or authorised it. "Unofficial" action occurs when there are employees taking part who are members of a union that has not endorsed the action.

Union action can be endorsed by any official of the union, including shop stewards and if action is official the union can be liable in tort unless they repudiate the industrial action or take the correct steps prior to it having been commenced.

Where members of more than one trade union are taking part in the industrial action, all unions must have endorsed it otherwise it is unofficial.

When do trade unions enjoy immunity? For industrial action to be lawful there must be a 'trade dispute' i.e. it must be a dispute between workers and their own employer and it must be wholly concerned about employment related matters, for example pay, working conditions, jobs, discipline and so on.

The definition of "trade dispute" 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.

Secondary action encompasses picketing by non-employees, picketing of connected businesses, such as suppliers and sympathetic strikes by employees who are not in dispute with their own employer. Secondary action is not protected and those involved can be sued or prosecuted for damages.

Are there any other requirements? A strike ballot should not take place until any agreed procedures have been completed and all other means of resolving the dispute have been considered. Employers can take legal action against any trade union which calls for strike action before a secret ballot has taken place.

By law, trade unions must give 7 days' notice of their intention to ballot members to an employer stating that:

it intends to hold a ballot;

the date on which the union reasonably believes the ballot will take place; and

any other information the union has which will help the employer make plans.

The union must also give the employer a sample voting paper at least 3 days before the ballot. If the employer has several sites, a separate ballot may need to be held at each workplace where strike action is proposed.

If the workers vote in favour of strike action, it must generally begin within 4 weeks of the ballot taking place and employers must be given at least 7 days' notice of the start date.

Can employees picket their employer? The law restricts picketing so that employee may only picket at or near the place of work of the employer engaged in the trade dispute. Therefore, employees who are on strike (and their union representatives) can legitimately picket their own workplace. However, it has been held by the High Court that ex-employees could not picket their ex-employer's new place of work. Employees are protected from legal action as long as the picketing is peaceful, causes no obstruction, does not intimidate others and there is no damage.

Can striking employees be dismissed? An employee dismissed whilst taking unofficial action cannot claim unfair dismissal. The dismissal of any striking employee during the first 12 weeks of lawfully organised official strike action will be deemed unfair. Employers can, however, dismiss an employee after the 12 week protected period if it can show it has made genuine attempts to negotiate, which includes the proper use of any joint dispute resolution procedures.  Even if the union had not lawfully balloted, employees can bring unfair dismissal claims if an employer discriminates between employees by dismissing some of those who have taken part in the action but not others or if it re-employs some employees but not others within 3 months of the dismissal. This protection also applies to employees involved in lawfully organised official action after the protected period has elapsed.

 

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