Yetunde Odunsi BLP006C (03023873)

During the Unite union’s recent dispute with British Airways Joint General Secretary Tony
Woodley said: "...it is now all but impossible to take legally protected strike action against
any employer..."

Critically comment on the law relating to industrial action with particular reference to a
worker’s ‘right to strike’. You should refer to relevant case law, statute and international
agreements where appropriate.

Introduction
This essay seeks to look at the guiding laws and principles guiding industrial action and
whether or not in principle workers have a ‘right to strike’ under the UK constitution.
‘The right to strike is of both historical and contemporaneous significance. In the first place,
it is of importance for the dignity of workers who in our constitutional order may not be
treated as coerced employees. Secondly, it is through industrial action that workers are able
to assert bargaining power in industrial relations. The right to strike is an important
component of a successful collective bargaining system’.
(NUMSA v Bader Bop (Pty) Ltd 2003 (3) SA 513)

According to Sargent and Lewis (2010, 360), pre the 1870s the criminal law was used against
employees who took industrial action in defence of their collective rights. However, the
turning point came in the 1870s with the passing of a number of statutes, notably the Trade
Union Act 1871 and the Conspiracy and Protection of Property Act 1875, which protected
members of trade unions from the common law doctrine of ‘restraint of trade’.

While these acts do not abolish the offences for which a worker might be prosecuted, it
provides immunity from prosecution if the ‘offence’ was committed ‘in contemplation or
furtherance of a trade dispute’. According to Lord Denning, as citied in Sargent and Lewis
(2010, 361) ‘Parliament granted immunities to the leaders of trade unions, it did not give
them any rights. It did not give them the right to break the law or to do wrong by inducing
people to break contracts. It only gave them immunity if they did.’

Under UK law, the statutory provisions which permit the organization of industrial action and
participation in such action are framed in terms of immunities from the tortious and criminal
liability that would otherwise attach. For that reason, the existence of a right to strike in the
UK has sometimes been disputed. In some quarters, the view has persisted that the wording of
the legislation reflects the fact that industrial action is an interference with the employer's
‘natural’ right to manage. (Heery et al, 2001)

Government Approach and Trend

The 1979 Conservative election manifesto, which followed the 'winter of discontent', pledged
to restrict industrial action, although it said nothing about how this might be done. Its 1983
manifesto, which came in the wake of a water strike, was more specific; it stressed the need
for essential services to be governed by 'adequate procedure agreements' and promised
consultations on removing civil liability for industrial action which breached them. Lastly, in
1989, after disruption on the railways and London underground, ministers again indicated that
restrictions were being considered (Heery et al, 2003:82). The two main legislation
surrounding trade union activities at this period are Trade Union Act 1984 and Trade Union
Reform &Employment Right Acts 1993.

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Mansell(1999,17) claims that the Labour's manifesto for the May 1997 General Election
promised that the "key elements" of the Conservative Government's trade union reforms
would stay. Frost and Taggart (2010) supports this claim by stating the Labour Government's
White Paper, Fairness at Work, published in May 1998, similarly emphasised that, for the
most part, the Conservative Government's trade union laws would remain:

‘There will be no going back. The days of strikes without ballots, mass picketing, closed
shops and secondary action are over. Even after the changes we propose, Britain will have
the most lightly regulated labour market of any leading economy in the world’.

The Labour Government sought to keep the key elements of the trade union legislation of the
1980s - on ballots, picketing and industrial action (Frost and Taggart, 2010). Most legislation
was kept with various amendments and there was an Introduction of the Information and
Consultation of Employees’ Regulations 2004 SI NO3426.

Right to strike
Industrial Action Process and Immunities
One of the key requirements of lawful industrial action is that it is supported by an
anonymous ballot of the union membership. In order to benefit from the statutory immunities
against liability for industrial action, a trade union must comply with procedural
requirements. The procedural requirements themselves involve two sets of obligations. First,
a trade union which is planning industrial action must hold a ballot of the relevant workers,
and the planned action must be supported by a majority of those workers. This provision was
introduced under the Trade Union Act 1984 with the aim of strengthening democratic right of
union members. (Fredman and Morris, 2009) In the case of BA v Unite, the court granted an
injunction based on the overall balloting process being sufficiently flawed as Unite had
balloted employees who had accepted voluntary redundancy in the ballot figures given to BA.
This in essence did not depict a true picture of a majority vote. The courts ruling supports
TULRCA 1992 s.219 which states that, if industrial action takes place without a ballot
complying with the rules then there will be no immunity from actions in tort.

Second, the union must provide the employers of the relevant workers with specified
information and notice relating to the ballot and to the pursuant industrial action. This was
introduced under the 1993 Trade Union Reform and Employment Rights Act. (Fredman and
Morris, 2009) In the case of EDF v RMT, the judge ruled in favour of EDF holding that EDF
was entitled to be told which trades were being balloted and might subsequently be called out
on strike as it would make a material difference to EDF if it had to face, for example, a trade
room inspector withdrawing his labour as opposed to a fitter. They may have different skills;
different roles and the loss of one might have significantly different effects to the loss of the
other.

