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Industrial Action Notes

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? 1. Categorisation of Industrial ActionHepple and Kahn Freund: "Why is the strike or better perhaps the potentiality of a strike, that is of an event which of necessity entails a waste of resources, and damage to the economy nevertheless by general consent an indispensable element of a democratic society?"Key question: where should industrial action be located within labour jurisprudence? It may be categorised as a fundamental human right, that is, from an individualist perspective. Alternatively it may be a corollary to collective bargaining as the counterbalance in the power balance.Ewing and Hendy: Argue if industrial action is not seen as a corollary to collective bargaining, then collective bargaining is nothing more than a right to collective begging.Marc Moore: Argues that industrial action is a "structural imperative" to legitimise and sustain the reciprocal power imbalance central to the employment relation.Deakin: Outlines four main perspectives when looking at trade unions: (i) the individual rights approach; (ii) democratic approach; (iii) equilibrium approach (i.e. the idea that unions provide an effective counter-balance to re-address the one-sidedness of the employeremployee relationship); (iv) the autonomous sanctions approach (i.e. the idea that unions are a deliberate pooling of power which deliberately and purposefully sanctions an employer to enforce compliance with desired norms).2. LIABILITY IN TORTHazel Carty The economic torts in the 21st century [2008] LQR 641 at 666: "the one certainty about the future development of the economic torts is that it is uncertain"
? 1. What are the likely torts that may be committed via industrial action?Identification of the torts committed is necessary in order to determine whether immunity is available. The economic torts are uncertain but can be categorised as follows:
? (1) Torts based upon interference with the claimant's pre-existing rights
? (2) Torts based on the use of unlawful means
? (3) Torts of conspiracy.Individuals also have an independent statutory right to seek an injunction to halt a strike. This does not rely on establishing common law tortious liability.(a) Torts based upon interference with the claimant's pre-existing rights
? This can be broken down further into:
? Inducing breach of contract;
? Other inducements to breach obligations.Inducing Breach of Contract
? An employer will almost always breach their employment contract by undertaking industrial action.
? A union acts tortiously where they induce the employee to breach their contract with their employer:
? Lumley v Gye (1853) 2 E&B 216: D induced Ms Wagner to sing in his theatre, for a higher fee, when he knew that she was contracted to singe in C's theatre for 3 months. Held: D was liable for inducing Ms W to breach her contract with C
? South Wales Miners' Federation v Glamorgan Coal Co Ltd [1905] AC 239: Workers agreed not to work on certain days in order to create a supply shortage of coal and maintain a higher price. Held: The union was liable for inducing the workers to breach their contract. It was no defence that the employer had been on board, nor that their action was OPEC-like and not designed to injure the employer.
? An injunction cannot be granted against an employee because such an injunction would compel them to do work (s236 TULRCA 1992). Therefore this tort is particularly useful in industrial action because it enables the employer to seek an injunction against the union.
? The liability of the union is parasitic to the liability of the contracting party and therefore depends upon the contracting party (here, the employee) having committed an actionable wrong i.e. breach of contract:
? OBG Ltd v Allan [2008] 1 AC 1: HL Held: The defendant must have an intention to procure a breach of contract. However there is no requirement for them to intend to cause the claimant harm. Further, actual knowledge of the breach is required. Nevertheless it is unlawful for a third party to procure a breach of contract knowingly, or recklessly, indifferent to whether it is a breach or not: turning a blind eye is no excuse. This is a subjective not an objective test.
? "Inducement" will usually consist of a direct approach. It must be directed at one of the parties to the contract:
? Middlebrook Mushrooms Ltd v TGWU [1993] IRLR 232: Mushroom growers and the Union could not agree on overtime rates. A dispute followed. The Union got its members to leaflet against buying mushrooms at supermarkets. Injunction sought. Held: Because the action was directed at the customers and not the parties involved, this was not a direct interference and was therefore not inducement.
? There is a defence of justification for this tort but it is construed extremely narrowly and has rarely succeeded in industrial action. Where the defence is not made out, the union will have to rely on the statutory immunities.Inducing Breach of Other Obligations
? The tort of inducing breach of other obligations is even more contentious. This can concern equitable obligations and statutory duties.
