The Employment Act 1990: Still Fighting the Industrial Cold War

The Employment Act 1990: Still Fighting The Industrial Cold War

HAZEL CARTY* Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 1. BACKGROUND

Ihis is the fifth major Act on Industrial Relations since 1979.* The theme throughout the period of the present Conservative administration has been the need to curb the power of the trade unions both externally—tightening the laws on industrial action2—and internally—by restricting the effectiveness of the closed shop and enhancing the rights of members. The Employment Act 1990 continues this theme, following on from the Employment Acts 1980, 1982 and 1988 and the Trade Union Act 1984. The justification for the 1990 Act was the removal of unnecessary barriers to jobs. Thus, starting with the Employment Act 1980, there has been a staged attack on the main legal significance of the closed shop, i.e. in the area of unfair dismissal.3 The original position had been that where a closed shop, or 'union membership agreement' was in force a dismissal for the reason of non- membership was automatically fair,4 the only proviso being for non- membership on religious grounds. Both the 1980 and 1982 Employment Acts added provisos to include genuine conscientious objection; those already employed at the time the union membership agreement came into force; and those who had been unreasonably expelled or excluded from the union. The 1982 Act also made it more difficult for a union membership agreement to be

* Lecturer in Law, University of Manchester. 1 For comments on the earlier Acts see: (1980) 9 ILJ 201 (Employment Act 1980); (1982) 11 ILJ 209 (Employment Act 1982); (1984) 13 ILJ 193 (Trade Union Act 1984); Wedderburn 'Freedom of Association and Philosophies of Labour Law' (1989) 18 ILJ 1 (Employment Act 1988). All the provisions of the Employment Act 1990 were in force by February 1, 1991: SI 1990 No 2378. 2 Note also the repeal by the Employment Act 1980 of the EPA 1975 provisions relating to the statutory recognition procedure and the Schedule 11 claim to an extension of employment terms. 3 Of course, the Government were given support for this attack by the ECHR decision in Young James and Webster v UK [1981] IRLR 408, where it was held that the dismissal of three railway workers because of a closed shop was contrary to Article 11 of the ECHR (the right to free association and to join a trade union). Although capable of a narrow interpretation, and not a decision that castigated the closed shop as such, it was added ammunition for the Government. The decision was noted by Michael Howard, during the Parliamentary debate on the 1990 Act, Hansard 29 January 1990, col 41. 4 Section 58(3) of the EPCA 1978, prior to amendments. 1 Hazel Carty

'legitimate', as stringent balloting provisions were applied to the establish- ment of a closed shop or its continuance.5 The Employment Act 1988 then cut through this increasingly complex law on unfair dismissals and the closed shop by rendering all dismissals for non-membership automatically unfair:6 in effect the original position was overturned after a gradual chipping away at Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 the edifice.7 The 1988 Act also removed statutory immunity from tort liability for industrial action intended to establish or maintain any closed shop practice, building again on earlier provisions in the 1982 Act.8 More generally, industrial action law was radically changed in favour of employers and those affected commercially during a dispute. The aim was to reduce the effectiveness of sympathy action and picketing, while demanding secret ballots prior to official action. Sympathy action was the first target of the 1980 Act. A new concept 'secondary action' was defined by the notoriously tortuous and judicially criticized section 17 of the Employment Act 1980. Such action was denied protection from the civil law, though there were three possible 'gateways to legality', the most important of which being the so-called 'first customer/first supplier' gateway. This permitted secondary action to be organized if it involved employees of customers or suppliers of the trade dispute employer. Freedom to picket was restricted to those at their own place of work (with the Government's Code of Practice supplementing a recommended maximum number of 6).9 The 1982 Act then restricted the definition of 'trade dispute', thereby further reducing the scope of statutory immunity from tort liability during industrial action, and went on to compound the injury by abolishing the trade unions' immunity from suit, an immunity that originated in the Trade Disputes Act 1906. The threat of

5 Note also the enhanced compensation available under the Employment Act 1982 when an employee is dismissed for non-membership/membership of a union (and the potential for joining the union to the action). 6 In the interests of apparent 'neutrality', dismissal or discrimination on the grounds of union membership is also unfair. 7 For the law on the post entry closed shop see sections 58 and 59 of the EPCA 1978, as amended. Dismissal or selection for redundancy on the grounds of non-membership of a trade union is automatically unfair. Section 23 renders discriminatory action, short of dismissal, to compel membership or force alternative payments unlawful. Section 12 of the EA 1982 rendered 'union labour only' terms in commercial contracts void; union action to suport such a term lacks immunity, see section 14 of the EA 1982. 8 See section 10 of the EA 1988. 'The Act deprives union and employer alike of all lawful industrial pressures to enforce a union membership agreement' Wedderburn (1989) 18 ILJ 1 at 23. 9 See also Public Order Act 1986, especially section 14; see Carty: 'The Public Order Act 1986: Police Powers and the Picket line' (1987) 16 ILJ 146. To be within the relevant gateway to legality—section 17(5)—those picketing had also to be employed by the trade dispute employer. The Employment Act 1930

