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Collective action in the United Kingdom

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Collective action in the United Kingdom including the right to strike in UK labour law is the main support for collective bargaining. Although the right to strike (or "industrial action" traditionally) has attained the status, since 1906, of a fundamental human right, protected in domestic case law, statute, the European Convention on Human Rights and international law, the rules in statute have generated significant litigation. The "right of workers to engage in a strike or other industrial action" is expressly recognised in the Trade Union and Labour Relations (Consolidation) Act 1992 section 180,[1] and has been recognised repeatedly by the Court of Appeal as "a fundamental human right".,[2] and the House of Lords (now Supreme Court).[3]

However, UK law has become "the most restrictive on trade unions in the Western world",[4] through a series of rule changes from 1979. In order for a group of workers to take strike action, they must,

  • hold a ballot of the workforce who will go on strike;
  • inform the employer of the timing and duration of the strike;
  • not conduct the industrial action for a purpose unrelated to terms and conditions of the workers' employment contract;
  • not take industrial action against anyone but the employer of the affected workers;
  • remain peaceful when conducting picket lines.

If those rules are breached, a trade union will be liable for damages to the employer for the cost of the industrial action, an injunction may be issued against the industrial action going ahead, and workers may be fired even for a good faith trade dispute. The rules on industrial action in the UK have been subject to heavy criticism from the International Labour Organization and led to violations in the European Court of Human Rights.

History

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Strikers gathering in Tyldesley in the 1926 General Strike in the UK

The right of workers to collectively withdraw their labour has always been used to make employers stick to a collective agreement.[5] At critical moments of history, it also combatted political repression (e.g. the Peasants' Revolt of 1381, and the Indian Independence Movement up to 1947), prevented military coups against democratic governments (e.g. the general strike in Germany against the Kapp Putsch in 1920), and overthrew dictatorships (e.g. in the 2008 Egyptian general strike). Anti-democratic regimes cannot tolerate social organisation they do not control, which is why the right to strike is fundamental to every democratic society, and a recognised human right in international law.[6] Historically, the UK recognised the right to strike in statute at least since 1906.[7] and there was widespread support at common law back into the 19th century.[8]

Historically common law judges, like international law today, argued the right to stop work in a good faith trade dispute was an implied term in every employment contract.[9] On the other hand, differently composed courts have asserted that the common law position sits at odds with international law: that a strike is a breach of contract,[10] and this creates tortious liability for unions organising collective action,[11] unless it falls within an immunity from statute.[12] On this view, even though an employer is not liable for economic loss to workers who are collectively dismissed, a union could be liable to the employer for taking collective action. Economic torts have been said to include conspiracy to injure,[13] inducement of breach of contract,[14] and tortious interference with a contract.[15]

The Conspiracy and Protection of Property Act 1875, repeated in the Trade Disputes Act 1906 after the Taff Vale case created the "golden formula" that collective action by a trade union becomes immune from any liability in tort if done "in contemplation or furtherance of a trade dispute". UK tradition inspired the International Labour Organization Convention 87 (1948) articles 3 and 10,[16] the case law of the European Court of Human Rights under article 11,[17] and the EU Charter of Fundamental Rights article 28. However, the scope of the right to take collective action has been controversial. Reflecting a series of restrictions from 1979 to 1997, the law was partially codified in the Trade Union and Labour Relations (Consolidation) Act 1992 sections 219 to 246, which now falls below international standards.

Right to strike

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See also: Strike action

The Trade Union and Labour Relations (Consolidation) Act 1992 section 180 expressly recognises "the right of workers to engage in a strike or other industrial action", and section 219 contains the classic formula that collective action by a trade union becomes immune from any liability in tort if done "in contemplation or furtherance of a trade dispute". This said, various further hurdles must be jumped for a union to be certain of immunity from employers suing for damages, or an injunction to stop a strike.

The meaning of a "trade dispute" under TULRCA 1992 section 244 is confined to mean a dispute "between workers and their employer" and must mainly relate to employment terms. In BBC v Hearn[18] Lord Denning MR granted an injunction against a strike by BBC staff to stop broadcast of the 1977 FA Cup Final to apartheid South Africa. He reasoned that this was a political dispute, not a "trade dispute", unless the union was requesting "putting a clause in the contract" to not do such work. Strikes against government legislation (rather than an employer),[19] or privatisation,[20] or outsourcing before it happens,[21] have been held unlawful. However, at the least, any dispute over the terms or conditions on which workers do their jobs will allow protection.[22]

"The Subsidised Mineowner – Poor Beggar!", Trade Union Unity Magazine (1925)

Economic torts and common law

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Main article: Economic tort
Common law right?
Immunity

International law and European Convention

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Secondary action and company groups

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Tony Blair, New Labour Prime Minister from 1997 to 2007, said in 1997 that "changes that we do propose would leave British law the most restrictive on trade unions in the Western world."[24] This is still seen as accurate.[25]

