Industrial disputes

Disputes with your workforce and/or their representatives – and any resulting industrial action – are costly and damaging to both your business and workers.

Therefore, you should seek to avoid any conflict with your workforce arising in the first place. However, if conflict does arise, you should have procedures in place for resolving the source of the conflict as soon – and as amicably – as possible.

This will reduce the financial cost of the dispute, minimise the damage done to employer-worker relations and your business’ reputation, and help maintain productivity.

This guide gives advice on how to avoid industrial disputes in the workplace. It also explains the different forms of industrial action and the legal issues that may arise if such action is threatened or actually takes place.

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Avoiding disputes with your workforce

Good relations between you and your staff are key to creating a productive working environment. You should therefore seek to encourage a workplace culture that prevents conflicts from arising.

If you fail to do so, collective grievances could arise, which could in turn lead to workers making tribunal claims or calling for industrial action.

Informing and consulting workers and their representatives

It is good practice for you to develop channels for informing and consulting your workforce and/or their representatives on employment matters and business developments. Indeed, in some cases, you are legally obliged to inform and consult them, eg during collective redundancy situations.

Depending on the size of the business, you could set up:

• regular consultations with a recognised trade union – an effective working relationship with union officials can pick up problems before they escalate
• a staff forum or joint working group to pass on information to, collect ideas from and consult with workers
• an employee consultative body to discuss major issues as they arise
• team and group meetings and feedback sessions

Many employers, especially those which recognise trade unions, have written procedures in place to discuss collective grievances with representatives and other significant issues affecting all or part of the workforce. Procedures are important as they can help you to address problems at an early stage.

If you already have such procedures, you should ensure you follow them effectively and consistently.

If you don’t have such procedures, you could consider putting some together in consultation with workers and/or their representatives.

See our guide on managing conflict.

The role of Acas in preventing disputes

Acas is an independent statutory body whose role is to improve working life through better employment relations.

Acas can not only help to resolve a dispute once it arises but also helps employers and workers (or their representatives) work together to prevent disputes arising in the first place.

Acas delivers workplace training and runs small-business workshops aimed at helping organisations adopt or develop better employment relations practices.

You can also register for an e-learning programme on informing and consulting staff on the Acas website- Opens in a new window.

The Acas Model Workplace

The Acas Model Workplace tool can help you assess the effectiveness of your communication and employee involvement practices and give you guidance on setting up and maintaining good employment relations. You can find out about the Acas Model Workplace on the Acas website- Opens in a new window.

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Dealing with industrial disputes

If a dispute arises, you should meet with representatives of your workers to resolve the problem as soon as possible. Where you have agreed procedures to meet and discuss such matters with a recognised trade union or other representatives, these procedures should be followed.

The initial concerns of the meeting should be to:

• define the actual cause of the dispute
• clarify who speaks for each side
• explore what options are available to resolve the dispute

In many cases this meeting, or negotiations that follow it, will resolve the dispute. However, if negotiations become deadlocked, it may be necessary to call in outside help, possibly from Acas.

Acas collective conciliation

Conciliation is a voluntary process where Acas conciliators attempt to help both parties discuss their differences and reach a mutually acceptable agreement – but without actually recommending or imposing a settlement.

Read about Acas collective conciliation on the Acas website- Opens in a new window.

Acas collective mediation

If conciliation fails but the parties in dispute don’t wish to move to arbitration, Acas mediators can offer recommendations to settle the dispute.

These recommendations are not binding, but both parties are expected to seriously consider them as a way to resolve the dispute.

Read about Acas collective mediation on the Acas website- Opens in a new window.

Acas collective arbitration

Arbitration is also voluntary but the parties accept in advance to be bound by the arbitrator’s resolution, made within agreed terms of reference for the arbitrator. The decision, however, is not legally binding.

The decision to go to arbitration may be ad-hoc, or may be an agreed stage in the parties’ dispute resolution procedure.

Read about Acas collective arbitration on the Acas website- Opens in a new window.

Failure to resolve a collective workplace dispute

If you fail to resolve a dispute with a group of workers and/or their representatives, they may consider taking industrial action.

