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Industrial Action Notes

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INDUSTRIAL ACTION
INDUSTRIAL ACTION
Industrial action
Posner -Employers may be tempted to refuse to accept union's demands (threaten to buy nothing rather than come to terms) and the union must either strike or back down. Union cannot just write off the employer though
- union will be voted out/employer free to go their own way. Classic example of bilateral monopoly - union and employer can deal only with each other and a refusal to deal (by imposing costs) makes them more likely to come to terms. Labour law affects these costs e.g (i) it allows ER to hire replacements for the striking workers during strike and (ii) ER can't fire the striking workers who have been replaced.
Kahn-Freud and Hepple - Why do we tolerate them? They are disruptive and impose costs on parties yet there seems to be general consent that they are an indispensable element of a democratic society.
(i)
Equilibrium argument - the concentrated power of accumulated capital can only be matched by the concentrated power of the workers acting in solidarity (more bargaining power w more ppl).
(ii)
Autonomous sanctions (corollary to collective bargaining)- contract terms not regulated by legislation by predominantly collective action - argued to be more desirable that those who have made the autonomous rules, should also wield the sanctions (TUs+ ERs)- shouldn't be left for inidivudals who didn't participate in rule-making to enforce the terms. Strike is to match managerial prerogative.
Sometimes an agreed grievance procedure is too slow so strike is the factual power of management unilaterally to change the conditions of worksocial necessity.
- Ewing + Hendy argue that without the right to strike, the right to collectively bargain is no more of a right to collective begging as need it to properly counterbalance managerial prerog.
- Marc Moore calls this the 'structural imperative' to legitimise and sustain the reciprocal power imbalance central to the employment relation.
(iii)
Voluntary labour - if people cannot withdraw labour this means that the law compels them to work.
(iv)
Psychological - necessary release of psychological tension.
Cabrelli thinks other arguments can also be added.
(i)
Democratic - freedom of workers to participate in a strike = essential component of a democratic society.
(ii)
Fundamental human right - ideology of universal human rights and cast strike action as a fundamental and inalienable right conferred in favour of workers. Art 28 EUCFR and Art 11 ECHR and Viking Line.
(iii)
Corporate governance - to legitimise the acceptance of the unilateral discretionary prerogative vested in employers, essential that recognition and protection for industrial action is provided by the law.
However, in English law there is no such thing as an inalienable right to strike.
Metrobus Ltd v Unite the Union [2010] - "the right to strike has never been much more than a slogan or legal metaphor…outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract and the economic torts".

While there's a liberty to associate in TUs and certain 'liberties' of action by which TUs can carry on industrial struggle, the 'right to strike' is better characterised as a conditional freedom to strike (got to satisfy procedural/substantive conditions) in order for TU not to be liable.
Freedom rather than a right coz balance to be struck between destructive harm caused and the need for countervailing force to management.

