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.