However, in order for such action to be lawful, it must meet a number of conditions. For more information, see the page in this guide on lawful industrial action.

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Conducting negotiations to resolve disputes

Unless you have internal expertise, you may need external specialist negotiators to resolve some disputes.

Who should conduct the negotiations?

In most disputes, negotiating with your workers or their representatives face-to-face will be the quickest, cheapest and easiest way of sorting out the problem. Both parties to the dispute will know what the issues are and can look for solutions that fit your needs.

Where written procedures exist, they will usually specify who should undertake the negotiations at the various stages and how they should be conducted. Such procedures will be the norm where trade unions are recognised.

In larger, more complex disputes, it may be better to enlist trained people to help with the negotiations.

Trade unions can supply their full-time officers to act as negotiators for their members. Employers’ organisations and some firms of solicitors or other professional advisers can supply negotiators to employers.

It might be more cost effective to train particular staff in negotiating skills. Trade unions also provide such training to their workplace representatives.

Negotiating styles

There are two main ways to approach negotiations, and which one is used can affect how fast a dispute is resolved.

The first is the adversarial approach. Each negotiator will start by making demands, then each will try to trade-off demands against concessions at the best rate they can. All possibilities will be considered as each side will put all their demands as early as possible to get them into the bargain, but this can sometimes be acrimonious and it can lead to long negotiations as each demand is discussed in detail.

The second style employed by negotiators is the win-win approach. The two sides compare their overall objectives to find common areas of benefit that can be agreed. Often this can be achieved by looking beyond the initial demands to discover the underlying ones.

For instance, do you really want to cut your wages bill or are you actually trying to find a way to increase profitability? Do your workers really want shorter hours or are they looking for more family-friendly and flexible working patterns? The win-win approach is less confrontational but risks being seen as a compromise which may not be the best result for anyone.

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Lawful industrial action

When a worker takes industrial action, they will usually be in breach of their contract of employment or contract for services.

This means that if a trade union calls for, threatens to call for or otherwise organises industrial action, it is – in practice – calling for the breach, or interference with the performance, of employment contracts.

They may also be interfering with the ability of the employer of those taking the industrial action, and of other employers, to fulfil commercial contracts.

It is unlawful in civil law to induce – or threaten to induce – people to break a contract or to interfere with the performance of a contract. This means that a trade union would face legal action and claims for damages for calling for industrial action.

Therefore, to allow trade unions or others to call for, threaten to call for or otherwise organise industrial action lawfully, the law expressly gives them immunity from legal actions under civil law.

However, to obtain this immunity, they must meet certain statutory conditions when organising industrial action. These conditions are that:

• there needs to be a ‘trade dispute’
• an industrial action ballot must be held
• a notice of industrial action must be provided to the employer
• the action is not ‘secondary action’
• the action is not to promote closed-shop practices
• the action is not in support of an employee dismissed for taking unofficial industrial action
• the action is not to enforce trade union membership against non-union firms
• the action doesn’t involve unlawful picketing

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 their pay and conditions, jobs, allocation of work, discipline, negotiating machinery or trade union membership

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

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 the page in this guide on conducting industrial action ballots.

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.

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 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.

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:

• more favourable to those workers who are members
• 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

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 mistaken 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 is a person 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.

They will be regarded as having been dismissed while taking ‘unofficial’ industrial action if, at the time of their dismissal, their 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:

• they were a person for whose acts the union was not responsible in law
• although they were a person for whose acts the union was responsible in law, their act has been ‘effectively repudiated’ by the union’s principal 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 public holiday.

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.

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 the page in this guide on 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.

For more details, see the page in this guide on failure to gain statutory immunity – the legal consequences.

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Conducting industrial action ballots

If the employer and the union have exhausted all other available means of resolving a dispute, the union may feel that there is no alternative but to call on its members to take industrial action.

However, for the industrial action to be lawful, it must meet certain conditions. One of these is that the union calling for the action must hold a properly conducted secret ballot.

For information on the other conditions, see the page in this guide on lawful industrial action.

The law sets out certain requirements that the union must satisfy for the ballot to be legitimate. These requirements are set out below.