dismissal for taking part in industrial action was heightened by the same Act: henceforth employers could selectively re-employ those dismissed for taking part in such action, by waiting three months from the original dismissals. The Trade Union Act 1984 continued the process of limiting the lawfulness of industrial action by demanding secret ballots to be held before official Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 industrial action. The complex rules for holding such ballots were rendered even more detailed by the Employment Act 1988. However, the Trade Union Act 1984 was also important for its introduction of a new theme into the industrial relations legislation, that of 'trade union democracy'. New duties to conduct regular ballots on political activities and to elect by secret ballot all voting members of the union executive were introduced.10 This 'democratisation' of the trade unions was carried further by the Employment Act 1988. Members were given rights to restrain their union from calling industrial action without a secret ballot; to inspect the accounts; to object to 'unjustifiable' disciplining;11 to elect all principal union leaders by secret ballot; and to take action against trustees if they permitted funds to be used unlawfully. A new creature was created by the 1988 Act: the Commissioner for the Rights of Trade Union Members (CROTUM), to assist in the enforcement of these statutory rights against the union. It is against this background that the 1990 Act must be assessed. The Act reflects the proposals contained in twa Green Papers, 'Removing Barriers to Employment'12 and 'Unofficial Action and the Law'.13 It was presented by Michael Howard, the Secretary of State for Employment, as the culmination of the process of 10 years of reform. Thus the principle underlying the Act was declared to be: 'to limit the abuses of industrial power and to guarantee the democratic rights of trade union members'.14

10 The 1990 Act requires that for union elections and political fund ballots the name of the appointed scrutineer must be on the voting paper, and as far as is practicable, each member must be informed of the name of the scrutineer: sections 5(4) and (5). 11 Section 3 lays down a series of grounds on which a member may not be disciplined by the union and sections 4 and 5 lay down procedures for claims to an industrial tribunal for breach. A member may not be disciplined for failure to strike or engage in other industrial action or even for positively encouraging others not to participate. 12 Cm 655, 1989. 13 Cm 821, 1989. 14 2nd Reading, Hansard, 29 January 1990, col 41. Hazel Carty

1 PROVISIONS

A. Refusal of Employment on Union Membership Grounds: sections 1-3

The Green Paper 'Removing Barriers to Employment' cited one of the aims Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 of the Government as stripping the closed shop of its last vestiges of legal protection, by closing the remaining 'loophole'. That loophole referred to the lack of control over the pre-entry closed shop, castigated as an inefficient and restrictive practice. Of the 2.6 million closed shop members in 1989, the Green Paper maintained that 1.3 million were covered by pre-entry closed shop agreements, with concentrations in shipping, printing, manufacturing, the theatre and the London wholesale markets.15 However Lord Macarthy questioned this figure, asserting that it was doubtful that more than 150,000 workers were covered by such closed shops.16 This attack on the pre-entry closed shop provided the impetus for the provisions in the Act concerning trade union membership. The Green Paper gave rights only to non-members who were discriminated against. However, there was strong criticism from the TUC of this blatantly one-sided proposal and previously there had been criticism from the ILO's Committee of Experts of the lack of protection from discrimination against trade union members. So, in section 1, the Act provides rights in an apparently neutral fashion. Thus rights not to be discriminated against in obtaining employment are provided both for non-members and for members of trade unions.17 The provisions were equated with the other anti- discrimination laws by Michael Howard, '[union membership] restriction on employment has no more place in a civilised society than a refusal to give a job to someone on the grounds of their colour or sex'.18 The Act contains the right not to be refused employment on the ground of membership or non-membershp of a trade union.19 The term 'refusal of

15 Dunn and Gennard, The Closed Shop in British Industry (1984) identified three main types of pre-entry closed shop: craft qualification (the print industry); labour supply shops (the London wholesale markets where the union operates as employment agency); and labour pool shops (merchant shipping, employers recruiting from a recognized pool of labour, confined to members of the union). 16 Hansard HL, 10 July 1990, col 154. 17 Section 1 of the EA 1990. Note section 3(2): a membership requirement for appointment or election to an office in a trade union is not caught by section 1. 18 Hansard, 29 January 1990, col 41. 19 Agreement to contract out of the right is void. It applies to Crown employees, House of Commons staff but not to employment in respect of which a 'national security' certificate is in force, nor to employment in the police, nor to those employed outside Great Britain. The Employment Act 1990

employment' is given a wide definition in section 1(5). It includes not only a refusal to offer the job,20 but also a refusal to process the application or enquiry, pressure to withdraw an application or enquiry and the making of an offer of employment 'such as no reasonable employer who wished to fill the post would offer' (provided it is not accepted). Also included is an offer Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 subsequently withdrawn before it could be accepted. This is meant to provide against a case where an offer is made and subsequently the employer learns of the membership or non-membership. A withdrawal for that reason would be a refusal of employment. Further, it is unlawful to refuse to employ someone because he is unwilling to accept a 'requirement' related to union membership. So it is unlawful to refuse employment because the worker is unwilling to accede to a requirement to become or remain a member of a trade union (or to make a payment as a consequence of remaining outside the union)21 or a requirement to take steps to cease to be or not become a member of a trade union. 'Refusal of employment' includes refusal to accept an offer which has an unlawful requirement attached to it. Should the advertisement for the job have given the impression that it was only open to a member of a union or only open to non-members, there is a conclusive presumption that a refusal of employment to an applicant lacking that qualification, was for that unlawful reason.22 Interestingly, 'employment' in this part of the Act is defined as employment under a contract of service or apprenticeship. Self-employed people therefore are not protected against this behaviour. Membership of a trade union is defined to mean any trade union, a particular trade union or one of a number of particular trade unions. The Act also renders a refusal of services by an employment agency on grounds relating to trade union membership unlawful.23 Complaint is made to an industrial tribunal:24 Schedule 1 makes it clear that no other legal liability arises. Where the tribunal finds the complaint well-