? These torts do not fall within the scope of the statutory immunities (s219 TULRCA 1992)
? The tort of inducing a breach of statutory duty is of particular relevance in the public sector:
? Meade v Haringey London Borough Council [1979] ICR 494: Caretakers went on strike so that schools could not open. Parents brought a claim for breach of statutory duty and asked for an interim injunction. CA: Did not address the point conclusively as the dispute had been resolved. Noted that if there had been a breach of statutory duty this would have fallen outside of the statutory immunities. However, the duty must be actionable in civil law i.e. imposed for the benefit of a particular class of persons to which the claimant belongs.
? The tort has been used in the EU context during the BALPA and British Airways dispute.
? BA v BALPA: BA wanted to move parts of its operations to Paris. BALPA protested. BA argued strike action would amount to a breach of their right to freedom of establishment and that the union was therefore inducing interference with a horizontally applicable treaty right. BA threatened the union with legal action for tortious breach, and sought to circumvent the cap on damages under TULRCA by relying on EU law. BALPA sought a declaration as to the lawfulness of the strike but later withdrew their application.(b) Torts based on the use of unlawful meansThese torts essentially require that the defendant intentionally causes loss to the claimant by wrongfully interfering with some activity of a third party in which the claimant has an economic interest. i.e. A union uses unlawful means to interfere with the activity of employees with the intention of causing loss to an employer.Prior to OBG, the dividing line between lawful and unlawful means was simply between "doing what you have a legal right to do and doing what you have no legal right to do":


Rookes v Barnard [1964] AC 1129: R was dismissed for being a non-unionist because the union threatened to strike if he was kept on i.e. enforcing the closed shop. At the time the dismissal was lawful and R could not sue his employer. Held: He could sue the union, it was a tort of intimidation: the Union had threatened strike action, constituting unlawful means. Lord Reid
? Consequently the tort had very wide coverage and threats of unlawful action constituted unlawful means as well as intimidation. The torts of nuisance and trespass were also included.The speeches of the House of Lords in OBG were not wholly clear as to the precise ambit of the tort. In particular they did not explicitly overrule Rookes v Barnard.
? OBG Ltd v Allan and related appeals [2007] UKHL 21:
? Lord Hoffmann (speaking for the majority), argued that the concept is restricted.He said 'unlawful means' is narrower than simply acts that count as actionable civil wrongs: they must be actionable civil wrongs "intended to cause loss to the claimant by interfering with the freedom of a third party in a way which is unlawful as against that third party and which is intended to cause loss to the claimant". He went further, saying: "It does not in my opinion include acts which may be unlawful against the third party, but which do not affect his freedom to deal with the claimant" i.e. it is not as simple as a causal connection: the use of the third party must be instrumental to the loss.This limited definition is slightly wider than it appears, because it is subject to "the qualification that they will also be unlawful means if the only reason why they are not actionable is because the third party has suffered no loss ". Normally the starting point is that they must be actionable civil wrongs by the third party. However, sometimes have situations where the loss is not suffered by the third party, but is suffered by the claimant. This does not matter, can take the loss out of the equation.