Independent scrutiny

For a ballot where more than 50 members have the right to vote, the union must appoint a qualified person as the scrutineer of the ballot.

The total number of members with the right to vote can be an aggregate number of members from one – or more than one – workplace.

A scrutineer must be, to the best belief of the union, independent of the union and able to carry out their duties competently.

The scrutineer’s terms of appointment must include producing a report on the conduct of the ballot. They must produce the report as soon as reasonably practicable after the date of the ballot – and not later than four weeks after that date.

The union must provide a copy of the scrutineer’s report to any union member who was entitled to vote in the ballot and any employer of such a member who requests one within six months of the date of the ballot.

The copy must be supplied as soon as reasonably practicable and free of charge – or on payment of a reasonable fee specified by the union. The scrutineer’s report must say whether or not the ballot has been conducted fairly and lawfully.

Sending employers notice of the ballot and a sample voting paper

The union must take such steps as are reasonably necessary to ensure that any employer of any union members who are entitled to vote receives certain information.

The union must send this information not later than the seventh day before the intended opening day of the ballot, ie the first day when a voting paper is sent to any person entitled to vote.

The notice must be in writing and must:

• state that the union intends to hold the ballot
• specify the date which the union reasonably believes will be the opening day of the ballot
• provide a list of the categories of employee to which the employees concerned belong, figures on the number of employees in each category, the numbers of employees at each workplace, the total number of employees concerned plus an explanation of how these figures were arrived at

Note that the lists and figures mentioned above do not need to be provided in full where the workers concerned 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 to easily work out the total number of employees concerned, the categories of employee to which they belong, the number of employees concerned in each of those categories, the workplaces at which the employees concerned work and the number of them at each of these workplaces

The ’employees concerned’ are those whom the union reasonably believes will be entitled to vote in the ballot.

Not later than the third day before the intended opening day of the ballot, the union must send the employer a sample of the voting paper (and any variants of it) which will be sent to the workers concerned.

The paper must:

• state the name of the independent scrutineer, where appropriate
• give the return address, and the date, it is to be returned by
• have a number, which is one of a series of consecutive numbers used to give a different number to each voting paper
• make it clear whether voters are being asked if they are prepared to take part in – or to continue to take part in – industrial action which consists of a strike, or industrial action short of a strike (which includes overtime bans and call-out bans)
• specify the person(s) and/or class(es) of person(s) who the union intends to have authority to make the first call for industrial action relating to the ballot, if the vote is in favour of industrial action

The paper must also contain the following statement: “If you take part in a strike or other industrial action, you may be in breach of your contract of employment. However, if you are dismissed for taking part in a strike or other industrial action which is called officially and is otherwise lawful, the dismissal will be unfair if it takes place fewer than twelve weeks after you started taking part in the action, and depending on the circumstances may be unfair if it takes place later.”

That statement must not be qualified or commented upon by anything else on the voting paper.

Timing of the ballot and related action

If members vote in favour of industrial action, the action must begin within four weeks of the date of the ballot.

However, a union may be allowed to make its first call for industrial action more than four weeks after the date of the ballot if either:

• the employer and union agree on an extension of up to a further four weeks, eg to continue with talks which are making progress
• an injunction granted by a court (or an undertaking given by the union to the court) prohibits the union from calling for industrial action during some part, or the whole, of the four weeks following the date of the ballot, and the injunction subsequently lapses or is set aside, or the union is released from its undertaking

In the latter case, a union may apply for a court order which, if granted, would provide that the period of the prohibition would not count towards the four-week period for which ballots are normally effective.

The union must apply to the court no more than eight weeks after the date of the ballot. In such cases, the ballot cannot be effective if a union’s first call for industrial action is made more than 12 weeks after the date of the ballot.

If the court believes that the result of a ballot no longer represents the views of union members, or that something has happened or is likely to happen that would result in union members voting against taking, or continuing with, action if there were a fresh ballot, it may not make such an order.

Note that a union cannot gain statutory immunity merely by holding a properly conducted secret ballot after previously calling for industrial action without one.

