Industrial disputes

Statutory conditions for immunity when organising industrial action


A union or individual must meet certain statutory conditions when organising industrial action.

1. The need for there to be a trade dispute

A person or trade union who calls for, threatens to call for or otherwise organises industrial action, has immunity from civil action for inducing a breach of contract or interfering with a contract's performance only if acting in contemplation or furtherance of a 'trade dispute'.

For there to be a trade dispute:

  • there must be a dispute between workers and their own employer
  • the dispute must be wholly or mainly about specified employment-related matters such as:

    (a)  terms and conditions of employment, or the physical conditions in which any workers are required to work
    (b)  engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers
    (c)  allocation of work or the duties of employment as between workers or groups of workers
    (d)  matters of discipline
    (e)  the membership or non-membership of a trade union on the part of a worker
    (f)  facilities for officials of trade unions
    (g) machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures

The relevant definition does not cover disputes:

  • between workers and an employer other than their own employer
  • not wholly or mainly about specified employment-related matters like pay and conditions
  • between groups of workers or between trade unions, ie where no employer is involved in the dispute
  • between a trade union and an employer, where none of that employer's workforce is in dispute with that employer
  • relating to matters occurring overseas - except where workers taking action in the UK in support of the dispute are likely to be affected by its outcome

2. The need to hold an industrial action ballot

If a trade union decides to call on its members to take - or continue to take - industrial action, it will have no immunity unless it first holds a properly conducted secret ballot.

See conducting industrial action ballots.

3. The need to provide a notice of official industrial action to the employer

The union organising the industrial action must ensure that the employer receives a written notice from the union which:

  • Reaches the employer after the union has taken steps to notify the employer of the result of the industrial action ballot, but no less than seven days before the day - or the first of the days - specified in the notice.
  • Specifies whether the union intends the industrial action to be 'continuous' or 'discontinuous'. The notice must also give the date on which any of the affected employees will be called on to begin the action (if continuous) or the dates on which any of them will be called on to take part (if discontinuous). Industrial action is 'discontinuous' if it involves industrial action other than on all the days when it might be taken by those concerned. An indefinite strike would, therefore, be continuous. However, an overtime ban might be continuous or discontinuous, depending on whether the ban applied to overtime working on all the days on which overtime would otherwise be worked or to overtime working on only some of those days.
  • Provides a list of the categories and workplaces of the employees who are going to take part in the industrial action (the 'affected employees'), figures on the numbers of affected employees in each category, figures on the numbers of affected employees at each workplace and the total numbers of affected employees. The union must also explain how it worked out the figures it provides.
  • Is given by any officer, official or committee of the union which is inducing - and is therefore responsible for - the industrial action.

Note that the lists and figures mentioned above do not need to be provided in full where all of the affected workers pay their union subscriptions by deduction from pay at source, ie through the so-called 'check off' system.

In such circumstances, the notice must contain either:

  • those same lists, figures and explanations as set out above
  • information that will allow the employer readily to work out the total number of workers concerned, the categories of worker to which they belong, the number of workers concerned in each of those categories, the workplaces at which the workers concerned work and the number of them at each of these workplaces

Where only some of the affected workers pay their union subscriptions by the check-off, the union's notice may include both types of information, ie the lists, figures and explanations should be provided for those who do not pay their subscriptions through the check-off, while information relating to check-off payments may suffice for those who do.

The lists and figures or information supplied should be as accurate as is reasonably practicable in the light of the information in the union's possession at the time when it complied with this requirement of the law.

4. The action is not 'secondary action'

It is unlawful for a union or others to call for, threaten to call for, or otherwise organise secondary industrial action.

Secondary action - which is sometimes referred to as 'sympathy' or 'solidarity' action - means industrial action by workers whose employer is not a party to the trade dispute to which the action relates.