? Lord Nicholls, giving the minority view, however said that "unlawful means" is much broader:"There is some controversy about the scope of this expression in this context... One view is that this concept comprises, quite simply, all acts which a person is not permitted to do... [It] stretches far and wide. It covers common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence and so on".Described Lord Hoffman's conception as odd: "it would be surprising if criminal conduct were excluded from the category of "unlawful" means in this context. ... It would be very odd if in such a case the law were to afford the claimant a remedy where the defendant committed or threatened to commit a tort or breach of contract against the third party but not if he committed or threatened to commit a crime against him. In seeking to distinguish between acceptable and unacceptable conduct it would be passing strange that a breach of contract should be proscribed but not a crime."A possible method of reconciling the position is that there are two torts which fall under the "umbrella tort" of causing loss by unlawful means:
? (1) The tort of intimidation where threats constitute unlawful means and do not need to be independently actionable by themselves;
? (2) The tort of causing loss by unlawful means where independently actionable loss or damage is required.In relation to intimidation, three party intimidation is reasonably clear: Rookes v Barnard. However, difficulty arises in two party intimidation i.e. where one contractual party intimidates another contractual party, causing loss to that other party. Relying on tortious liability in this entirely contractual context risks circumventing the contract agreed between the parties. The question of whether there is such a tort was expressly left open by Lord Hoffmann in OBG.An alternative way of obtaining redress may be via the doctrine of economic duress:
? Universe Tankships Inc of Monrovia v ITWF [1983] 1 AC 366: Victim can show they were put under illegitimate pressure and had no practical alternative other than to accede to their demands.In relation to causing loss by unlawful means, as noted above, this includes the indirect form of inducing breach of contract. The main practical application of this tort is in secondary action which is itself expressly excluded from immunity (Union induces breach at Firm B, in order to cause harm to Firm A).Clearly there must be an intention to cause loss. However even after OBG, the precise intention that is required is still unclear.
? OBG Ltd v Allan and related appeals [2007] UKHL 21:
? Lord Hoffmann: "One intends to cause loss even though it is the means by which one achieved the end of enriching oneself. On the other hand, one is not liable for loss which is neither a desired end nor a means of attaining it but merely a foreseeable consequence of one's actions".
? Lord Nicholls stated that the necessary intention would be present where "the defendant's gain and the claimant's loss are, to the defendant's knowledge, inseparably linked". (c) Torts of conspiracyTwo forms of this tort: (1) Lawful means conspiracy; (2) Unlawful means conspiracy.However lawful means conspiracy has little application to industrial action following:
? Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435: House of Lords accepted the legitimacy of trade union interests. Officials of the Transport and General Workers' Union and a group of employers with whom the union operated a "closed shop" agreed to "black" the supplies of C and other employers on the island of Harris who were outside the closed shop agreement - The union had members both in the mills and in the docks at Stornoway, the island's main port. HL Held: C's claim in conspiracy was rejected on the ground that the predominant purpose of the defendants was to protect their own economic interests not to injure C - It was emphasised that the court would not make its own assessment of whether the action was, in objective terms, likely to achieve the combiners' goals. Lord Wright: "The true contrast is... between the case where the object is the legitimate benefit of the combiners and the case where the object is deliberate damage without any such just cause. The courts have repudiated the idea that it is for them to determine whether the object of the combiners is reasonably calculated to achieve their benefit."In unlawful means, there is no requirement for the act in question to be independently actionable in order for it to constitute unlawful means:
? Total Network v HMRC [2008] UKHL 19: The House of Lords placed a different emphasis on the requirement of intention when compared to OBG. The majority in Total Network required the damage to be "intentionally inflicted", "directed" at the claimant with an intention to harm them. (d) Statutory right of individuals
? Section 235A TULRCA:
? (1) Where an individual claims that---(a) any trade union or other person has done, or is likely to do, an unlawful act to induce any person to take part, or to continue to take part, in industrial action, and(b) an effect, or a likely effect, of the industrial action is or will be to---(i) prevent or delay the supply of goods or services, or(ii) reduce the quality of goods or services supplied,
? to the individual making the claim,
? he may apply to the High Court or the Court of Session for an order under this section.An act is unlawful within the section where it is actionable in tort by any person or where the action falls within s62 TULRCA i.e. where a union member would be able to bring a claim that they are being induced to participate in industrial action that is not supported by a valid ballot (s235A(2)).


An order may be made (s235A(4)) requiring the person committing the inducement to take steps to ensure that:
? (a) ... no, or no further, act is done by him to induce any persons to take part or to continue to take part in the industrial action, and
? (b) that no person engages in conduct after the making of the order by virtue of having been induced by him before the making of the order to take part or continue to take part in the industrial action. no act is done to induce persons to take part in industrial action.