Entitlement to vote

All those members whom the union – at the time of the ballot – reasonably believes will be induced by the union to take part in or continue with the industrial action, must be given the equal entitlement to vote. No one else may be given a vote – otherwise the ballot will be invalid.

The union may choose whether or not to give a vote to ‘overseas members’, ie members other than merchant seamen and offshore workers who are outside Great Britain at the time of the ballot.

However, members who are in Northern Ireland throughout the voting period for an industrial action ballot and who will be called upon to take part in, or continue with, the industrial action must be given entitlement to vote in the ballot if either:

• their place of work is in Great Britain and the ballot is of members at their place of work
• the industrial action to which the ballot relates will involve members in Great Britain as well as Northern Ireland and the ballot is a general one covering workplaces in both Great Britain and Northern Ireland

Members required to be given entitlement to vote by either of these requirements do not count as ‘overseas members’ for the purposes of the law on industrial action balloting.

The ballot will also be invalid if anyone denied entitlement to vote is subsequently called on to take part in the action by the union with the exception of union members who either:

• were not members at the time of the ballot
• were members at the time of the ballot but who it was not reasonable for the union to expect to be called upon to take action, eg because they changed jobs after the ballot

Where the members of a union with different workplaces are to be balloted, a separate ballot will be necessary for each workplace unless one of the conditions set out below is met. It will be unlawful for the union to organise industrial action at any such workplace where a majority of those voting in the ballot for that workplace have not voted ‘Yes’ in response to the relevant required question(s). If a worker works at or from a single set of premises, their workplace is those premises. If not, it is the premises with which their employment has the closest connection.

In summary, the conditions for holding a single ballot for more than one workplace are that:

• at each of the workplaces covered by the single ballot there is at least one member of the union affected by the dispute
• entitlement to vote in the single ballot is given and limited to all of a union’s members who, according to the union’s reasonable belief, are employed in a particular occupation or occupations by one employer or any of a number of employers with whom the union is in dispute
• entitlement to vote in the single ballot is given and limited to all of a union’s members who are employed by a particular employer or any of a number of employers with whom the union is in dispute

It is possible for a union to hold more than one ballot on a dispute at a single workplace. If the conditions above are met, some or all of those ballots may also cover members in other workplaces.

Voting procedures

Voting must be made by the marking of a voting paper. The union should have sent the employer a sample of this at least three days before the start of the voting.

Those voting must be allowed to do so without interference from or constraint imposed by the union or any of its members, officials or workers.

So far as is reasonably practicable, every member properly entitled to vote must be:

• able to vote in secret
• given a convenient opportunity to vote by post at no direct cost to themselves
• sent a voting paper by post to their home address or any other address which they have asked the union, in writing, to treat as their postal address

There is a limited exception to these rules for the balloting of union members who are merchant seamen and the union reasonably believes that they will be employed in a ship at sea (or outside Great Britain) at some time during the voting period and that it will be convenient for them to vote while on the ship or where the ship is.

The voting paper must ask whether or not the voter is prepared to take part in – or continue to take part in – either:

• a strike
• action short of a strike, eg, an overtime or call-out ban

While the question(s) may be framed in different ways, the voter must be able to answer either ‘Yes’ or ‘No’ to indicate whether they are willing to take part in – or continue with – the industrial action.

The voting paper must specify the person(s) or description of person(s) who the union intends to have authority to call for industrial action to which the ballot relates, if the vote is in favour of industrial action.

For this purpose, anyone so specified need not be authorised under the union’s rules to call on members to take industrial action, but must be among those for whose acts the union is responsible in law.

Majority support

Majority support must be obtained in response to the question(s) on the voting paper that are appropriate to the type of industrial action concerned, ie:

• in the case of a strike, majority support must be obtained in response to a question on the voting paper which asks if members are prepared to take part in (or continue with) strike action
• in the case of action short of a strike, majority support must be obtained in response to a question on the voting paper which asks if members are prepared to take part in (or continue with) action short of a strike
• if the action consists or may consist of a strike and other industrial action, majority support must be obtained for each type of action in response to separate questions on the voting paper asking if members are prepared to take part in (or continue with) each type

Majority support means the majority of those who actually vote, not the majority of those entitled to vote.