20 Of the description which the applicant is seeking—to cover the case where a job is offered but is not the job the applicant wants. 21 By section 1 (4) an arrangement or practice under which employment is only offered to those approved by a trade union may be attacked by a non-member who is refused employment. The Opposition argued that there should be a commensurate provision to allow an attack on employers' blacklists, citing agencies such as the Economic League. 22 Section 1(3). 23 An employment agency acting on the employer's behalf will be liable, as well as the employer, for any discrimination. 24 The time limit is the same as for a complaint of unfair dismissal. There will be problems knowing when the date of the unlawful conduct should be fixed. Schedule 1 attempts to decide the matter, but there is an uncertainty attached, e.g. to the timing of a deliberate omission, viz. 'the end of the period within which it was reasonable to expect the employer to act'. Hazel Carty

founded it must make a declaration to that effect and then, as it considers just and equitable, may make an order of compensation and/or a recommendation to take remedial action within a specified period to obviate or reduce the adverse effect on the complainant. The Act states that injury to feelings is compensatable. Here the similarity is with the sex and race discrimination Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 laws. There is the same maximum compensation as for unfair dismissal.25 Should the employer be pressurized to discriminate by a trade union ('or any other person') threatening or taking industrial action, it may be joined, at the request of the complainant or respondent. Indeed, such a request must be granted if made before the hearing begins. There is an appeal on point of law to the Employment Appeal Tribunal.

B. Industrial Action Law

(1) Secondary action: section 4 The Employment Act 1980 introduced the concept of unlawful secondary action—in essence a response to the widespread use of sympathy action at the time. The provision, section 17, was complex and was castigated by Sir John Donaldson MR and Lord Diplock in Merkur Island Shipping Corp v Laughton.26 Although it was justified as an attempt to protect innocent third parties caught up in an industrial dispute, it would appear that it was in fact widely used by the trade dispute employer himself, to stifle industrial action. The Green Paper acknowledged the complexity of the law and the fact that such action is now less common. However, the justification for extending the law in this area was in part because the 1980 provisions were so complex! It was stated in debate that the existence of the gateways left scope for 'unnecessary uncertainty about whether or not any particular secondary action satisfies the gateways'.27 The need to encourage new investment was also raised, the threat of secondary action being seen as a disincentive.28

25 It is the same limit as for the compensatory award. Failing to comply with a recommendation without reasonable justification may mean that compensation is awarded or increased. 26 [1983] ICR 178 and [1983] ICR 490. 27 Lord Strathclyde, HL Committee, 10 July 1990, col 171. 28 An example given in the Parliamentary debate, Hansard, 29 January 1990, col 46, was Ford's decision not to invest in a new plant at Dundee when other unions complained of the single union deal with the Amalgamated Engineering Union and announced that all components from the new plant would be boycotted. In essence, however, this was a recognition dispute and hardly justified these draconian changes. The Employment Act 1990

The aim of section 4 of the 1990 Act is that only direct disputes between the employer and his workers should continue to attract section 13 of TULRA 1974 immunities. Now all secondary action29 is unlawful, bar that which takes place on a picket line, which is lawful within section 15 of TULRA 1974.^ This mirrors the gateway in the repealed section 17(5) of the Employment Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 Act 1980. Moreover the definition of secondary action31 is widened to include interfering with another employer's workers, not simply his employees.32 The Act then attempts to foil any extension of the notion of a trade dispute employer. Thus, it is stated that an employer is not to be treated as a party to a dispute between another employer and that employer's workers33 and that where more than one employer is in dispute, then separate disputes exist.34 Although section 4(5) states that an act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another dispute, presumably the courts will be asked to decide whether there is a legitimate primary dispute or whether one has been manufactured to give support to a dispute elsewhere.

(2) Extended concept of 'official' industrial action Trade unions were rendered liable for the economic torts they 'authorized or endorsed' by section 15 of the Employment Act 1982. The list of 'responsible persons' capable of such authorization or endorsement was contained in

29 The definition of 'secondary action' is largely the same as under the 1980 Act, except interferences with any sort of contract, not simply commercial contracts, are included in the definition. 30 As substituted by the EA 1980, i.e. attendance by employees at or near their own place of work to peacefully communicate or persuade. 31 'Primary action' is defined in the Act as interfering with contracts of employment where the employer under the contract of employment is the trade dispute employer. Note the extended definition of contract of employment to cover those employed to provide personal services. 32 i.e. any contract under which one person personally does work or performs services for another. This would overcome some of the problems in Shipping Company Uniform Inc v ITWF [1984] IRLR 71, where the breaches by pilots did not constitute secondary action as they were self-employed, not employees. There is a similar extension in the notion of employment in relation to secret ballots and industrial action, under section 10 of the TUA 1984 and section 1 of the EA 1988. Section 5 of the Employment Act 1990 also makes amendments re ballots and members in NI. They are not to be treated as overseas members if a workplace ballot takes place and the relevant members' place of work is in GB or if there is a general ballot, where the strike/ industrial action involves members both in GB and NI. 33 A confirmation of the judicial thinking in Dimbleby v NVJ [1984] ICR 386. 34 As sections 17(4) and (7) are repealed, associated employers and those who are members of an employers' association are seen as separate employers in all circumstances. This compounds the injustice of failing to lift the corporate veil in Dimbleby v NUJ [1984] ICR 386. Hazel Catty