UK approach is to have statutory immunities, ECJ approach accepts the right to strike is a fundi principle of EU
law but must be exercised in a proportionate manner ie whether there was a least restrictive alternative to achieving the TU's legit aim instead of strike action (so proportionality is just as much a form of limitation on the lawfulness of a strike a the UK technique). INDUSTRIAL ACTION
Ewing: says the legal position of British worker is 'remarkable'. A strike, for whatever reason is a berach of contract; any form of industrial action short of strike can lead to ttotal loss pay, those engaged in industrial action may be dismissed regardless of the reason for the industrial action, there's no right to unemployment benefit and strikers+ their fam is penalised by social welfare legislation even if dispute is the fault of the ER. This is coz new market efficiency model sees LL aim is to remove obstacles to the efficient working of the labour market (TUs+ collective bargaining being one of those obstacles)…'there is no humanity in the marketplace'.
Trade Union Liability and Statutory immunities
History:
 Traditional view = Parliament sought to minimise and the courts to maximise, the extent to which the taking of and participation in, industrial action attracted legal sanctions.
Criminal law constraints:
 Until 1875 the criminal law was central in constraining industrial action.
 The 1825 legislation created offences of molestation, obstruction and intimidation thereby specifically curtailing the freedom to strike and picket.
 Master and Servant Acts retained a criminal offence of breaking a contract of employment.
 Criminal Law Amendment Act 1871 defined the offences in the 1825 legislation more precisely. Virtually all picketing was made illegal and posting a strike notice constituted intimidation of employers.
 R v Bunn (1872): common law conspiracy by threatening to break contracts.
Shift to civil law:
 Master+ Servants Act and 1871 Act repealed by the Conspiracy and Protection of Property Act 1875 which reversed Bunn (conspiracy crime) where acts were 'in contemplation or furtherance of a trade dispute).
 1891-1906: courts outflank the protections given to TUs in 1875 Act by expanding liability in tort:
- Creation of the tort of conspiracy to injure (Allen v Flood)
- Tort of inducing breach of contract applied in industrial action.
- Taff Vale (1901): HOL decided that a registered TU could be sued in tort for actions committed by members acting on its behalf.
- South Wales Miners' Federation v Glamorgan Coal Co (1905)- no defence for inducing breach of contract that the conduct was for an honest desire to promote the interests of TU members and not to injure the ER.
Parl reacted to this expansion of TU civil liab by introducing:
 1906 Trade Disputes Act: extensive immunity for TUs against tortious liability and individuals who acted 'in contemplation or furtherance of a trade dispute', permitted peaceful picketing.
- Kahn-Freund says twin pillars supporting to freedom to strike are the 1875 Act protecting against crim prosecution whilst the 1906 Act provided protection against civil liability.
 However, TUs still vulnerable coz of an immunity rather than rights based approach as courts can and have extended liability for which no immunity is provided:
- Rookes v Barnard (1964): HOL held 1906 Act didn't cover newly recognised tort of intimidation.
- Although in 1965 parl reacted by introducing Trade Disputes Act 1965 were TUs got statutory immunity from the tort of intimidation.
- Shows the 'see-saw' game b/w courts and parl. This continued whereby judges extended liab of
TUs at CL and Parl reacting by covering the new forms liab through statutory immunities

Unfair industrial practices approach (coz significant concerns re number of unofficial strikes):
- Heath Gov introduced Industrial Relations Act 1971 immunities replaced w new liabilities +
encouraged tighter control of shop stewards activities (considered to be a resounding failure).
Structure of the 1906 Act was restored by:
- Incoming Labour Gov in the TU and Labour Relations Act 1974 but scope of protection against liab was extended (and trade dispute definition extended). INDUSTRIAL ACTION
- No protection for individuals who were in breach of contract.
- Maintained position from 1971 Act that protection from unfair dismissal only applied in the event of selectivity b/w those dismissed while taking part in industrial action.
 Reaction to the winter of discontent (binmen on strike, vermin problem)significant regulation of industrial action so radical reversal of collective laissez-faire:
- Extensive regulation of industrial action including:
(i)
Immunity for secondary action and most secondary picketing removed
(ii)
'trade dispute' definition limited
(iii)
Prescriptive and complex balloting requirements
(iv)
Loss of comprehensive immunity against liability in tort.
- Removal of protection against dismissal in relation to 'unofficial' industrial action
- TU members entitled not to be 'unjustifiably disciplined' by their TU for refusing to participate in industrial action.
 There was some protection for individual EEs:
- Labour Gov made few changes to the area, only:
- Employment Relations Act 1999- automatic unfairness in dismissals for certain 'protected'
industrial action (although protected industrial action is narrow).
- Tory element of Coalition were vocally anti-industrial action and concerns were focused on
'leveraging tactics of TUs (ppl protesting outside managers homes far from the particular worksite in question) leading to the Carr Review.
 Review was unsuccessful, TUs objected to Bruce Carr QC's appointment coz he acts for several ERs so TUs refused to be involved and people wouldn't give evidenceuseless.
- Conservative 2015 manifesto: protect ppl from disruptive and democratic strike action.
Trade Union Act 2016:
The key provisions of the Trade Union Act 2016 are:
 A requirement that 50% of those entitled to vote must turn out to vote (inserted as s226(2)(a)(iia) TULRCA
1992);
 Where the action relates to "important public services" then 40% of those entitled to vote, must have voted in support (inserted as s226(2A) - (2F));
 Further information must be included in the voting paper, including a "summary of the matter ... in issue in the trade dispute" (inserted as s229(2B)-(2D));
 Two weeks' notice must be given to employers of forthcoming industrial action, unless they agree to 7 days'
notice (replacing s234A(4)(b));
 The mandate for industrial action will expire six months after the date of the ballot, or a maximum of nine months if agreed by the employer (replacing s234(1));
 Union supervision of picketing (inserted as s220A).
Draft regs also been published removing the ban on employers using agency workers to replace striking workers.
Gov said when introducing the bill that it was a key part of the modernisation process bringing 'sunlight to the dark corners of the TU movement'.
CBI were supportive of TU Act, says that employee voice should be returned to members, current laws
'too often empower TU leaders rather than TU members'.
TUC were vehemently opposed to the Bill: argued that the use of agency workers and 14 day notice period fundamentally undermines the right to strike and upsets te employer/worker power balance.
- They objected to additional bureaucratic requirements in relation to picketing and questioned the extent of the meaning of 'important public services'.
Look below for academic criticism (Ford and Novitz). INDUSTRIAL ACTION