2. Is the union liable in tort?Section 20 TULRCA: Governs the liability of the trade union. It provides that the union is liable if the relevant act is "to be taken to have been authorised or endorsed by the trade union".(a) Authorisation and endorsement may be by any number of union officials within three categories of person:(1) Any person empowered by the trade union rules to do, authorise or endorse such acts. 'Rules' is defined to mean both written rules of the union and any other written provision forming the contract of membership.(2) Regardless of union rules, there is liability for the "principal executive committee", president, or general secretary of the Union.(3) Regardless of the rules, there is liability for any other "committee" of the union or any other official, whether employed by Union or not.(b) The scope of liability is therefore very broad, mere membership of a group may be sufficient:Moreover, the legislation attributes to an official any act done, authorised or endorsed by any 'group' (ad hoc or otherwise) of which he or she was at the material time a member whose purposes included organising or coordinating industrial action or an act by any member of such group.This means that the official need not personally have been involved in taking the decision to take industrial action - it is sufficient that he or she was a member of the group at the 'material time' - and, indeed, he or she may conceivably have participated in the activity of the 'group' in order to discourage this decision.(c) The union can only avoid liability in relation to such actions by repudiating "as soon as reasonably practicable"This is a question of fact and in practice may not be possible due to fast moving, local level action. Repudiation involves an "open disavowal and disowning of the actions of the officials concerned" and must be in a particular form, including notifying members that the union is repudiating the strike call.Repudiation may be rendered ineffective is subsequent acts by the executive, president or general secretary appear to be inconsistent with the repudiation.Note, striking without a ballot is prohibited under section 20 and a strike which is repudiated renders the strike unofficial, thus conferring no protections for their members.(d) For torts outside s20, such as nuisance and trespass then the common law principles of vicarious liability apply.Fixing liability to the union does not absolve individuals from personal liability, but proceedings are likely to be brought against the union where this is possible, although individuals may be joined as co-defendants.The relevant principles of vicarious liability dictate that the union is liable for the acts of individuals acting with its express or implied authorisation, regardless of whether they are its employees:
? Heatons Transport (St Helens) Ltd v TGWU [1972] ICR 308: Concept of authorisation was interpreted broadly. Defendant union had a policy that the loading and unloading of containers carried at sea should be reserved for dock workers registered under the statutory National Dock Labour Scheme then in operation and that lorries of firms refusing to honour this policy should be "blacked". Shop stewards at Liverpool and Hull established unofficial committees at their own initiative to direct the blacking although such committees were not provided for in the union rule book. The union argued that it could not be liable for the shop stewards' acts. HL Held: The stewards had general implied authority and discretion to act on the union's behalf in protecting members' wages and working conditions in the circumstances in question and they were promoting general union policy. The court emphasised that in determining the scope of the authority of an official to bind the union regard must be had both to the written rule book and to custom and practice, which could have the effect of modifying the union's rules as they operated in practice or compensating for them in absence of formal rules. To avoid liability in this situation the union would have needed to withdraw the authority of the stewards to continue organising industrial action "in terms which would be reasonably understood by them as forbidding them to continue", possibly by withdrawing their credentials, and, if necessary, taking disciplinary action.

3. Tort within s219?Once the relevant torts have been identified, it must be ascertained whether they fall within:
? Section 219 TULRCA (1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only---
? (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or
? (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.Where they do not fall within the provision, then there will be no statutory immunity. Unions are therefore vulnerable to new economic torts being created.
? Hadmor Productions Ltd v Hamilton [1982] IRLR 102: HL Held: An act which was not actionable in itself by virtue of the legislation may not constitute the requisite "unlawful" means for torts such as causing loss by unlawful means or unlawful means conspiracy.(a) "trade dispute"
? Section 244 TULRCA (1) In this Part a "trade dispute" means a dispute between workers and their employer which relates wholly or mainly to one or more of the following -
? (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 between workers or groups of workers;
? (d) matters of discipline;
? (e) a worker's membership or non-membership of a trade union;
? (f) facilities for officials of trade unions; and
? (g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures.
??????? Between Workers And Their Employer:
? Note, the Act extends to workers not just employees.