section 15(3) and comprised the principal executive committee; the General Secretary or President; those empowered under the union rules; and employed officials and committees to which the employed officials regularly reported. However, the great majority of strikes, some 75%, have always been and still are unofficial.35 The Green Paper castigates them as costly and Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 as undermining international competitiveness.36 The changes in the 1990 Act, to widen the notion of official action (and to allow selective dismissal of those taking unofficial action, see below), however, seem to have been provoked by the spate of important unofficial action in 1989: the Docks Dispute and the British Rail and London Underground disputes. The Green Paper 'Unofficial Action and the Law' was a swift, if last-minute, reaction to these disputes: the closing date for submissions on the Paper was only three weeks before the Bill was published. Section 6 of the 1990 Act amends section 15(3) of the Employment Act 1982 by rewriting the list of those whose acts are deemed to be an authorization or endorsement by the union itself.37 The list of specified persons is widened considerably. As before, those empowered by the rule book to authorize or endorse acts are included, as are the principal executive committee, president or general secretary. However, the list now contains a third category, 'any other committee of the union or any other official (whether employed or not)'.38 Thus shop stewards could now render the union liable. Indeed, it is sufficient that such an official is a member of a group, the purpose of which includes organizing or co-ordinating industrial action, and that any member of that group has authorized or endorsed the action.39 This rather curious aspect of the provision led Lord Wedderburn to propose the following: 'under this Bill the union is at risk from the act of an unknown person, some mysterious stranger acting unilaterally after the gathering of an unknown, shadowy group to which the official, at a material time, at some point, entered and became, for a few moments, a member'.40 The importance of the union rule book is decreased, for section 15(4) is

35 Indeed, this was one of the reason for setting up the Donovan Commission: Report of the Royal Commission on Trade Unions and Employers' Associations (1968) Cmnd 3623. 36 'Unofficial action and the law' para 1.3. 37 Whereas section 15(2) used to read 'it was authorised or endorsed by a responsible person', it now reads 'it is to be taken, in accordance with the following provisions, to have been authorised or endorsed by the union'. 38 Section 15(3)(c). Any group of persons constituted in accordance with the rules of the union will be such a committee: section 153(A)(a). 39 Section 15(3A)(b). 40 Hansard HL 23 July 1990, col 1272. 8 The Employment Act 1990

repealed: if a specified person authorizes or endorses the action then the union is liable, regardless of the rules. In essence, then, the Act extends the responsibility of the trade union to nearly all industrial action involving its members. However, the union, as before, may be able to repudiate the authorization Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 or endorsement. Such repudiation only applies to the third category of persons, viz 'other committees' and officials. However, the repudiation rules are more complicated and detailed under the 1990 Act than before. To avoid liability the act must be repudiated by the principal executive committee or the president or general secretary as soon as reasonably practicable. This repudiation must be in writing and must be given to the committee or official in question 'without delay' and the union must 'do its best' to give individual written notice to every member taking part in the industrial action and to the employers concerned.41 This notice to members must contain a statement reminding members that if dismissed while taking part in unofficial action they have no right to complain of unfair dismissal. The statement must be in the following terms: 'your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial 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'.42 Should these requirements not be complied with 'the repudiation shall be treated as ineffective'.43 As before, there is no repudiation if subsequent behaviour is inconsistent with the purported repudiation. If repudiated, the action will not be treated as unofficial before the end of the next working day.44 The Act then expressly notes that the power to grant an injunction includes the power to require no further inducement in the action and to take steps to withdraw any inducement made before the granting of the injunction.45 Moreover, it is expressly stated that the statutory rules on trade union liability will apply in contempt proceedings arising from breach of injunctions.46

41 Confirmation of repudiation must be given on request to a party to a commercial contract whose performance has been or might be interfered with, and who has so requested within three months of the repudiation. 42 Section 15(5A). 43 Section 15(5B). 44 This ties in, obviously, with the new section 62A of the EPCA 1978. 45 This echoes the injunction powers in section 1 of the Employment Act 1988. 46 Section 15(9). It was held that the old section 15 rules did not apply to such contempt proceedings in Express and Star v NGA [1986] IRLR 222, CA. Hazel Carty

(3) Removal of unfair dismissal rights in unofficial action: section 9 The second part of the two-pronged attack on unofficial action is an amendment to section 62 of the EPCA 1978. The general rule remains that an employer must not discriminate in dismissing those who take part in industrial Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 action. An 'all or nothing' response precludes industrial tribunal jurisdiction on unfair dismissal claims.47 However, section 9 of the Employment Act 1990 adds section 62A, to deal with those dismissed while taking part in unofficial action. Those who participate in unofficial industrial action can be selectively dismissed, being denied the right to claim unfair dismissal before an industrial tribunal. This denial of the right to complain applies to those who at the time of dismissal were taking part in an unofficial strike or other unofficial industrial action. The action will be unofficial—and this will be determined by reference to the facts at the time of the dismissal—unless the dismissed employee is a member of a trade union which has authorized or endorsed the action.48 Where the dismissed employee is a non-member, the action is regarded as official if some of those taking part were members of a trade union by which action has been authorized or endorsed.49 Moreover, the action is not to be regarded as unofficial if none of those taking part are members of a trade union. Furthermore, the statutory immunities available for organizing industrial action are withdrawn if one of the reasons for the action is the fact or belief50 that the employer has dismissed those taking part in unofficial action.