UK LIABILITY :
a. What are the likely torts that will be committed via the industrial action?
b. Is the union liable?
i. under s20?
ii. Or via common law vicarious liability?
c. Is the union immune from liability:
i. Is the tort within s219?
ii. Is there a trade dispute within s244?
iii. Is the industrial action in contemplation or furtherance of that trade dispute?
d. Has immunity been lost?
i. Picketing outside s220.
ii. Secondary action: s224 iii. Action for prohibited reasons: s222, 223 and 225.
iv. Failure to meet notification and balloting requirements: s226-234 e. What remedies are available against the union?
i. Injunction ii. Damages.
Rationale for the development of the economic torts
 Business people cannot promote their own businesses at the expense of others by whatever means they choose - the economic torts protect commerce without unduly inhibiting competition.
a) THE ECONOMIC TORTS
NB: virtually all industrial action results in tortious conduct, not expected to know detail of all the tort.
There is a real lack of clarity as to the precise torts but generally:
a) Torts based upon interference with C's pre-existing rights.
b) Torts based on the use of unlawful means.
c) Torts of conspiracy.
NB: Separately, individuals have a staturoy right to seek an injunction to halt a strike (doesn't rely on establishing common tortious liability).
(i)

Torts based upon interfering with claimant's pre-existing rights

INDUCING A BREACH OF CONTRACT
 A TU acts tortuously where they induce the EE to breach their contract with their ER:
Lumley v Gye (1853)
FACT  Singer had an exclusive performing contract with C to sing only for him for 3 months. D
S
persuaded her to break her contract and sing for him instead.
HELD  D's action was tortious-induced breach of contract with C.

HELD


OBG v Allan (2008)
Lord Hoffman said that Lumley v Gye means that the person procuring the breach of contract is held liable as an accessory to the liability of the contracting party so LIABILITY IS DEPENDENT
UPON THE CONTRACTING PARTY HAVING COMMITTED AN ACTIONABLE WRONG.
So it is an additional claim against procurer as well as other contractual party.
4 features that Hoffman identified in the exposition of the Lumley requirements:
(i)
Inducement - You must know you are inducing a breach of contract, not just that you are procuring gan act which is a breach (you must realise you are inducing it).
- Advising employees is not enough - there must be an element of pressure or persuasion. Got to be directed towards one of the contractual parties (Middlebrooks INDUSTRIAL ACTION
Mushrooms v TGWU).
(ii)
Knowledge of the contract - Court will adopt a subjective analysis of this question -
- TU must actually know there was a breach.Still unlawful for a 3rd party to procure a breach of contract knowingly, or recklessly, indifferent to whether there's a breach or not: turning a blind eye to the existence of a contract b/w EE and ER will still be held as the TU having knowledge.
(iii)
Intention - got to be shown that the TU has intentionally procured breach of contract.
o Unlike causing loss through unlawful means, you do not need to intend to harm claimant.
o South Wales Miners' Federation v Glamorgan Coal Co Ltd - TU liable even though the interests of the claimant mine owners were also served - by restricting coal production the price of coal increased).
(iv)
Breach of contract - fundamental requirement that there has been a breach of contract by the employees in question. 'There is no secondary liability without primary liability'.