Announcing ballot results

A union must, as soon as reasonably practicable after holding an industrial action ballot, take steps to inform all those entitled to vote, and their employer(s), of the number of:

• votes cast in the ballot
• spoiled voting papers
• individuals answering ‘No’ to the required question(s)
• individuals answering ‘Yes’ to the required question(s)

Where separate workplace ballots are required, these details must be notified separately to those entitled to vote at each workplace.

If overseas members of a trade union have been given entitlement to vote in an industrial action ballot, the detailed information about its result need not be sent to them. However, the information supplied to non-overseas members in accordance with the statutory requirements must give separate details relating to overseas and non-overseas members. For these purposes, members in Northern Ireland given entitlement to vote do not count as overseas members.

Consequences of a union’s failure to meet balloting requirements

If a union fails to satisfy the statutory requirements relating to the ballot or to give employers notice of industrial action (apart from certain small accidental failures that are unlikely to affect the result), this failure will give grounds for proceedings against a union by:

• a customer
• an employer
• a supplier of an employer
• an individual member of the public claiming that an effect or likely effect of the industrial action would be to prevent or delay the supply of goods or services to them or to reduce the quality of goods or services supplied

With the exception of failures to comply with the requirements to give notice to employers, such failures will also give grounds for action by the union’s members.

If a union fails only to provide the required notice of intent to ballot or the sample voting paper to a particular employer who should have received it, only that employer or any individual deprived of goods or services because of the industrial action can bring proceedings.

Failure to satisfy any other balloting requirements will expose the union to proceedings brought by others, eg by its own members.

Calls for industrial action from individuals unspecified on the voting paper

A ballot will not give a union statutory immunity from legal proceedings if industrial action is called by a person not specified or described on the voting paper.

Therefore, if someone calls for action other than a specified person and no call is made by a specified person, the union would be at risk of proceedings being brought against it unless it effectively repudiated the call.

Statutory code of practice on industrial action notices and ballots

There is a statutory code of practice to promote good practice in the conduct of industrial action ballots arranged by a trade union and in the preparation of notices to employers.

Failure to observe the provisions of the code does not in itself render a union, or anyone else, liable to any legal proceedings. However, where proceedings are brought against a union, the provisions of the code are admissible in evidence, and may be taken into account by a court if they appear relevant to any question before it.

Download the code of practice on industrial action ballots and notice to employers [opens in a new window].

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Legal issues during industrial action

You need to be aware of your own and your workers’ legal position during industrial action.

Picketing

When pickets try to persuade people not to go into work or not to deliver or collect goods, they may – in effect – be inducing them to break or interfere with the performance of their employment contracts.

They may also be interfering with the ability of the employers of those people to fulfil their commercial contracts.

Such inducement in the course of picketing is not itself lawful simply because the industrial action supported by the picketing is lawfully organised. For the picketing to be lawful, it must satisfy certain conditions laid down by the law.

These conditions include the following:

• that the picketing is at or near the pickets’ own place of work
• that the purpose of the picketing is to peacefully obtain or communicate information, or to peacefully persuade a person to work or not to work

However, there are three exceptions to the rule that an inducement in the course of picketing has immunity only if it is done at or near the pickets’ own place of work:

• a trade union official may accompany a member of their union whom they represent so long as the member is picketing at their own place of work
• a person – eg a mobile worker – who does not normally work at one particular place, or for whom it is impracticable to picket at their actual place of work, may picket at the premises of the employer for whom they work or from which the work is administered
• a person who is not in employment may picket at their former place of work in contemplation or furtherance of a trade dispute, but only if the termination of their employment gave rise to – or is connected with – the dispute in support of which they are picketing

Picketing that is not peaceful and, for example, leads to violent or abusive behaviour, intimidation or obstruction of the highway, is likely to involve offences under the criminal law. The law gives no protection to people who commit such offences in the course of picketing and they may be arrested and prosecuted by the police.

There is a statutory code of practice on picketing, which recommends that pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to a workplace.