(4) Industrial Action Balloting:51 sections 5; 7 and 8 In an amendment to section 11 of the Trade Union Act 1984, a trade union

47 Of course the EA 1982 did add the three month proviso to this scheme. 48 Determined by reference to the substituted section 15(3-7) Employment Act 1982. 49 An employee who was a member of a trade union when he began to take part in industrial action will continue to be so treated even though he subsequently leaves during the dispute. Membership of a trade union for purposes unconnected to the employment in question shall be disregarded. 50 Section 9(2). The Green Paper had required 'pressure' on the employer in support of those dismissed. 51 Note that, where appropriate, the changes made by the 1990 Act have been carried through into the Regulations governing funds for trade union ballots: SI 1990 No 2379. Note also that Sir John Donaldson MR in Post Office v UCW [1990] ICR 258, raised the possibility that union members who joined after the ballot should not be brought into the industrial action. The Opposition urged the Government to clarify the law during the passage of the Bill, but the Government declined so to do, indicating that they thought the Master of the Rolls was wrong. 10 Tlie Employment Act 1930

must now specify on the voting paper for industrial action the identity of the person/s authorized to call upon the members to take part (or continue to take part) in industrial action, should the vote be affirmative. Though the persons so specified need not be authorized under the rules of the union, they must be specified in the new section 15(3). Industrial action will only be Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 regarded as having the support of the ballot if it is actually called by a specified person.52 The section further states that no call by the union to take part in action to which the ballot relates must have taken place before the date of the ballot. This is in addition to the requirement that there must not be any authorization or endorsement by the union of the industrial action before the ballot. As with the other technical requirements of section 11, should the ballot not comply with this requirement, the trade union loses its TULRA 1974 immunities and aggrieved members can complain under section 1 of the Employment Act 1988. Moreover, the provisions relating to industrial action ballots now relate to industrial action taken by all workers providing personal service, not simply those employed on a contract of employment. They must all be balloted.53 There is also a change in the rules on the period within which the action must be called, once an affirmative ballot has been held. The normal rule remains that the action must be called within four weeks, beginning with the date of the ballot. However, during the Parliamentary debates it was pointed out that if a union was prevented from first calling for industrial action during the four week period because of an injunction or court proceedings it would have to re-ballot its members in order to have protection. The need to hold such a re-ballot would apply even if the injunction were eventually lifted. This is indeed what happened to the TGWU during the 1989 Docks Dispute. Under the 1990 Act the union may apply for an extension of time to allow for the period during which they were prohibited from calling the action. Such an application has to be made 'forthwith upon the prohibition ceasing to have effect' and no application can be made after the end of eight weeks beginning with the date of the ballot.54 The court cannot make an extension order if it believes that the result of the ballot no longer represents the views of the union members concerned or if it appears 'that an event is likely to occur as a result of which those members would vote against industrial action if another

52 After the date of the ballot and takes place within four weeks of the ballot, though as the text reveals there are now limited provisos to this four week period. 53 Section 5. 54 However, the provision goes on to state that even applying these new rules, no more than 12 weeks can elapse from the date of the original ballot, in order for that ballot still to be effective. 11 HazdCarty

ballot were to be held'. This provision runs the risk of drawing the courts into the very heart and merits of a dispute and it is predictable that controversial decisions will result. A court now has the power to overturn a ballot on the basis of hypothetical argument. Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021

C. Crotum*

Established by the Employment Act 1988, CROTUM has made little impact as yet. Presumably to increase the chance that a greater impact will be made in the future, CROTUM's power to assist has been extended by section 10 of the 1990 Act. She will no longer be limited to assisting members enforcing their statutory rights and the unions' statutory duties.56 Now the Com- missioner may assist in proceedings arising from alleged breaches of the union rule book relating to the following matters: appointment to any office; disciplinary proceedings by the union (including expulsion); authorization or endorsement of industrial action; balloting members; the application of the union's funds or property; the imposition or collection of a levy for industrial action purposes; and the constitution or proceedings of any committee, conference or other body. Such assistance cannot be given unless the Commissioner believes that the breach in question may affect other members of the union or similar breaches have affected or may affect other members. In an effort to increase public awareness of the Commissioner, if an assisted person so wishes, the Commissioner's name must appear in the title of assisted proceedings to give that person 'more assurance that the Com- missioner stood behind him in the proceedings'.57 CROTUM will not, however, be a party to the proceedings.