FACT
S


HELD

Middlebrook Mushrooms Ltd v TGWU (1993)
Mushroom couldn't agree overtimeindustrial action89 EEs were dismissed.
TU wanted members to hand out leaflets to customers and to ask support for those who'd been dismissed for refusing to buy mushrooms.
This wasn't inducement coz it was aimed at customers who aren't parties to the contract and they can make up own mind whether to buy the mushrooms, as it was indirect there was no inducement.

As an injunction can't be granted against an EE coz an injunction would compel them to do work (s236 TULRCA
1992), this tort is useful in industrial action coz it enables the ER to seek an injunction against the TU.
A defence of justification is available for this tort. However, this should be very narrowly construed. According to Deakin, it is strongly arguable that inducing employees to stop work for health and safety reasons should be covered given there is a statutory right for employees to stop work in these circumstances.
Collins - Persuading another person to break a contract because it is to their economic advantage should surely not constitute a tort if the market is to be competitive? The contract breaker may have to pay compensation for losses, but wealth maximising breaches of contract need to be permitted, in order to allow businesses to find the best opportunities for profit in a constantly changing market place.
Tort of inducing breach of other obligations:
Tort of inducing a breach of stat duty is relevant in the public sector:
Meade v Haringey London Borough Council (1979)
FACT  School caretakers went on strike which meant that schools couldn't be opened.
S
 Parents claimed breach of stat duty by the LA and sought interim injunction preventing schools from closing but this was refusd so went to COA (by time it reached COA the school opened).
HELD 
COA didn't conclusively determine answer to the question but said if there had been an inducement it would not be covered by the immunities.
Need to satisfy requirement that the statutory duty in question is independently actionable and this will depend from cases to case - usually involves showing duty imposed for benefit of particular class to which C
belongs finding actionable breach of stat duty is hard.
BALPA v British Airways
FACT  BA wanted to move part of their operations to Paris. BA argued that the proposed industrial
S
action by the TU to prevent this would violate these rights of freedom of establishment (Art 49
TFEU).
 BA argued the TU would be committing a tort of interfering with horizontally applicable treaty rights and threatened legal action inducing claim of damages of £100m a day. INDUSTRIAL ACTION
 BALPA went to court to seek a declaration of the lawfulness of the strike (even though BA didn't say they wanted an injunction, rather, damages).
 BALPA had to stop pursuing declaration coz of the time it would take and stop the strike but
BALPA complained to the ILO about the practical limitations on the right to strike and the type of damages which would bankrupt the TU.
HELD  As BALPA didn't pursue claim this is undecided.
As these torts aren't within scope of stat immunities (s219 TULRCA) the TU will be liable for the tort committed so if acting for the employer will want to argue TU induced breach of stat duty but this will be hard to prove.

(ii)
Torts based on use of unlawful means
Requires that D intentionally causes loss to the claimant by wrongfully interfering with some activity of a third party in which the claimant has an economic interest ie A uses unlawful means with the intention of causing loss to B.
Primary liability - does not require wrongful act by anyone else.

CAUSING LOSS BY UNLAWFUL MEANS
 This is the 2nd tort expounded by Lord Hoffman in his 'two tort analysis'.
 Garrett v Tayor (1620)- D liable coz he drove away customers of Headington Quarry by threatening them with mayhem and vexatious suits. This was the origin of the tort. There is no other wrong for which D is liable as accessory.
OBG v Allan [2008] - Lord Hoffman's analysis reveals certain key principles
(i)
Tort of primary liability - not requiring a wrongful act by anyone else.
(ii)
Unlawful means requires the use of means which are unlawful under some other rule (unlawful per se) whereas liability under Lumley v Gye requires only the degree of participation in the breach of contract which satisfies the general requirements of accessory liability for the wrong act of another person.
(iii)
Liability does not depend on the existence of contractual relations unlike L v G - it is sufficient that the intended consequence of the wrongful act is damage in any form.
(iv)
Although both torts are described as torts of intention, because damage to economic expectations is sufficient to found a claim, there need not have been any intention to cause a breach of contract or interfere with contractual rights. In this tort got to show that there was an intention to cause loss.
- Lord Hoffman: 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: necessary intention is present where D's gain and C's loss are to D's knowledge
'inseparably linked'.
What actually constitutes 'unlawful'?
 Lord Hoffman - the act needs to be independently actionable (by a third party)
 Lord Nicholls - proposes a broader definition including 'all acts which a person is not permitted to do' or
'doing what you have no legal right to do' - this seemed more similar to the broader approach take in
Rookes v Barnard.
 Lord Hoffman's 'independently actionable by a third party' approach was preferred by the majority in
OBG there is no settled law on this - not helped because the Lords did not explicitly overrule Rookes,
they just held that for acts against a 3rd party to constitute unlawful means, they had to be actionable by that 3rd party unless the only reason they weren't actionable was coz the 3rd party had suffered no loss.
(This obvi appears to conflict with Rookes as he had no right against the ER so the position is unclear).
Tort of intimidation
FACT