The Trade Union and Labour Relations (Consolidation) Act 1992 section 224 prevents collective action against someone who is "not the employer party to the dispute".[26] "Secondary action" used to be lawful, from the Trade Union Act 1871 until 1927,[27] and again from 1946 till 1980, but today it is not.[28] This makes the definition of "employer" relevant, particularly where a trade dispute involves a company group.[29] A worker's written statement of the contract may purport to say that the only "employer" is a subsidiary, although the parent company carries out the employer's function of ultimately setting the contractual terms and conditions.[30]

Balloting

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Under TULRCA 1992 section 226 a union wishing to take collective action for a trade dispute must conduct a ballot.[31] In summary, the union must give 7 days notice to the employer about holding a ballot, state the categories of employees being balloted, give a total number, all "as accurate as is reasonably practicable in the light of the information".[32] Since the Trade Union Act 2016, there is an additional requirement that a ballot has a 50% turnout for a strike to be supported, and a total of 40% of voters supporting a strike (i.e. an 80% turnout if the vote is evenly split) in "important public services" that include health services, schools, fire, transport, nuclear and border security.[33] A scrutineer must be able to oversee the conduct, the vote must be given to all workers who could strike, the vote must be secret and by post, allowing for 'small accidental failures' which are 'unlikely to affect the result of the ballot'.[34]

The union must inform the employer of the result "as soon as reasonably practicable", call action within four weeks, and tell the employer of the people taking part.[35] The rules are poorly drafted, and this has generated litigation where some courts allowed injunctions on ostensible technical glitches.[36] However, the Court of Appeal since emphasised in British Airways Plc v Unite the Union (No 2)[37] and RMT v Serco Ltd[38] that the rules are to be interpreted consistently with the purpose of reconciling the equally legitimate, but conflicting interests of employers and unions.[39] No employee can be dismissed for taking part in a strike for a period of 12 weeks,[40] so long as the strike is officially endorsed by the union.

Picketing

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Main article: Picketing (protest)

Any picketing or protest outside a workplace must be "peaceful" and there must be a picket supervisor.[41] There are a limited number of outright prohibitions on strike action, but in accordance with ILO Convention 87 this is only for workplaces that involve the truly essential functions of the state (for armed forces, police,[42] and prison officers[43]), and only when impartial arbitration is used as an alternative.[44]

Injunctions

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If strikes are not conducted in accordance with law, employers can (and often do) go to court to seek an injunction against a union conducting the strike, or potentially damages.[45] A court should not grant any injunction against a strike unless there is a 'serious question to be tried' and it must consider where the 'balance of convenience lies'.[46] In The Nawala the House of Lords stressed that injunctions should be granted rarely and give 'full weight to all the practical realities' and the fact that a court should not end the strike in the employer's favour.[47]