Failure to observe the provisions of the code does not in itself render a union, or anyone else, liable to any legal proceedings. However, where proceedings are brought against a union, the provisions of the code are admissible in evidence, and may be taken into account by a court if they appear relevant to any question before it.

Download the code of practice on picketing [opens in a new window].

Notifying the employer before industrial action resumes

Where continuous industrial action is suspended, eg for further negotiations between the employer and union, the union must normally give the employer further notice before resuming the action.

The exception to this requirement is where the union agrees with the employer that the industrial action will cease to be authorised or endorsed with effect from a date specified in the agreement but that it may be authorised or endorsed again on or after another date specified in the agreement and the union:

• ceases to authorise or endorse the action with effect from the specified date
• subsequently reauthorises or re-endorses the action from a date on or after the originally specified date or such later date as may be agreed with the employer

For this exception to apply, the resumed industrial action must be of the same kind as covered in the original notice. This condition will not be met if, for example, the later action is taken by different or additional descriptions of workers. In order to avoid misunderstanding, both parties should put any agreement in writing.

For more on employer notification of industrial action, see the page in this guide on lawful industrial action.

Dismissal for taking industrial action

The dismissal of any striking employee during the first 12 weeks of lawfully organised official industrial action – the ‘protected period’ – will be deemed unfair if your reason for doing so is because the employee took industrial action.

The dismissal will also be unfair if the employee is dismissed after the protected period, but had stopped taking part in the industrial action before the end of the period.

If you ‘lock out’ your workforce during the protected period, the lock-out days are not counted when calculating the 12-week period.

The dismissal will also be unfair if:

• the employee is dismissed after the protected period – but had not stopped taking part in the industrial action before the end of the period
• you had failed to take reasonable steps to resolve the dispute

A dismissal can therefore be fair after the protected period if you can show that you made genuine attempts to negotiate a settlement with the trade union – including the proper use of any joint disputes resolution procedure, and have not unreasonably refused requests for third party conciliation or mediation.

Unfair dismissal claims may also be brought if you discriminate between employees by:

• dismissing some of those taking part in the action, but not others
• offering re-engagement selectively to some employees but not others within three months of the dismissal

An employee dismissed while taking part in unofficial action can’t generally claim unfair dismissal. This is regardless of whether the employer has discriminated between those taking such action by dismissing – or re-engaging – only some of them.

However, there are cases where an employee who is dismissed during the course of unofficial industrial action will still be able to make a claim for unfair dismissal if they allege that the employer dismissed them for another reason. Generally these cases relate to family reasons, health and safety, employee representation and whistleblowing.

For more information on dismissals relating to industrial action, see our guide on dismissal.

Pay during industrial action

Where workers take strike action, they are in breach of contract and usually lose their right to pay for the hours they did not work. This may depend on the terms of the employment contract and the nature of the industrial action which the worker has taken.

The situation is more complex where workers take action short of an all-out strike, eg refusing to carry out particular duties. You may refuse to accept this conduct as satisfactory. However, if you accept partial performance of duties, you can’t refuse to pay the worker for the part of the job they’ve carried out.

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Legal issues following industrial action

An employer may re-engage an employee dismissed during official industrial action on whatever terms the employer chooses, provided it offers the same terms to all dismissed workers.

During the three months following dismissal, an employer can’t selectively re-engage some employees and not others.

However, after three months, the employer can offer to re-engage any of the employees dismissed.

Any week during which an employee takes part in a strike doesn’t count towards their continuous employment. This means that a calculation of an employee’s length of employment will not include those days on which the employee was on strike. This could be important if an employee later needs to rely on their total length of employment to claim certain rights, eg statutory redundancy pay or unfair dismissal.

However, taking part in a strike won’t break an employee’s continuity of employment. This means that the terms and conditions of their employment contract won’t be discontinued during the strike and then restarted afterwards, but will effectively continue during the strike action.

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Failure to gain statutory immunity – the legal consequences

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.

For more information on statutory immunity, see the page in this guide on 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 rganisation 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 principal 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 principal executive committee, general secretary or president, the union will not be held liable.

In order to avoid liability in this way, the principal 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 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 principal 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 principal 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 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 ground of liability exists, immunity will be lost.

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