ANALYSIS

The Employment Act 1990 was represented throughout by the Government as a logical extension of the industrial relations laws post 1979. However the extensions to those laws in this Act indicate that the very basis of trade union power—the ability to take effective industrial action—is rejected by the

53 In her first annual report, Ms Gill Rowlands sought the increase in powers now granted in the Employment Act 1990. 56 For these matters see section 20 of the Employment Act 1988. 57 Section 11. Green Paper, 'Removing Barriers to Employment', para 4.8. 12 The Emptoyment Act 1990

Government. It is rejected on ideological grounds, no real justification being given for the provisions in either the Green Papers or in the Parliamentary debates. As Lord Wedderburn commented during the debate: 'the Govern- ment ... do not believe that trade union organisation in the labour market as an effective force is desirable'.58 Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 Thus the extension of the concept of 'official action' ignores the legitimacy of the union rule book and the structure of the unions. Why should unions be liable for what is in reality unofficial action? The Government justified the change on the basis that the unions may secretly be encouraging unofficial action, the case of Express and Star v NGA59 being cited in evidence in the Green Paper. Michael Howard stated60 that the new law: 'means that it will no longer be possible for unions to ignore strikes or use them in order to damage employers without risk to union funds—where they are not confident that the majority of their members would support official action in a secret ballot'. However, this ignores the fact that in Express and Star v NGA the union was held liable (for contempt) for 'going through the pantomine of putting down on paper resolutions which complied with the law and, at the same time, [through its officials] encouraging their members to take unlawful action'.61 There was thus no need to change the law if this was the real concern of the Government. The main criticism of this provision must be the heavy and unrealistic burden it places on unions. Unofficial disputes that involve shop stewards are to be deemed official. Yet the vast majority of unofficial disputes arise suddenly and are short lived. The TUC commented, in its response to 'Unofficial Action and the Law', that in most cases the dispute would be over before there would be any question of the union issuing a repudiation. Despite this, the Act requires the union to go through the trouble and expense of the 'repudiation' process in order to avoid civil liability. Moreover, all members involved in the action must be informed in writing. The Institute of Personnel Managers noted that: 'to draw up a list of names and make the necessary arrangements for the distribution of the repudiation notices would introduce a degree of bureaucracy which could delay the resolution of the dispute'.62 This repudiation process—with its mandatory

58 Hansard HL, 10 July 1990, col 181. 59 [1986] IRLR 222. 60 Hansard, 29 January 1990, col 47. 61 Lawton LJ [1986] IRLR 222 at 225. 62 The Trade Union Act 1984 does require a trade union to keep an up to date register of the names and addresses of its members. 13 Hazel Carty

statement— may well serve to distance members from their union and reduce the effectiveness of unions in resolving disputes. This will have an adverse effect on industrial relations: as such the new provisions are likely to be condemned by union official and manager alike.

On the other hand, should a union decide to support the action, e.g. of a Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 shop steward, a bizarre sequence of events will have to follow. To comply with the provisions of the Act, it would appear that the union would have to first repudiate the action and then presumably ballot its members. If 'deemed official' action is not repudiated, the subsequent ballot will fall foul of the requirement in the Act that the first relevant call to industrial action should take place after the date of the ballot. The first relevant union action will then be the unrepudiated 'deemed official' action by the shop steward. However, the Act does provide that an act 'shall not be taken to have been authorised or endorsed' if repudiation occurs subsequently.63 Such a sequence of events highlights the nonsense of the provisions. Secondary action is now open to the full rigour of the civil law, apart from such action that takes place on the picket line. This reduction of trade union freedom64 is at odds with the observations of the ILO's Committee of Experts, who have noted that sympathy action65 ought to be permissible, to comply with Convention 87 on Freedom of Association and Protection of the Right to Organise. Indeed, this provision is at odds with the original view of the present Government. On the Second Reading of the Employment Act 1980, Lord Prior noted that, as the Government were seeking a balanced and reasonable reduction of immunities, 'simple repeal of the immunities for all secondary action would not be right . . . just as it is not reasonable to leave trade unions with more power than they need ... so it would be unreasonable to weaken them to the extent that they are unable to defend their members against attack'.66 Yet ten years later this feeble attempt at balance has been jettisoned. It would appear that we are now severely out of step with Europe on this matter. Sympathy action is allowed in other EC states, though with limits: usually a requirement of a 'sufficient community of interest'.67 This point was urged upon the Government by Lord Wedderburn who noted:

63 New section 15(4) of the Employment Act 1982. 64 Though in reality the gateways rarely helped defendants. 65 Or action taken from mixed motives. 66 Hansard, 17 April 1980, col 1498. 67 There is a useful summary by the Opposition spokesman, Tony Blair in Hansard, 29 January 1990, col 55 and by Lord Wedderburn, Hansard HL, 10 July 1990, col 172. 14 The Employment Act 1990

the right to withdraw labour cannot be limited in any democracy by boundaries drawn according to the employment unit because it is the employer who defines the employment unit. Therefore, the right to strike is put entirely into the hands of the employer. That fact is understood in all the major systems. Every legal system puts some limit on sympathetic or solidarity industrial action, but no other European Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 code of labour bans it altogether'.68 The only attempt at justification for departing from the earlier Government view on secondary action and for this potential breach of ILO Convention 87 was that 'the Government see no reason why employers who are not a party to a dispute should be at risk of having industrial action against them'.69 This lack of appreciation of the real world of industrial relations and disputes characterized the Government's approach throughout the course of the Bill. At the very least, if lawful industrial action is to be limited to 'primary' action, the Act should have directed the courts to lift the corporate veil and discover the actual, rather than the legal, trade dispute employer.70 Dimbleby v NUJ1X shows that the courts may not be willing to do this without statutory sanctioning. Lord Diplock noted that: 'the corporate veil ... is drawn by statute and it can be pierced by some other statute if such other statute so provides; but in view of its raison d'etre and its consistent recognition by the courts . . . one would expect that any parliamentary intention to pierce the corporate veil would be expressed in clear and unequivocal language'.72 The scope for manoeuvring behind the fiction of corporate status is obvious. A scenario was suggested in the Parliamentary debate. Should Ford split each plant into a separate company and split each part of each plant into a separate company, 'secondary' action by workers in one company to assist workers in another company would be unlawful, even though the group interest is clearly inseparable.73

