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
Ballot
There is a requirement for a prior ballot to approve an industrial action. The requirements are complex and somewhat technical. At least seven days’ prior notice of the ballot must be given to the employer. The ballot paper must be furnished to it.
The must be an independent scrutineer (with n exception for certain smaller ballots) who fulfils certain functions with a view to ensuring the fairness and integrity of the ballot.
The ballot must be of the union members who are intended to take in the industrial action immediately or ultimately if the dispute escalates. There must be separate ballots for each workplace save in defined circumstances where an aggregate ballot is permitted. This may be permitted where at least one member is affected by the dispute in each workplace or all members are employed by a particular employer with whom they are in dispute
The ballot must seek a “yes” or “no” answer in respect of strike or other industrial action. There must be distinct approval of a strike so that there may be separate ballots approving the strike or other industrial action. The ballot must also contain prescribed wording which refers to the implications of the strike in terms of dismissal and the conditional protection in respect of reinstatement.
Each person entitled to vote must be given the opportunity to do so freely. The vote will usually be postal. The ballot must be counted and published. The scrutineer must confirm whether the ballot was lawful and freely conducted.
Industrial action pursuant to the ballot must be called by the person designated on the ballot paper within four weeks (in most cases) At least seven days’ notice must be given to the employer of the proposed action. The employer must be allowed to identify although not necessarily personally, the workers and the groups to be balloted in the initial notice and in the ultimate notice of strike action.
In some cases, the categories of employee workplaces and an explanation of the calculation of the numbers involved must be furnished. The information must be as accurate as is reasonably practicable in light of the information available to the union at that time.
Protection from Dismissal
There is protection in respect of termination of employment/dismissal in consequence of official industrial action. An employee who has taken part in official industrial action which has been lawfully authorised by the union is deemed unfairly dismissed
- if the dismissal takes place within the period of 12 weeks (the protected period)
- if the employee ceased to take part in the industrial action during the 12-week period and is later dismissed for taking part in the action during that 12-week period; or
- if the dismissal takes place after the protected period and the employee continues to participate in the action and the employer has not taken such procedural steps as would have been reasonable the purpose of resolving the dispute
In other cases, there is no claim to unfair dismissal unless the employer has dismissed and re-engaged persons selectively, with respect to those who took part in the dispute.
