union liability for industrial action

If legislation did not intervene, an employer would be able to ask a court to order the trade union or its officials to call off the action and pay the employer compensation for the economic loss the action had caused. This is because, in calling for industrial action, a trade union and its officials are usually encouraging their members to break their contractual obligations towards their employer. In doing so they are also interfering with the employer's ability to fulfil its obligations under its commercial contracts with its customers and suppliers. It is a civil wrong (known in England and Wales as a 'tort' and in Scotland as a 'delict') to encourage people to break their contracts or to interfere with the performance of contracts in this way.

The law accepts, however, that a union should have some leeway to organise industrial action without the risk of being sued, provided that the industrial action meets certain conditions. These conditions are complex, and are set out in the Trade Union and Labour Relations (Consolidation) Act 1992. This section refers to action that meets these conditions as 'protected' industrial action. Because of the complexity of the law, companies that are considering challenging industrial action through the courts should contact their Association for advice.

Is the union legally responsible?

A union can be held legally responsible for industrial action only if it has authorised or endorsed the action. This means that the action must have been approved by whoever has the power to do so under the union's rules, or the union's principal executive committee, president or general secretary, or any other committee or official of the union given the power.

An 'official' includes anyone elected or appointed to represent members under the union's rules, so it covers lay officials such as shop stewards as well as full-time officials. If the action was approved by a group whose purpose was to organise or co-ordinate industrial action and the official was a member of that group, then the official is viewed as having approved it.

A union can authorise action by a formal, minuted decision. It can also authorise action in an informal way, by, for example, giving approval by a 'nod and a wink'.

Repudiating the action

If action has been approved by an official or committee of the union other than the principal executive committee, the union has the opportunity to disown or 'repudiate' it. This involves the union's principal executive committee, president or general secretary writing to the official or committee as soon as reasonably practicable after they learn of the action. The union must also do its best to notify all its members who are taking part or might take part in the action that it has repudiated it, and give the date of the repudiation. The notice must be sent to each member individually and must contain this statement:

'Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal.'

The effect of unofficial action on employees' right to claim unfair dismissal is discussed elsewhere in this Guide (official or unofficial? ). The union must also give the employer involved in the dispute written notice that it has repudiated the action, and the date of repudiation.

Repudiation will be ineffective if the executive committee, president or general secretary of the union then acts in a way that is inconsistent with that position, such as informally indicating they support the action.

Purpose of the action

In order to be 'protected', industrial action must be taken 'in contemplation or furtherance of a trade dispute'. A dispute is a trade dispute only if it relates to issues such as terms and conditions of employment, allocation of work, and disciplinary issues. Action that was taken for political purposes would therefore not be protected.

Certain action taken to enforce union membership or union recognition is not protected. An employer could challenge action that was organised:

• to force the employer to employ only union members; or
• to force the employer to require its customers or suppliers to employ only union members or to recognise a union; or
• to disrupt the employer's relationship with a supplier that does not recognise a union.

However, action taken against an employer to pressurise it to recognise a trade union may be protected if it meets the other legal requirements for protected action.

Secondary action

Workers who are not in dispute with their own employer may be prepared to take action in support of another group of workers who are in dispute with theirs. This is referred to as 'secondary action' or 'sympathy' or 'solidarity' section. Secondary action is generally not protected.

Support for unofficial action

A union can also be sued for organising action in support of employees dismissed while taking part in unofficial industrial action. The meaning of 'unofficial' industrial action in this context is explained elsewhere in this section (official or unofficial? ).

Ballots

In order to be protected, industrial action must in almost all circumstances have the support of a ballot that meets certain conditions. There is a Code of Practice ( Industrial action links ) on the conduct of industrial action ballots and notice to employers that summarises the legal rules and gives practical guidance on the fair conduct of ballots. This Code will be taken into account by a court if it is asked to decide whether a proper secret ballot has been held.