? It includes former workers if their employment was terminated in connection with the dispute or was a circumstance giving rise to the dispute: Associated British Ports v TGWU [1989] IRLR 291:
? It only includes the workers' employer:
? The court will not lift the corporate veil to consider where the true power is:Dimbleby and Sons Ltd v NUJ [1984] IRLR 161:
? Nor will it include disputes with an employer to whom the workers may transfer at some future date:

?UCL NHS Trust v UNISON [1999] IRLR 31:Unison v UK [2002] IRLR 497:
? The European Committee of Social Rights (ECSR) has declared that UK is in breach of its obligations under the ESC. They have particularly highlighted that a union is prevented from taking industrial action against a de facto employer, if he is not the immediate employer; and as in UCLH against a prospective employer.Must Relate Wholly or Mainly to One of the Categories Set Out
? These are the same as in the definition of collective bargaining in s178 TULRCA.
? In relation to terms and conditions of employment, this is given a broad meaning:
? P v NAS/UWT [2003] IRLR 307: Term of teachers' contract that they should comply with the Head's reasonable instructions. He gave instructed that a particularly naughty pupil should be taught in normal classes, and the teachers refused. It was argued that this wasn't a trade dispute because it wasn't a dispute about terms and conditions. It was alleged that the dispute concerned the application of term. Held: Parliament couldn't have intended the legislation to turn upon such niceties. Lord Hoffman: "A dispute about what the workers are obliged to do, or how the employer is obliged to remunerate them, is, at any level of particularity, about terms and condition."
? The fact that not all of those taking part in the action are personally affected by the subject-matter of the dispute does not take the dispute outside of the immunities:
? British Telecommunications plc v CMU [2004] IRLR 58: "...the representative functions of trade unions would be set at nought if it were the case that employees could not take industrial action in relation to an attempt to change terms and conditions of employment of only some of them."
? However it does not include future employment conditions:
? UCL NHS Trust v UNISON [1999] IRLR 31: Trust entered negotiations with a consortium under a PFI (Private Finance Initiative). That consortium was going to build and run a new hospital. The result would be that the staff employed by the Trust would transfer into the consortium. The Union considered this to be akin to privatisation and opposed it. In addition they sought to persuade the Trust to enter an agreement with the consortium that they observe for 30 years equivalent terms to the Trust. They wanted this agreement not just for transferred employees but also new employees to the consortium as well. The Trust refused and the Union balloted for industrial action. Action was overwhelming supported. The Trust sought an interim injunction which was granted by the HC. CA Held: Upheld the HC decision. The dispute was not between existing employees and their current employer. It was about terms and conditions which would apply after their employment with the current employer had ceased and they had started work with a new employer, the consortium. They rejected the argument that this was a political strike rather than industrial action. A Union can have a wider policy behind their dispute that seeks a political objective and at the same time have a more limited policy that seeks to ameliorate the consequences of the particular dispute. This more limited objective did fall within s.244. The interference with HR was justified at ECtHR as the strike would interfere with rights of others (public). However the court noted that the union could still take action if the UCL did anything, or they could take action against the consortium at a later date.When determining whether the dispute relates "wholly or mainly" to one of the categories, the court must consider the predominant purpose of the dispute. Political disputes/disputes with a political dimension are not protected:
? Mercury Communicaions Ltd v Scott Garner and the POEU [1983] IRLR 494: Union opposed to privatisation of BT. Told its members to refuse to connect its Mercury lines into the BT's network. The union tried to argue that what they were concerned about job security and future redundancies. However there was a job security agreement in place which the union had not sought to enforce or discuss. CA Held: The predominant purpose of the action was political. The workers and union were against the government's policy of liberalisation and privatisation of the telecommunications industry.
? Deakin: Points out that this does not mean that all industrial action relating to the consequences of privatisation will be unlawful. However unions need to be careful to ensure that action is linked sufficiently closely with one of the matters in the statute that characterise a trade dispute.
