Industrial disputes

The legal consequences of failing to gain statutory immunity

Guide

Where statutory immunity for organising industrial action has not been met, eg because a union or individual has failed to organise a proper secret ballot, employers and others (such as their customers and suppliers) who are damaged - or likely to be damaged - by the action may take civil proceedings in the courts against the union or individual.

See lawful industrial action.

However, the person wishing to bring civil proceedings must still show that:

  • an unlawful, unprotected act has been done or is threatened
  • they are party to a contract which will be - or has been - broken or interfered with by the unlawful act
  • they are likely to suffer - or have suffered - loss as a result

In addition, an individual deprived of goods or services because of the unlawful organisation of industrial action can also bring proceedings to stop this happening.

However, for this purpose, the individual does not need to show that they are party to a contract, which will be - or has been - broken or interfered with by the unlawful act.

Who can be sued as a result of unlawful industrial action?

Civil proceedings will normally be taken against the trade union or individual organising the industrial action.

However, in the case of picketing, it may be possible to sue the individual pickets as well as those who organised the unlawful picketing. This is because the pickets are inducing interference with the performance of contracts.

Note that even if it's a union that is responsible for organising unlawful industrial action, this does not prevent legal proceedings from being brought against the individual organisers.

Trade union liability for inducing breach of contract

The law states the circumstances in which a trade union is to be held responsible for a relevant act, eg inducing - or threatening to induce - a breach or interference with the performance of a contract.

Where these circumstances apply, a union will be held responsible for a relevant act regardless of any term or condition to the contrary in its own rules, or in any other contractual provision or rule of law.

A union will be liable for any relevant act, which is done, authorised or endorsed by:

  • its executive committee
  • its general secretary or president
  • any person given power under the union's own rules to do so
  • any other committee of the union or any official of the union

For these purposes:

  • A 'committee of the union' is any group of persons constituted in accordance with the rules of the union.
  • A relevant act will be taken to have been done, authorised or endorsed by an official if it was done, authorised or endorsed by a group of persons, or any member of a group, to which an official belonged at the relevant time if the group's purposes include organising or co-ordinating industrial action.
  • An 'official' is any person who is an officer of the union or a branch or section of the union or any person who is elected or appointed in accordance with the union's rules to be a representative of its members. This includes any person elected or appointed who is an employee of the same employer as the members, or one or more of the members, they are elected to represent, eg a shop steward.

However, if a relevant act which is done (or authorised or endorsed) by such a committee or official is 'effectively repudiated' by the union's executive committee, general secretary or president, the union will not be held liable.

In order to avoid liability in this way, the executive committee, president or general secretary of the union must repudiate the act as soon as reasonably practicable after it has come to the knowledge of any of them, and the union must, without delay:

  • give written notice of the repudiation to the committee or official in question
  • do its best to give individual written notice of the fact and date of the repudiation to every member of the union who it has reason to believe is taking part - or might otherwise take part - in industrial action as a result of the act and give similar written notice to the employer of every such member

The written notice of repudiation given to the union's members must contain the following statement:

"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."

However, even if it takes these steps, a union will not be considered to have 'effectively repudiated' an act if:

  • the executive committee, president or general secretary subsequently behaves in a way which is inconsistent with the repudiation
  • at any time up to three months after the repudiation, a party to a commercial contract which has been, or may be, interfered with by the relevant act, requests the union's executive committee, president or general secretary to confirm that the act has been repudiated, and written confirmation is not then given

Remedies

Where statutory immunity does not apply, those party to contracts which are broken, or the performance of which is interfered with, by the organisation of - or a threat to organise - industrial action, may seek an injunction against the organisers from the courts.

A court may, after examining the circumstances, grant an injunction on an interim basis pending a full hearing of the case. However, the union or individual against whom the order is sought will have the legal right to be given a chance to put their case forward.

If an injunction is not obeyed, those who sought it can go back to court and ask to have those concerned declared in contempt of court.

Anyone found to be in contempt of court may face heavy fines or other penalties which the court may consider appropriate. For example, a union may be deprived of its assets through sequestration. This is where the funds are placed in the control of a person appointed by the court who may, in particular, pay any fines or legal costs arising from the court proceedings.

It is also possible to claim damages for losses suffered - which may, but need not, be preceded by an application for an injunction - if the basis of the proceedings is a claim that an act involved breach, or interference with the performance of contracts.

Note that there are upper limits on the amounts a court can award by way of damages in any proceedings against a trade union. These limits depend on the size of the union concerned.

Limits on awards for damages against a union organising unlawful industrial action

Number of trade union members Upper limit on award for damages
Fewer than 5,000 £10,000
5,000 - 24,999 £50,000
25,000 - 99,999 £125,000
100,000 or more £250,000

Other unlawful acts during industrial action

Those who have organised lawful industrial action are only protected from legal action for a relevant act, eg inducing breaches, or interference with the performance of contracts.

As such, there is no immunity for strikers or their organisers who commit other civil wrongs or criminal offences.

For example:

  • if strikers or their organisers commit a criminal offence, such as intentional damage to property, they are liable to be arrested and prosecuted by the police in the same way as anyone else who commits such an offence
  • if strikers or their organisers commit an unlawful trespass, eg by entering premises without authority or by staging a 'sit-in', they are liable to be sued for that and any other unlawful acts involved just like any other members of the public who occupy premises unlawfully

Also note that the union has immunity only if the sole ground of liability is a relevant act - such as inducing breach of contract. If some other non-protected ground of liability exists, immunity will be lost.

  • LRA Workplace Information Service
    03300 555 300
Developed with:
  • Department for the Economy
  • LRA