The conditions that must be met by the ballot are complex, but in summary:

1. All the members that the union reasonably believes at the time of the ballot will be taking part in the action must be given a vote, and nobody else. This includes not only employees but also those working under any other form of contract to perform work personally, so it may cover self-employed and casual workers. If the union accidentally fails to include some members in the vote, this can be disregarded if the numbers involved are unlikely to affect the outcome of the ballot.
2. Ballot papers must be sent out to members by post and members must be entitled to vote by post, without interference from the union and at no direct cost to themselves. A union campaigning for a 'yes' vote does not amount to interference.
3. If the members who are to be called upon to take action work in different workplaces, it may be necessary to hold separate ballots for each workplace. A single ballot covering more than one workplace is permissible, however, if:
   – there is at least one union member at each workplace who is directly affected by the dispute; or
   – the union is balloting every member in a particular occupational category who is employed by a particular employer involved in the dispute; or
   – the union is balloting every member who is employed by a particular employer involved in the dispute.
4. At least seven days before the ballot, the union must notify the employer that a ballot is to be held and when the first ballot papers will be sent out. The union must also give the employer certain information about the individuals it will be balloting, namely: the total number to be balloted; the categories of employees involved and the total number in each category; the workplaces involved and the number at each workplace; and an explanation of how those numbers have been arrived at. If the employer deducts union subscriptions from wages, the union has the alternative option of providing the employer with information that will enable it to deduce the relevant information by reference to the employees covered by the check-off arrangement. The union is under no obligation, however, to give the employer the names of the individuals who are being balloted.
5. At least three days before the ballot is due to open, the union must provide the employer with a sample of the voting paper.
6. If the union is assessing support for strike action and action short of a strike, the voting paper must have a separate question on each. For these purposes, an overtime ban and a call-out ban amount to action short of a strike. The paper must also contain certain information, (see 'Ballot paper contents' below).
7. A majority of those voting in the ballot must vote in favour of the question that relates to the type of action that the union intends to call.
8. As soon as reasonably practicable after the ballot, the union must let the employer and those entitled to vote know the number of votes cast, the number of 'yes' and 'no' votes cast for each question on the ballot paper, and the number of spoiled papers.
9. If more than 50 people are to be balloted, the union must appoint a qualified independent person to scrutinise the ballot. Within four weeks of the ballot, the scrutineer must prepare a report on whether it met the statutory requirements. The union must supply a copy of the report to any of the people who were balloted and to the employer, if they request a copy within six months of the ballot.

If a union official or committee has authorised or endorsed unballoted industrial action, the union cannot escape legal liability for it simply by holding a ballot. It must first repudiate the action in the way explained above (repudiating the action ) and then hold a ballot.

Ballot paper contents

The following lists the key components to be included in a ballot paper:

1. One or both of the following questions (which can be framed in any way provided they require a 'yes' or 'no' answer):

• are you prepared to take part in or continue to take part in a strike?
• are you prepared to take part in or continue to take part in action short of a strike?

2. The following statement, unqualified or commented upon:
'If you take part in a strike or other industrial action, you may be in breach of your contract of employment. However, if you are dismissed for taking part in a strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than twelve weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later.'

3. The following points should also be included:

• the address to which the paper must be returned;
• the date by which the paper must be returned;
• the person or persons authorised to call for industrial action if the vote is in favour of industrial action;
• the number of the paper. (The papers must be numbered with consecutive numbers);
• if an independent scrutineer has been appointed, the name of the scrutineer.