It is stated by Sargent and Lewis (2010, 370) that in contrast to the law in many other EU
member states, in the UK, collective employment 'rights' are not legally enforceable unless a
collective agreement is specifically incorporated into an employee’s contract. The legal right
to conduct collective bargaining is the essential basic feature of a recognized trade union.
Issues can arise concerning whether collective agreements are incorporated into employees’
individual contracts of employment. In Malone and others v British Airways Plc some

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employees claimed that the employer had breached a term of a collective agreement
stipulating the balance and numbers of crew members known as complements. The
employees claimed breach of contract as the employer had unilaterally reduced the crew
complements on its aircraft below the levels which had been agreed through collective
bargaining with the union. The employees sought an injunction that would make BA increase
the crew numbers to previously agreed levels. The court held that the provisions about the
complement of the crew intended was an undertaking binding only in honour, but not
enforceable individually. Although the provisions had an impact on the working conditions of
the cabin crews, there would be such serious implications for the employer that the provision
could not have been intended to be individually enforceable.

Is there really a right to strike?

There is no general right to strike in UK under any British law. Common Law tort regards
strike as a breach of contract of employment and the calling of a strike as an inducement to
another to breach the contract of employment. (Heery et al, 1999:40) As evident in the case of
Lumley v Gye, Which involved an opera singer, Miss Johanna Wagner, who was induced by a
theatre manager to breach her contract with one theatre in order to appear at the defendant’s
own theatre. The court held that each party has a right to the performance of the contract and
that it was wrong for another to procure one of the parties to break it or not perform it.

The European Court of Justice rulings on Viking Line and Laval, have a potentially far-
reaching impact on the lawfulness of industrial action in the UK. In both cases, employees
sought to strike to protest against plans to replace workers from one EU country with lower-
paid workers from another. The European Court of Justice held that, although the right to take
industrial action is a fundamental right, it must be proportionate, in particular with regard to
the economic right of the employer which, under Article 49 of the EC treaty, includes
freedom to provide services. It was held that national courts should assess whether the union
taking industrial action has ''other means at its disposal which were less restrictive of freedom
of establishment'' and has ''exhausted those means''.(Ornstein, 2008)

Taylor and Mathers (2004, 269) claims these requirements impose significant new restrictions
on when industrial action is lawful in the UK, claiming as an example that, the requirement
under UK law for lawful industrial action to relate to a trade dispute (defined in s.218 of
Trade Union and Labour Relations (Consolidation) Act and interpreted broadly by the courts),
appears wider than the requirement from the ECJ that lawful industrial action must protect
workers' rights. Where community rights apply, the narrower ECJ test rather than the broader
TULR(C) A will apply.
Taylor and Mathers (2004, 269) also claims in addition, that the guidance that the ECJ has
given on proportionality suggests that the lawfulness of industrial action will depend on
matters including the steps a union has taken to try to resolve a dispute, the alternatives to
taking industrial action and the level of impact that the issues in dispute has on employees -
matters that have no bearing on the lawfulness of industrial action under UK domestic law.

According to Ewing and Hendy (2009), it has been suggested that the negative protection
afforded by the statutory immunities ought to be regarded as equivalent to the positive
protection of the right to strike found in other jurisdictions; that the choice to frame the law in
terms of statutory immunities, rather than rights, was down simply to a technique of drafting.

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This equivocacy notwithstanding, according to Taylor and Mathers (2004, 269) it has recently
become possible to argue that UK law does recognise a right to strike, albeit indirectly,
through the Human Rights Act 1998 and Article 11 of the European Convention on Human
Rights (ECHR). In April 2009, the European Court recognized for the first time that Article
11 protects the right to strike and that state interference with that right must be justified in
accordance with Article 11(Ewing &Hendy, 2010). Potentially, this ruling could have very
significant implications for UK law. In recent decisions involving the interpretation of Article
11, the European Court has made reference to Conventions of the International Labour
Organisation (ILO) and to the European Social Charter (ESC), both of which recognise a right
to strike. Should the Court, in future cases, interpret the substance and nature of the right to
strike as protected by Article 11 with reference to ILO and ESC jurisprudence, UK law could
be found to breach Article 11 in a number of respects.

Conclusion
The courts appear to be taking a strict approach to interpreting the statutory ballot provisions
and unions are being punished if they have not taken sufficient care in the way they run a
ballot for a strike. The English law relating to industrial action is labyrinthine and, indeed, has
been condemned by the International Labour Organization as probably infringing freedom of
association principles on grounds of its complexity alone. (Ornstein, 2008) As well as being
complex, the law is also extremely uncertain. The lawfulness of industrial action may depend,
for example, upon the construction of statutes drafted for an entirely different purpose, and
the general criticisms which are levelled at the process by which interlocutory injunctions are
granted are even more apparent in this context. More broadly, the fact that in many instances
the lawfulness of a dispute depends upon the exercise of discretion by the courts leaves the
position open too late for detailed forward planning. The rulings of Viking line and Laval
impose substantive new restrictions on the lawfulness of industrial action and require the UK
courts to adopt a new approach to the grant of injunctive relief, at least where there is a direct
international element. Moreover, they may also apply where there is very little or even no
direct international element. There is therefore every reason to conclude that Viking Line and
Laval have provided employers with a potent new weapon with which to oppose industrial
action.

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Malone and others v British Airways plc [2010] EWCA Civ 1225; [2010] WLR (D)
280
British Airways plc v Unite the Union [2010] WLR (D) 131

EDF Energy v National Union of Rail Maritime and Transport Workers [2010]
EWCA Civ 173

NUMSA v Bader Bop (Pty) Ltd 2003 (3) SA 513)

Laval Un Partneri Ltd v Svenska Byggnadsarbetareförbundet Case C-341/05 ECJ

Viking Line ABP v International Transport Workers' Federation & Anor [2005]
EWHC 1222 (Comm)

Lumley v Gye (1853) 2 E & B 216