inbrief Industrial action Inside What is industrial action? Is it lawful or unlawful? When is it protected? When can it be challenged? What can be done in practice? Contingency planning On the horizon inbrief Introduction What is industrial action? (which is not an employment contract with an employer who is not party to Economically turbulent times have seen an Industrial action is not defined in statute but, as the trade dispute), or interferes or increase in trade unions ‘flexing their a general guide, it amounts to concerted action induces another to interfere with its taken to put pressure on an employer. It performance or muscles’ by way of industrial action. This includes strikes and actions short of a strike Inbrief outlines the law in this area and gives such as picketing, work-to-rule, go-slow and a > consists in threatening that a contract employers practical tips for responding to ban on call-out. (which is not an employment contract with an employer who is not party to and avoiding conflicts. Whether actual or threatened, industrial action the trade dispute) will be broken, its can be disruptive and costly. Employers, performance interfered with, or to however, are not powerless. There are many induce another to break the contract or ways either to challenge industrial action or to interfere with its performance minimise its impact. > if it amounts to an agreement, the Is it lawful or unlawful? agreement is to do or bring about When threatened with industrial action, an something which itself would not be employer can reap rewards by seeking to actionable in tort establish whether or not it is lawful. > if the action is picketing, it takes place at or Nearly all industrial action is potentially unlawful near the picket’s place of work (or, in the as it usually involves employees breaching their case of a union official only, at or near the employment contracts. The breach could be of place of work of an accompanying union an express term (e.g. employees on strike would member whom the official represents) and breach an express term which required a 9-5 is for the purpose only of peacefully working day), or a less obvious “implied” term obtaining/communicating information or (e.g. refusing to work overtime could breach an persuading others to work or abstain from implied term not to operate contract terms to working frustrate an employer's business). Unions, by calling for industrial action, will in turn be acting > the reason for the action is not the unlawfully by inducing employees to breach employment of (or failure to discriminate their contracts. against) a non-union member or a dismissal connected with unofficial action However, both unions and the employees who participate in industrial action can gain extensive > it is not for the purposes of requiring that protection against liability if they can show that work is done by union members (or non- the action has been called in compliance with a members) only, or that suppliers recognise, complex statutory balloting and notification negotiate or consult with a union, or regime. For the employer, identifying refusing to deal with suppliers/prospective shortcomings can provide useful bargaining suppliers on union membership grounds chips in union negotiations, and even a basis on which to stop the action in Court. The union’s acts will only be protected if, in addition, it has correctly balloted for the When is it protected? industrial action, and given proper notice to relevant employers, following statutory Industrial action is protected if the union has procedures. endorsed/authorised the action (and has not effectively repudiated it), and: When can it be challenged? > it is in contemplation or furtherance of a Industrial action can be challenged if it fails to narrowly defined trade dispute meet the above conditions. > the only reason why it is unlawful is because Shortcomings in balloting and notification the action is a tort (i.e. a legal wrong) that: procedures have historically provided the most fruitful source of legal challenges to industrial > induces another to break a contract action. Although recent judicial decisions have inbrief become more “union friendly” – suggesting such as media campaigns, supply-chain targeted > Lock-out: for example, if the complete that Courts will only grant an injunction to stop action, think-tanks, letter-writing and closure of a certain factory or office is a strike on the basis of shortcomings in the demonstrations, and it is often in this context required for health and safety reasons. A constituency balloted by the union if they are that torts may be committed. key risk is that non-participating employees satisfied that the union has acted in bad faith – may claim this amounts to a breach of the What can be done in practice... if the it still remains beneficial to scrutinise the employer’s obligations. legislation and assess whether the union has action is protected? complied. A non-exhaustive list of potential What can be done in practice... if the > Withhold pay: where employees have defects includes: action is not protected? breached their contract, employers can > Balloting members in circumstances where withhold pay. The amount withheld should > Injunctions: the most immediate course of the union knows those individuals cannot be a reasonable reflection of the work lost / action is usually an “interlocutory possibly be induced to strike (e.g. because damages caused. Employers should give injunction” (a temporary order that the union has information in its possession advance notice of why and how deductions industrial action should stop / must not take showing that they will have left are being made. Unless a contractual place), pending a full hearing at which the employment before the first date of any provision holds otherwise (and dependent court will decide whether or not it is lawful. strike action). on the employee’s normal working week Cases very rarely reach a full hearing, which and how they are paid), an employer will means the initial hearing is likely to serve as > Conversely, excluding from the ballot usually be able to deduct 1/260 of a full the effective final determination of the members who will be included in the strike time worker’s annual salary for every strike matter. call. day. Watch out for employees who obtain sick notes or are absent for other reasons > Damages: where industrial action is > Failing to provide sufficiently detailed or who could claim unlawful deductions from unlawful, as well as from employees, specific information to the employer about wages. employers may claim damages from the the employees who are to be balloted and union, limited to a statutory maximum induced to strike. > Refuse to accept partial performance: if (currently £250,000, depending on the employees fail to fully perform their number of union members). > Failing to notify the employer and those contract, employers can adopt an ‘all or balloted of the result as soon as reasonably nothing’ approach by refusing to accept > Dismissal: where industrial action is practicable after it is communicated (and partial performance. The key is to make it “unofficial” (i.e. employees are members of failing to provide certain categories of clear to workers that if they attend work, a union which has not endorsed/authorised information about the result). they are expected to complete all their the action, or has repudiated it), employees Moreover, industrial action is rarely standalone duties, and any partial performance of work have no right to claim unfair dismissal and may lead to illegal behaviour which leads to is on a voluntary basis, for which no unless the principal reason for the dismissal the loss of protected status. Picketing is a payment will be made. Implied acceptance was related to certain protected matters common example of action which can easily of partial performance, e.g. managers such as jury service, family, health and lead to trespass, harassment or assault. A giving out instructions, should be avoided. safety, working time, employee breach of contract can itself be a criminal representative, protected disclosure and/or > Dismissal: dismissal should be a last resort offence if done wilfully and maliciously knowing flexible working cases. If the industrial given the risks of tribunal claims and that serious injury, or danger to human life are action is official, but not protected, then damage to industrial relations. Where the probable consequences. dismissals which take place during a lock- action is protected, dismissal will be unfair if out or industrial action and do not relate to Encouraging others to participate can amount the reason is the industrial action, and the time off for dependants or the above to criminal behaviour where it involves dismissal takes places during a period of 12 protected matters, can only be found to be persistently following someone, or hiding weeks from the date the employee started unfair if the employee is re-engaged within someone’s tools, clothes or other property. participation in the industrial action (or three months, and/or the employer has not longer if a lock-out has taken place (see Various other unprotected torts may be dismissed all relevant workers. below) or the employee stopped action committed in connection with industrial action, before the 12 week period ended). If the > Withhold pay / refuse partial ranging from inducing breaches of statutory employee continues the industrial action for performance / lock-out: as is the case for duty, to defamation, to breaches of the 12 week period, the employer must protected action, if there is a breach of fundamental EU rights of the employer, and it take certain procedural steps to resolve the contract, employers can deduct pay, refuse can pay to be aware of these.