Organising the action

In order to be protected, industrial action must not only be approved in a ballot. It must also be organised in a way that meets the following conditions:

1. The union must not call for the action, or authorise or endorse it, before the ballot has been held.
2. The action must be called by whoever was named as the person authorised to do so on the ballot paper.
3. Workers who were not balloted must not be called on to take action, unless they were not members of the union at the time of the ballot or it was not reasonable for the union to believe at the time of the ballot that they would be called on to take part. This means, for example, that the union can call out members who have joined the union since the date of the ballot or who have changed jobs since the ballot and moved into a category of workers that the union intends to call out. The union can also call out workers who were not balloted because it was not reasonably practicable to give them a vote. This could include, for example, workers who had only recently joined the employer and had not told the union of the change in their employment.
4. The action must take place within four weeks of the ballot. (If votes are cast on more than one day, the date of the ballot is the last of those days.) If the employer and the union agree, this can be extended to up to eight weeks, giving them more time to reach a negotiated settlement of the dispute. (The period can be further extended in certain circumstances if the action was initially prohibited by a court order but the order has since expired or been overturned.)
5. At least seven days before the action is due to begin, the union must write to the employer with certain information about the employees that the union intends to call on to take action, namely: the total number involved; the categories of employees involved and the number in each category; the workplaces involved and the number at each workplace; and an explanation of how those numbers have been arrived at. If the employer deducts union subscriptions from wages, the union has the alternative option of providing the employer with the relevant information by reference to the employees covered by the check-off arrangement. The union is under no obligation, however, to give the employer the names of the individuals who will be taking action. The notice must also say whether the action is intended to be continuous or discontinuous. If it is to be continuous, the employer must be given the start date. If it is to be discontinuous, the employer must be told the days on which it will happen.

Temporary suspension

Generally, if the union has notified the employer that the action will be continuous, the action must continue without substantial interruption if the ballot is to remain effective. The employer and the union can, however, agree a temporary suspension of the action while negotiations take place, and can agree to extend that suspension. If the union suspends the action without agreement with the employer, it must give the employer seven days' notice that the action is to resume.

It may be that during the course of negotiations the nature of the dispute changes. If it changes to such a degree that it has effectively become a new dispute, the union must organise a fresh ballot.

Picketing

There is a specific rule that a union cannot be sued for organising a peaceful picket in contemplation or furtherance of a trade dispute. Two conditions must, however, be met.

The first condition is that the pickets must be picketing at or near their own place of work. Pickets who are union officials may picket at or near the place of work of any union member they are accompanying and represent. Some employees, such as drivers, may not have one particular place of work. Others may find it impracticable to picket at their normal place of work, perhaps because of its location, such as an offshore oilrig. These employees may lawfully picket at the premises from which their work is administered. A former employee who was dismissed in connection with the dispute or whose dismissal gave rise to the dispute may picket at his or her former place of work.

The second condition for a lawful picket is that the purpose of the picket must be to obtain or communicate information peacefully, or peacefully to persuade any person to work or not to work. A picket would therefore not be lawful if its purpose were physically to prevent the passage of people or vehicles.

There is a Code of Practice ( Industrial action links ) that gives guidance on the conduct of picketing. The content of the Code will be taken into account by the court if picketing is challenged as unlawful. The Code advises that there should normally be no more than six pickets at any workplace entrance. It also gives details of the criminal offences that can be committed during picketing, and which may lead to prosecution of the offenders under the criminal law.

Bringing a claim to court

If industrial action is unprotected because it does not meet the rules outlined above, an employer can apply to a court for an order (known as an 'injunction' or, in Scotland, an 'interdict'), requiring the union to call off the action. If the union fails to respect the order, it is in contempt of court, and may be fined or have its assets taken out of its control.

The employer can also claim compensation, or 'damages', from the union, to compensate it for the economic loss it has suffered because of the action. There is a limit on the amount of damages that a court can award, which depends on the size of the union. For unions with fewer than 5,000 members, for example, the limit is £10,000, whereas for unions with 100,000 members or more, it is £250,000.

If the action has not been authorised by a properly conducted ballot, a member of the union can also apply for a court order requiring the union to call off the action. Further, if the action is not protected, a member of the public can apply for a court order to have it called off. In order to be entitled to apply, the individual needs to be able to show that the action has disrupted, or reduced the quality of, the supply of goods or services he or she has received, or it is likely to do so.