CHAPTER 19 Trade unions and industrial action

Taking industrial action is likely to be a breach of contract, but the law offers some immunity if the breaches are part of a trade dispute.

Industrial action is likely to constitute a breach of contract and may give rise to a number of common law liabilities. Statutory immunity from these torts is provided under TULRCA 1992 if the actions can be shown to be taking place ‘in contemplation or furtherance of a trade dispute’. This is often called the ‘golden formula’. Trade unions and industrial action

The economic torts inducing a breach of contract intimidation conspiracy interference with business by unlawful means inducing a breach of statutory duty economic duress. Trade unions and industrial action

The importance of the ‘golden formula’ If the ‘golden formula’ does not apply, it will usually be easy for an employer to show that one of the torts is being committed. An interim injunction will usually be granted on application on that basis. Trade unions and industrial action

What is a trade dispute? A trade dispute is defined by TULRCA Section 244 as a dispute between workers and their employer which relates wholly or mainly to one or more of seven possible grounds: Trade unions and industrial action

– terms and conditions of employment or the physical conditions of work – engagement, non-engagement, termination or suspension – the allocation of work duties – matters of discipline – facilities for union officials – the membership or non-membership of a union – the machinery or procedures for recognition, negotiation or consultation. Trade unions and industrial action

What is ‘contemplation or furtherance’? The word ‘contemplation’ refers to something imminent or likely to occur, so the ‘golden formula’ cannot be invoked if an action was taken too far in advance of any dispute. ‘Furtherance’ assumes the existence of a dispute and an act will not be protected if it is not for the purpose of promoting the interests of a party to the dispute or occurs after its conclusion. Trade unions and industrial action

Primary and secondary action ‘Primary action’ refers to action taken directly against the employer in dispute, and ‘secondary action’ is that taken against the employer’s suppliers and customers. Trade unions and industrial action

Union responsibility Under TULRCA Section 219 unions will be held responsible for the actions of their members and must either repudiate the action or accept responsibility by making the dispute ‘official’. Trade unions and industrial action

A union will be held liable for the actions of its committees and officials unless those actions are repudiated by the principal executive committee, the president or the general secretary, and the union has done its best to inform the officials, and those taking part in the industrial action, of its repudiation. Trade unions and industrial action

Ballots and notice The immunity of TULRCA S219 can only apply if the union has authorised or endorsed the action. It can only do this with the support of a majority of the workers concerned, obtained not more than four weeks before the start of the action. Trade unions and industrial action

Trade unions must take all reasonably necessary steps to ensure that the employer of those to be called upon to take part in industrial action receives written notice of both a ballot and any proposed action. The union must also provide information about the number and categories of employees concerned and their workplaces. Trade unions and industrial action

The procedural rules for calling for industrial action are complex and time-consuming because they are expressly designed to discourage unions from taking industrial action. Trade unions and industrial action

Remedies available to employers Damages: Section 22(2) TULRCA provides for damages in any proceedings in tort. ‘Any proceedings’ is important because it provides for separate actions by all those who feel damaged by the industrial action. The limits to damages depend on the size of the union and may be between £10,000 and £250,000. Trade unions and industrial action

Injunctions: An employer suffering economic harm may seek an injunction to stop unlawful action. In circumstances of urgency an interim injunction can be sought. Trade unions and industrial action

Picketing Picketing is lawful in contemplation or furtherance of a trade dispute if it takes place near the employee’s own place of work, or if the picket is an official of the union accompanying a member, with the intention of peacefully persuading someone to work or abstain from working. Trade unions and industrial action