68 Hansard HL, 10 July 1990, col 172. He went on to provide useful examples from the major European legal systems. 69 'Removing Barriers to Employement' 3.10. 70 The now repealed section 17(4) of the Employment Act 1980 permitted secondary action against an associated employer, should production have been switched there by the trade dispute employer and section 17(7) stated that employers were to be regarded as a party to any trade dispute to which the employers' associaiton is a party, if the employer is represented in the dispute by the association. 71 [1984] ICR 386. 72 [1984] ICR 386 at 409-410. 73 Alex Carlile, Hansard, 29 January 190, col 69. The example of Rupert Murdoch's reorganization of his newspaper business was commented upon during the Parliamentary debates. He divided his companies into at least six or seven subsidiary companies to deal with distribution and supplies separately, thereby reducing the possibility of lawful industrial action. 15 Hazel Carty

Only secondary action as part of the activities of a lawful picket line remains lawful. Obviously without this proviso lawful picketing would be near impossible: only employees of the trade dispute employer could be approached, communicated with or persuaded. Of course, what constitutes a lawful picket line is a matter for debate and this debate will more often than Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 not take place in interlocutory proceedings. Numbers may well continue to be a key issue, certain judges professing a liking for the Code of Practice number of six.74 Again, deciding where peaceful persuasion ends and 'intimidation' begins has caused problems of definition. The problems of knowing what is lawful therefore, remain. Nowhere is the hostility to the notion of any lawful industrial action more apparent, however, than in the provisions on industrial action balloting. As has already been noted, if a ballot does not comply with the technical statutory requirements of section 11 of the Trade Union Act 1984, then it does not count as a ballot under the 1984 Act, section 13 of the TULRA 1974 immunities are lost and aggrieved members may complain under section 1 of the Employment Act 1988. What the Government has done is to increase the technical pitfalls relating to this procedure, guaranteeing that the status of a given ballot (whether it is valid or not) will be a matter for debate and litigation. Just as the 1988 Act added the requirement on separate ballots for each place of work,75 the 1990 Act continues to tighten the screw. The voting paper must now nominate the 'specified person/s' who will call the industrial action, should the vote be affirmative. If there is a call to take industrial action by any official who is not specified on the voting paper, then all immunities are lost. This provision does not emanate from the Green Paper, nor was it mentioned in the House of Commons' Committee stage of the Bill. The Government justified it by reference to a dispute at Ford in 1989 where, following an affirmative ballot, the union did not recommend that action should be taken, but shop stewards did recommend action and claimed the protection of the ballot. Therefore the main purpose of this provision was stated to be not to allow a union leadership 'to stand aside if there is a premature call to take action by wholly unauthorised officials following a ballot'. Should such unauthorized action take place, the trade union concerned will have to repudiate the action, to avoid liability.

74 See e.g. Scott J in Thomas v NUM [1985] IRLR 136. 73 Unless those balloted are united by a common factor. 16 The Employment Act 1990

The Government see this as the union being forced to accept its responsibility. However, it appears more like another attempt to make the union liable for unofficial action. Again the scope for legal wrangling is obvious. On the ballot paper the union will have to produce a long list of specified persons, presumably including the president, every member of the Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 executive committee and perhaps even every shop steward. In doing so, of course, they lay themselves open to liability arising from the actions of shop stewards who refuse to comply with the recommendations of the union and decide to call action. Conversely, the shorter the list of specified persons, the more scope for allegations that an unspecified person has called the action— perhaps by an unwise television interview. If there is an affirmative ballot and an 'unspecified' person calls for action presumably the union must repudiate the 'unspecified' call and then call for action via a 'specified person'! At the same time it is not clear what is meant by the word 'call'. Presumably it is to be interpreted as something less than an authorization. The Government did insist that there was a difference between a call and a recommendation to vote yes. Though that may be true in cold theory, in practice a court may, at least for interlocutory proceedings, interpret an urging of the membership to vote yes as a call. The result would seem to subvert the operation of strike ballots. Lurking in the background, to cause even more problems for trade unions, is the Government's Code of Practice on industrial action ballots. Admit- tedly, it is a watered down version of the controversial and, in constitutional terms, highly objectionable original draft. However, the code is still worrying. The interpretation of what is 'reasonably practicable' in relation to entitlement to vote and securing a secret ballot may influence courts and tribunals. On the other hand the code fails to clarify the complex provisions on balloting constituencies inserted into section 11 by the Employment Act 1988. The philosophy behind the new section 62A of the EPCA 1978 appears to be that unofficial action is always meritless and those taking part are 'troublemakers'.76 The fact that the action may have been provoked by the employer to rid himself of trade unionists or to avoid redundancy payments would be irrelevant. Indeed the Green Paper exampled a walk out by colleagues of an employee who had been physically attacked by a manager. Such employees could now be selectively dismissed without recourse to an