? Associated British Ports v TGWU [1989] IRLR 291: National Dock Labour Scheme required employers and workers to be registered to be able to do dock work. As well as the registration provisions of the scheme, there was a provision for nationally determining most terms and conditions of dock workers. The government announced its intention to remove the scheme by legislation. Unsurprisingly the unions were opposed and sought to persuade the National Association of Employers to employ national conditions which were no less favourable to the Dock Labour Scheme. The Employers said no, in preference of local negotiations. The Union called the dock workers out on strike and the Employers sought injunctions, claiming it was a political strike about the government's attempts to remove the scheme. HC Held: It was a trade dispute. The scheme directly affected the T&Cs of the workers and that's what the Union was genuinely concerned about. Millet J: The schemes repeal would be the consequence of a political process, but would have an immediate, direct, and serious impact on their terms and conditions of employment, unless the employers were willing to agree comparable terms. The link between the legislation abolishing the scheme and dockers' terms and conditions of employment was inextricable, and given that the employers had made clear their intention to deprive dockers of valued features of their employment relationship which the scheme had bestowed, there was a genuine dispute between them.The line between political and industrial disputes is not always clear. Often the decision will turn on how the industrial action has been framed on the ballot paper:
? Wandsworth London Borough Council v NAS/UWT [1993] IRLR 344: Union instructed its members to boycott all unreasonable and unnecessary elements of assessment connected with the national curriculum. The action was balloted. CA Held: Despite the political phrasing, this was a trade dispute. The court placed "considerable importance" on the wording of the question put to members in the ballot which preceded the industrial action, which asked them whether they were willing to take action "to protest against the excessive workload and unreasonable imposition made upon teaches, as a consequence of national curriculum assessment and testing". The dispute therefore related to terms and conditions of the workers, and the alleged unnecessary and burdensome workload imposed.
? Lord Mayor and Citizens of Westminster City Council v UNISON [2001] IRLR 524: Dispute about the proposal to transfer an undertaking from the City Council to a private employer. The employer maintained that a dispute over the compulsory transfer of staff to the employment of a private company was in reality a dispute about public policy. CA Held: The dispute concerning the identity of the union members' employer related to their terms and conditions of employment. The framing on the ballot paper was about terms and conditions of employment and thus this was to be properly regarded as a trade dispute.
? Note that a Union has a role in framing the industrial action in order to take what may look like a very political issue and frame it in the language of an industrial dispute. (b) "In contemplation or furtherance" (Purpose and timing)Purpose
? Question of purpose is subjective. i.e. what was the defendant trying to do? Did he honestly and genuinely believe that his side would gain some advantage in the dispute by virtue of the act in question? His motive (or ulterior purpose) of why he was trying to do it is not directly relevant:
? NWL Ltd v Nelson and Laughton [1979] IRLR 478:Timing
? Expectation v Support

Conway v Wade [1909] AC 506: Lord Loreburn: "either a dispute is imminent and the act is done in expectation of and with a view to it, or ... the dispute is already existing and the act is done in support of one side to it" When a dispute is not in existence, whether it is sufficiently imminent will be a question of degree:
? Bent's Brewery Co Ltd v Hogan [1945] 2 All ER 570: The union sought certain information from its pub-manager members, including their takings, trade, and total wages bill, prior to formulating a wage claim. Giving the union this information would have involved these members breaking their contracts of employment. On an application for a declaration by the employers that their employees were not entitled to provide this information. Held: Rejected the argument that the union was acting in contemplation of a trade dispute: such a dispute was neither in being nor imminent. No demand had been made for better conditions or increased wages by any of the managers or by the union on their behalf. The most that could be said was that the union had sent out documents which, after consideration of the information obtained, might lead to a request which, if not granted, might led to a dispute.