Rookes v Barnard [1964]
2 shop stewards and a TU official threatened an employer (BOAC) with a strike unless a non- INDUSTRIAL ACTION
S
unionist (Rookes) was dismissed.
 ERs terminated Rookes' contract lawfully and with notice.
 Rookes sued TU officers for threatening to breach the contract which constituted intimidation.
HELD  Rookes' action was allowed, he could sue TU for intimidation, that coercion was unlawful.
 Lord Devlin: threat to breach contract as much unlawful means as threat of physical harm.
o Post OBG - view intimidation as a sub-category of the tort of causing loss by unlawful means. The tort had very wide coverage and threats of unlawful action constituted unlawful means as well as intimidation (and torts of nuisance and trespass were also included).
o This was controversial, Hoffman extrajudicially said it's a 'bold instance of judicial law-making'. The tort of intimidation has significant implication for liab of TUs insofar as liab for organising strike action is extended to merely threatening strike action.
o However, the tort of intimidation has attracted little consideration since Rooks and post-OBG
intimidation is viewed as an act which can constitute 'unlawful means necessary for establishing the tort of causing loss by unlawful means rather than an economic tort in its own means.

The principal elements post Rookes are twofold:
(i)
Threat - the threat must be of the 'or else' kind and must cause the person threatened to act in the desired manner, not just a warning e.g warning of TU trouble wont constitute a threat coz it could involve either lawful or unlawful conduct (Pete's Towing Services). The threat must be effective, the
ER must succumb to the pressure of TU making the threat (Morgan v Fry)
(ii)
Unlawfulness - the threat must be to do something unlawful. There is no definition of this.
- Carty - takes the view that coherence in the law of economic torts dictates that unlawfulness for the purpose of intimidation must be the same as for causing loss by unlawful means. In this way - takes the view that unlawful act needs to be independently actionable by a third party.

Fraser Butlin: Can interpret Hoffman's speech in OBG by there are two torts which fall under the "umbrella tort" of causing loss by unlawful means:
a. The tort of intimidation where the threats themselves constitute the unlawful means and they do not need to be independently actionable by themselves;
b. The tort of causing loss by unlawful means where independently actionable loss or damage is required.

Probably no defence of justification available.
Arguable that Rookes v Barnard principle should not be extended to 2 party cases (ie where 1 contractual party intimidates another contractual party, causing loss to that other party) as this would enable circumvention of contract law principles such as remoteness and mitigation to use tort law claims.
Alternative way of obtaining redress may be via doctrine of economic duress:
- If a party to a contract is obliged to enter into or agree to certain terms because of illegitimate coercion by the other party - it may claim that the contract is voidable for duress and claim repayment of anything paid where ER had no practical alternative other than to concede.
o Universe Tankships Inc of Monrovia v ITWF - ER allowed to recover payments made into an EE
welfare fund whilst his business was 'blacked' by employees of his business partners.
o Since TULRCA only provides immunity from tortious liability, the immunities are bypassed since the employer's claim for restitution of payment made rests in contract.
(iii)
Conspiracy 2 types of conspiracy;
(i)
Conspiracy by lawful means - 2 or more persons combine together with intent to injure the C by the use of means which, although being lawful in themselves, are used with the predominant purpose of harming the claimant rather than advancing the legitimate interest of the combiners.
o Damage is necessary to complete the cause of action.

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