For these purposes:

  • where more than one employer is in dispute with its workers, the dispute between each employer and its workers is treated as a separate dispute
  • industrial action which is 'primary' action - ie in contemplation or furtherance of a trade dispute between workers and their own employer - is not regarded as 'secondary' action simply because it has some effect on another dispute between workers and a different employer
  • the calls on workers to breach, or interfere with the performance of contracts will not be regarded as calls to take secondary action if made in the course of attendance for the purpose of peaceful picketing as the law allows

Note that secondary action can be taken not only by those working under contracts of employment - eg employees - but also by someone working under any contract where they personally do work or perform services for another, eg an agency worker or freelancer. Therefore, such workers can also be at risk of taking unlawful secondary action.

5. The action is not to promote closed-shop practices or against non-union firms

It is unlawful for a union or others to call for, threaten to call for, or otherwise organise industrial action to establish or maintain any sort of union closed-shop practice.

This means that statutory immunity is therefore not available where the reason, or one of the reasons, for the industrial action is either:

  • that an employer employs, has employed or might employ a person who is not a member of a trade union
  • to pressurise an employer into discriminating against a person on the grounds of non-membership of a trade union

'Trade union' here can mean any trade union, a particular trade union or one of a number of particular trade unions.

An employer is discriminating against a person who is not a union member if its conduct in relation to its workers is:

  1. more favourable to those workers who are members
  2. different for union members and non-members

In addition, there is no immunity for a relevant act - such as calling for, threatening to call for, or otherwise organising industrial action - which is either:

  • designed to exert pressure on an employer to persuade it to impose union-labour-only or recognition requirements on contractors
  • taken by the workers of one employer and interferes with the supply (whether or not under a contract) of goods or services by a second employer where the reason, or one of the reasons, for the action is that the supplier of the goods or services does not recognise, negotiate or consult with trade unions or trade union officials

6. The action is not in support of an employee dismissed for taking part in unofficial industrial action

A union or other person has no immunity if they call for, threaten to call for, or organise industrial action where both:

  • the reason, or one of the reasons, for that action is the fact or belief that an employer has dismissed any employee
  • the employee has no right to complain of unfair dismissal because they were dismissed while taking part in 'unofficial' industrial action

For these purposes, an 'employer' in relation to an employee includes, in the case where the employment has ceased, the employer they used to work for.

An 'employee' for these purposes who was a member of a union (other than for purposes unconnected with their employment) when they began to take the industrial action and/or at the time they were dismissed will be regarded as having been dismissed while taking 'unofficial' industrial action if, at the time of their dismissal, the act of calling for, threatening to call for or otherwise organising the industrial action, was not the act of the union.

This was because either:

  • it was done by a person for whose acts the union was not responsible in law
  • although done by a person for whose acts the union was responsible in law, their act has been 'effectively repudiated' by the union's executive committee, president or general secretary

However, where the relevant act has been so 'repudiated', the employee is not regarded as taking 'unofficial' industrial action until a full working day has passed since the day the repudiation took place.

A 'working day' for these purposes means any day other than a Saturday, Sunday, Christmas Day, Good Friday or a bank holiday as defined under the [1971 c. 80.] Banking and Financial Dealings Act 1971.

An employee who was not a union member when they began to take the industrial action in the course of which they were dismissed, and/or when they were actually dismissed, will not be regarded as having been dismissed while taking 'unofficial' action unless, at the time of dismissal, there were others also taking the action who were members of a union that had not authorised or endorsed the action.

7. The action doesn't involve unlawful picketing

For picketing to be lawful and therefore maintain the statutory immunity of those organising the industrial action, certain conditions must be met.

See legal issues during industrial action.

Failure to gain statutory immunity

Where a union or individual fails to meet any or all of the conditions set out above, any resulting industrial action will not be covered by the statutory immunity.

As a result, employers and others who are damaged - or likely to be damaged - by the action may take civil proceedings in the courts against the union/individual.

See the legal consequences of failing to gain statutory immunity.

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