? Health Computing Ltd v Meek [1980] IRLR 437: A union sent out a circular instructing its members not to co-operate with the claimants, a private contractor which specialised in computer systems for medical services and which was seeking to do business with the health authorities. The purpose of the circular, according to the union general secretary, was to pre-empt the disputes which would inevitably arise if the health authorities did do business with them. The evidence showed that some health authorities, at least, would be likely to say that they reserved the right to use the contractor's services and it was reasonable to foresee that the enforcement of the union's policy of banning the claimants from the NHS might lead to disputes with those authorities, the disputes being motivated by fears of future redundancies. Held: The circular was distributed in contemplation of a trade dispute. There may be scope to argue that the dispute has ended. This question is important because, where a union is organising an action, the requisite ballot must relate to the dispute it covers. Regarding disputes that never come into existence because, for e.g. the employer cedes to the Union's threat:
? S.244(4) TULRCA: An act, threat or demand which, if resisted, would have led to a trade dispute shall be treated as having been done in contemplation of it even though no dispute arises because the other submits.??3. LOSS OF IMMUNITYA trade union may still lose their immunity in certain circumstances where:Balloting and information requirements have not been complied with; orThe action constitutes unlawful picketing (see below).It may also be lost where one motivating factor is the following:The action is to enforce trade union membership (s.222);It is taken because of dismissal for taking unofficial action (s.223);It constitutes secondary action (s.224);The action is taken to impose a union recognition requirement in relation to trade with a third party (s.225).
? 1. Balloting and information requirementsThese provisions were brought in 'to enhance democracy within the trade union movement'. The real purpose was to mitigate the aspect of peer pressure to vote in favour of strike action and thus reduce strikes.Immunity for industrial action is lost where the balloting requirements are not met. Importantly for individual employees, this will make the industrial action "non-unofficial" (s226)Where the relevant information is not given to the employer then the action is not protected unless the union took such steps as were reasonably necessary to meet the requirement (s234A(1)).Industrial action must be taken within 4 weeks of the ballot unless the parties agree to a longer period not exceeding 8 weeks (s234).A minimum of 7 days before the opening day of the ballot the union must inform the employer that they are holding a ballot, the date of the opening day of the ballot and provide them with a list of the employees and workplaces involved, together with an explanation for how the lists are arrived at: (s226A)A minimum of 3 days prior to the opening day of the ballot, the union must provide a sample voting paper to the employer: (s226A)The union must appoint an independent scrutineer (s226B), who must provide a report after the ballot regarding the union's compliance with all the requirements (s231B).All union members who the union reasonably believes will be induced to take part in the industrial action are entitled to vote: (s227)
? BA v Unite (No 1) [2010] IRLR 423 and London Underground v Aslef [2012] IRLR 196:The voting paper must ask a question with a yes/no answer about whether the person is prepared to take part in a strike. This may be asked alone, or in addition to a separate question as to whether they are prepared to take part in action short of a strike. The voting paper must include a statement that if they do take part in strike or other industrial action, they may be in breach of their contract of employment: (s229)All those entitled to vote are entitled to do so without interference from anyone and at no direct cost to themselves: (s230(1)) It must be a secret ballot: (s230(4)). It must be done as a postal vote: (s230(2)).As soon as reasonably practicable after the ballot, the union must take "such steps as are reasonably necessary" to ensure that all those entitled to vote are informed of: The votes cast; The number of yes votes; The number of no votes; The number of spoiled voting papers: (s231)
? BA v Unite (No 2) [2010] IRLR 809:There is a similar requirement to inform the employer of this information: (s231A)Small accidental failures relating to s227(1) (entitlement), s230(2) (postal votes) and s230(2B) (merchant seamen) are to be disregarded if they are accidental and on a scale unlikely to affect the result of the ballot: (s230). Similar provision is made regarding counting errors: (s230(4))Industrial action must be called by the person specified on the ballot paper: (s233). That person must be someone for whom the union is responsible within s20.By no later than 7 days before the industrial action is to commence, the union must inform the employer of the categories of employees and workplaces involved, the total number of employees and the number of them in each category and workplace, together with an explanation of how the numbers were reached. In addition, they must inform the employer of whether the industrial action will be continuous or discontinuous together with the relevant dates: (s234A).2. PicketingS.220(1)(a) Relevant Torts
? Pickets are likely to be liable for committing economic torts. In addition, four others are relevant:
????????(1) Trespass to the highway:
? Peaceful, non obstructive assembly can constitute reasonable user of the highway and thus not trespass:
? Jones v DPP [1999] 2 All ER 257:

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