See also

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Notes

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  1. ^ TULRCA 1992 s 180
  2. ^ London Underground Ltd v RMT [1996] ICR 170, per Millett LJ. Also Morgan v Fry [1968] 2 QB 710, 'It has been held for over 60 years that workmen have a right to strike...' per Lord Denning MR, referring to the Trade Disputes Act 1906
  3. ^ Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, 463, per Lord Wright, the "right of workmen to strike is an essential element in the principle of collective bargaining". Also Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25, 'I have always said that a combination of workmen, an agreement among them to cease work except for higher wages, and a strike in consequence, was lawful at common law; perhaps not enforceable inter se, but not indictable. The Legislature has now so declared.' Lord Bramwell referring to the Trade Union Act 1871
  4. ^ Tony Blair, 'We won't look back to the 1970s' (31 March 1997) The Times, 'The essential elements of the trade union legislation of the 1980s will remain. There will be no return to secondary action, flying pickets, strikes without ballots, the closed shop and all the rest. The changes that we do propose would leave British law the most restrictive on trade unions in the Western world. The scenes from Wapping, Grunwick or the miners' strike could no more happen under our proposals than under the existing laws.'
  5. ^ E McGaughey, A Casebook on Labour Law (Hart 2019 Archived 2020-11-01 at the Wayback Machine) ch 10. S Deakin and G Morris, Labour Law (2012) ch 11
  6. ^ e.g. Certification of the Constitution of the Republic of South Africa [1996] ZACC 26, [66], confirming the right to strike as more important than a right to lock-out.
  7. ^ Morgan v Fry [1968] 2 QB 710, 'It has been held for over 60 years that workmen have a right to strike...' per Lord Denning MR, referring to the Trade Disputes Act 1906
  8. ^ e.g. Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25, 'I have always said that a combination of workmen, an agreement among them to cease work except for higher wages, and a strike in consequence, was lawful at common law; perhaps not enforceable inter se, but not indictable. The Legislature has now so declared.' Lord Bramwell referring to the Trade Union Act 1871
  9. ^ In the US, see Commonwealth v. Hunt, 45 Mass. 111 (1842)
  10. ^ cf P Elias, 'The Strike and Breach of Contract: A Reassessment' in KD Ewing, CA Gearty and BA Hepple, Human Rights and Labour Law (1994) ch 11
  11. ^ See Taff Vale Rly Co v Amalgamated Society of Rly Servants [1901] UKHL 1, Quinn v Leathem [1901] UKHL 2 and South Wales Miners' Federation v Glamorgan Coal Co [1905] AC 239, reversed by the Trade Disputes Act 1906.
  12. ^ e.g. Rookes v Barnard [1964] UKHL 1 and Metrobus Ltd v Unite [2009] EWCA Civ 2009
  13. ^ e.g. R v Mawbey (1796) 6 Term Rep 619, 101 ER 736, cf Timeplan Education Group Ltd v NUT [1997] IRLR 457
  14. ^ Lumley v Gye (1853) 2 E&B 216
  15. ^ Tarleton v McGawley (1793) 1 Peake 270, 170 ER 153
  16. ^ B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441
  17. ^ RMT v UK [2014] ECHR 366
  18. ^ [1977] ICR 686
  19. ^ Express Newspapers Ltd v Keys [1980] IRLR 247
  20. ^ Mercury Communications Ltd v Scott-Garner [1984] ICR 74
  21. ^ University College London Hospitals NHS Trust v Unison [1999] ICR 204, surviving an ECHR article 11 challenge in Unison v United Kingdom [2002] IRLR 497
  22. ^ In re P (a minor) [2003] UKHL 8, [4]
  23. ^ The ECtHR's press release Archived 2008-04-15 at the Wayback Machine
  24. ^ Tony Blair, 'We won't look back to the 1970s' (31 March 1997) The Times, 'The essential elements of the trade union legislation of the 1980s will remain. There will be no return to secondary action, flying pickets, strikes without ballots, the closed shop and all the rest. The changes that we do propose would leave British law the most restrictive on trade unions in the Western world. The scenes from Wapping, Grunwick or the miners' strike could no more happen under our proposals than under the existing laws.'
  25. ^ See A Manifesto for Labour Law: towards a comprehensive revision of workers' rights (Institute of Employment Rights, 2016) 1 and 70, reviewed in (2017) 46(1) Industrial Law Journal 169.
  26. ^ TULRCA 1992 s 224(2)
  27. ^ Trade Disputes and Trade Unions Act 1927, after in National Sailors' and Firemen's Union v Reed [1926] Ch 536, Astbury J declared that secondary action was unlawful in the General Strike.
  28. ^ Trade Disputes and Trade Unions Act 1946 until, following Express Newspapers ltd v MacShane [1980] ICR 42 and the Employment Act 1980. It was then said in Department of Employment, Trade Union Immunities (1981) Cm 8128, para 149, that a total ban 'could tilt the balance of power unacceptably to the benefit of employers'. The present provisions were enacted in the Employment Act 1990
  29. ^ RMT v United Kingdom [2014] ECHR 366, rejected an express challenge to the validity of the legislation under ECHR article 11, albeit without discussion of the inequality of bargaining power that is inherent when employees exercise freedom of association, including who the employer purports to make the contract with. cf Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4
  30. ^ See further J Prassl, The Concept of the Employer (2015) and cf Duport Steel Ltd v Sirs [1980] ICR 161
  31. ^ Lord Donovan, Royal Commission on Trade Unions and Employers' Associations (1968) Cmnd 3623 rejected a need for ballots, but Department of Employment, Democracy in Trade Unions (1983) Cm 8778 led to their introduction in the Trade Union Act 1984
  32. ^ TULRCA 1992 s 226A
  33. ^ TULRCA 1992 s 226(2)(a)(iia) and (2E).
  34. ^ TULRCA 1992 s 226B-232B
  35. ^ TULRCA 1992 s 231-234A
  36. ^ Network Rail Infrastructure Ltd v NURMT [2010] EWHC 1084 (QB), EDF Energy Powerlink Ltd v NURMT [2009] EWHC 2852 QB, British Airways Plc v Unite the Union [2009] EWHC 3541
  37. ^ [2010] EWCA Civ 669
  38. ^ [2011] EWCA Civ 226
  39. ^ See RMT v Serco Ltd [2011] EWCA Civ 226, [9] per Elias LJ
  40. ^ TULRCA 1992 s 238A
  41. ^ TULRCA 1992 ss 220-220A. See also R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55, [47].
  42. ^ Police Act 1996 s 91
  43. ^ Criminal Justice and Public Order Act 1994 ss 127-8. Anomalously, the Merchant Shipping Act 1995 s 59 grants a further exception. See further POA v United Kingdom [2013] ECHR 600 and Hrvatski Liječnički sindikat v Croatia [2014] ECHR 1417
  44. ^ ILO Convention No 87, art 6. Civil Contingencies Act 2004 s 23(3)(b) requires that emergency powers cannot limit the right to strike.
  45. ^ TULRCA 1992 ss 20–21 on damages.
  46. ^ American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1, [1975] AC 396, [1975] 2 WLR 316, [1975] 1 All ER 504, [1977] FSR 593 (5 February 1975)
  47. ^ [1979] 1 WLR 1294

References

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  • S Deakin and G Morris, Labour Law (Hart 2012) ch 11
  • B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441
  • E McGaughey, A Casebook on Labour Law (Hart 2019) ch 10.
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  • The Trades Union Congress website website
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