76 Though troublemakers who take action within a non-unionized workplace still merit the limited protection of the 'no discrimination' requirement in section 62 of the EPCA 1978. 17 industrial tribunal. Again, it must be remembered that 'industrial action' is a very wide concept: a breach of contract is not necessary, rather concerted action is the central requirement.77 A major concern must be the fact that employers may use this provision to dismiss those who complain over health and safety issues. Refusing to undertake tasks because of safety implications, Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 especially if combined with pressure to remedy the defects, may well be interpreted by tribunals—given the issue is one of fact and degree—as 'industrial action'. The Government refused to see this as a problem, this time relying on the common sense of the tribunals and rejected proposed amendments to expressly preclude action taken by workers because of health and safety fears as unnecessary encumbrances on the Act. Yet such action has already at least on one occasion been labelled 'industrial action' by the Employment Appeal Tribunal.78 The provision is unjust and unnecessary—castigated by Baroness Turner as 'the nastiest clause in a nasty little Bill'79—and likely to be condemned by the ILO, especially as that organization is already critical of section 62. The Government's replies to criticism of the section was that in practice dismissal of those taking industrial action will be rare; employers would continue to be guided by common sense! It was on this basis that an amendment seeking to modify the section by making it necessary for the employer to give some kind of notice or warning before dismissing an employee taking industrial action was rejected. Moreover, the provision must be read in light of the changes to what is 'official action'. Should 'deemed official' action take place, involving shop stewards, then the union must decide whether to protect its own position by repudiating the action. In so doing it would expose its members to selective dismissal for taking part in unofficial action. This only serves to alienate the union from its members. (And it must be remembered that the union is denied immunity for what would otherwise be lawful industrial action, should

77 Faust v Power Packing Cascmakers Ltd [1983] IRLR 117. The Government (per Timothy Eggar) 'are absolutely confident that no court or tribunal has found, or would find, that simple refusal to do unsafe work amounts to taking industrial action1. Hansard, 17 May 1990, col 1056. If only we could all be so confident! 78 Wilkins v CantreU [1978] IRLR 483, mentioned by Lord Wedderburn, Hansard HL, 12 July 1990, col 508. Here drivers complained that they were told to drive lorries that were overloaded under the provisions of the Road Traffic Act 1930—if correct both a crime and an unlawful contractual order. Lord Wedderburn then questioned whether we might be in breach of our Community obligations under Community Directive 391 of 1989, the Health and Safety Directive. 79 Hansard HL, 12 July 1990, col 484. 18 The Employment Act 1990

it call for action, because of such dismissals.) If the union fails to repudiate, the provisions of section 62A of the EPCA 1978 do not apply.80 However, the union would then be liable for the economic torts committed. Therefore, no doubt, a union deciding to support what in lay terms started out as unofficial action will be advised to hold a ballot, to gain TULRA 1974 immunities. But Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 the 1990 Act, as we have already seen, states that prior to such a ballot no call to take or continue the action must be made by the union or those who can render the union liable under section 15(3). Therefore, the union must repudiate the action and then call a ballot (to test for support for such action!). A strange hiatus will occur, between repudiation and the holding of the ballot, though the reason for the original action may remain in place. During this hiatus, should any shop steward call on the workers to resume or continue the action, the union will again have to repudiate the call or be liable. This again highlights the unreasonable and unworkable mechanics of the Act. The Government argued that the 1990 Act gave employers in this country the same freedom to respond to unofficial action as employers in Germany. However, it was pointed out in debate that to transpose aspects of another legal system is likely to be unrealistic: the German legal framework encourages the taking of official action. Here both official and unofficial action is increasingly difficult to take. The most objectionable aspects of the Act relate to the provisions dealing with industrial action. Other remarks concerning the Act are, however, worth making. For the purposes of secondary action and industrial action ballots the notion of employment is extended to all those rendering personal services. This inspires the question that, if employees and the bulk of self-employed are to be equated for certain fundamental purposes, why are they not equated for the basic employment rights contained in the EPCA 1978? The provisions on union membership discrimination will provide interesting litigation by union members denied jobs and are a welcome addition to workers' rights. However the fact that membership of the union is (in theory) protected, rather than the wider notion of taking part in the activities of an independent trade union (to correspond to section 58(l)(b) of the EPCA 1978), means that the protection is still inadequate.81 As Baroness Turner stated:82 'belonging is

80 Though section 62 of the EPCA 1978 will apply, of course. 81 Section 12 of the Act also gives the Secretary of State powers to amend or revoke codes of practice by a simplified procedure. 82 Hansard HL, 10 July 1990, col 130. 19 Hazel Carty

simply a passive state ... to be effective [union] democracy needs active participation'. The Government rejected this extension as too uncertain, though similar protection is already provided in sections 23 and 58 of the EPCA 1978! Overall, the Act lacks justification. At the heart of the provisions is the Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 attempt to prevent effective trade union pressure. Even those who seek to keep within the rules for taking lawful industrial action will find it difficult to apply those rules. It is hard not to agree with Tony Blair, the Opposition spokesman, that it is a leftover from the old agenda of the industrial cold war. No doubt the severe reduction in the ablity to take industrial action will fuel the debate over the need for guaranteed rights to take industrial action.83 The Employment Act 1990 leaves industrial action immunities in tatters.

See Lord Wedderburn, Hansard HL, 12 July 1990, col. 471.