24
Employment rights related to trade union membership and non-membership

Aims and Objectives

After reading this chapter you should be able to:

• ■ Understand the basic right to trade union membership or non-membership
• ■ Understand the rules related to recognition of trade unions
• ■ Understand the circumstances in which time off for trade union related activities is allowed
• ■ Understand the process of collective bargaining
• ■ Understand the circumstances in which participation in a trade dispute gains statutory protection
• ■ Understand the rules regarding dismissal for trade union membership, nonmembership or trade union activity
• ■ Critically analyse the area
• ■ Apply the law to factual situations and reach conclusions

24.1 Introduction: the origins of modern trade union law

Trade unions really begin with the medieval guild system which regulated trade and apprenticeships. Modern trade unionism really begins with collective action by members of traditional crafts in the wake of developing mechanisation and industrialisation in the eighteenth century (see Chapter 1.1.2). The Industrial Revolution created enormous wealth but it was also characterised by great poverty and also mass unemployment amongst the adult male workforce from the traditional skills such as hand loom weaving in the woollen industry.

The use of child labour in the emerging cotton industry and the fact that poor relief at the time was the responsibility of the parish meant that there was a plentiful supply of cheap labour and enabled employers in the new industries to keep wages low. The Napoleonic wars at the start of the nineteenth century depressed exports and created more unemployment. The Corn Laws artificially increased the price of grain and worsened the effects of poverty. The widened use of mechanised industry led to an even bigger increase in child and female labour.

This was a time of great change and there were many factors that would cause distress to working people. Following the loss of a significant colony in the American War of Independence and with an eye on the recent so-called ‘reign of terror’ following the French Revolution the ruling class was wary of collective action by workers and fearful of mass social unrest of the kind seen in France. The result was the Combination Act 1799 and the Combination Act 1800. The Acts provided that any combination aimed at securing the advancement of wages or the reducing of hours or of improving the conditions of work were unlawful and subject to a period of three months’ imprisonment or two months’ hard labour. The Acts were significant because it was the first legislative repression of workers as a class.

Some workers responded by what the establishment identified as ‘bread riots’ where stocks of grain were taken and sold on at ‘reasonable’ prices. In specific areas such as Nottinghamshire where the woollen trade had been replaced by a mechanised cotton industry and there was large scale unemployment amongst traditional skilled workers the Luddite movement grew up which was characterised by the wrecking of the new machinery. With the suspension of habeas corpus such localised movements gradually developed into a wider movement for political reform led by leading radicals of the time such as Cobbett and Hunt. However, calls for reform came at a heavy price such as the so-called ‘Peterloo Massacre’ in Manchester in 1819 where at a peaceful demonstration magistrates ordered a cavalry charge through unarmed defenceless people with swords drawn. There were sixteen deaths and more than 600 injured.

Working people experienced a very mixed economic and social climate during the early nineteenth century. In fact while industrial and agricultural workers experienced completely different conditions this could also be said of the landowners and industrialists of the time. A partial repeal of the Combination Acts did in fact occur in 1824 which in a very limited way legitimised some trade union membership and even more limited industrial action. Nevertheless, this involved the most cynical strategy on the part of the ruling class who had clearly reached the conclusion that illegal combinations always posed a greater threat of sedition and revolution than legal ones that it was felt would quickly disappear. In any case the point became largely academic in 1825 when an amending Act (the Combination of Workmen Act 1825), whilst retaining the legality of membership of trade unions, nevertheless made illegal any form of industrial action thus rendering trade unions ineffective in law.

The benefits to working people of political reform as an answer at that time are shown by the impact of the so-called Great Reform Act 1832 which only extended the electorate from 220,000 to 670,000 out of a population of over fourteen million. As a result there was an upsurge of trade union activity in 1834 and the shift towards the idea of a national trade union. This eventually resulted in the formation of the Grand National Consolidated Trade Union which grew rapidly to a membership of half a million and coincided with a surge of militant action.

The case of R v Loveless and Others [1834] (the so-called Tolpuddle Martyrs) six Dorset farm labourers combined to form a union and swore the oath of the Grand National. They then tried to recruit other men from a neighbouring village. Local magistrates, who feared unrest if unionism spread, sought advice from the Law Officers in London and were advised to prosecute the men under the Mutiny Act 1797 for swearing unlawful oaths, although the section actually concerned oaths of silence made by serving soldiers and sailors during acts of mutiny. The actual date of the offences charged was also different to the date when the oaths had been made. Nevertheless, the men were transported to Australia (at that time a penal colony) for seven years in essence for membership of a legal trade union.

The volume of strikes in a short period caused the decline and collapse of the Grand National which had neither the organisational capability to organise widespread action nor the physical resources to support it.

Later in the century new model unions were created which concentrated on specific trades. The Amalgamated Society of Engineers is a classic example. The leaders of some of those unions coordinated their activities and were able to exert some moderate influence becoming known briefly as ‘the junta’. A significant legal decision at the time which caused unions great distress and alarm was Hornby v Close [1867] 2 LRQB 153 in which it was deemed not to be unlawful for a branch treasurer who had embezzled the union to abscond with the funds of the union. Legislation in 1867 also prevented unions from being registered under the Friendly Societies Act 1793 because of the practice of paying strike pay to employees who otherwise would have no means of support. A subsequent Royal Commission which divided into two camps producing different reports nevertheless remedied the situation by passing the Trade Union Funds Protection Act 1869.

The government under pressure also later passed the Trade union Act 1871 which produced a major advance for trade unionists in section 2:

The Act also permitted trade union property to be held by trustees so that it could be protected in law. However, it did not permit unions to gain the corporate personality enjoyed by business. The Criminal Law Amendment Act 1871 repealed the 1825 Combination of Workmen Act and thus legitimised the activities of unions in trade disputes except for molestation and obstruction. However, any benefits were short lived with the court in R v Bunn [1872] 12 Cox, CC 316; 14 Digest 116 where gas workers striking against the dismissal of a fellow worker were held guilty of common law conspiracy. The judge condemned the Criminal Law Amendment Act 1871 and held that molestation was ‘any unjustifiable annoyance and interference with the masters in the conduct of their business’ in effect reversing the immunities granted in the Act.

There were also a significant number of successful actions for breach of contract following strikes despite statutory modifications to the master and servant rules. In fact greater union militancy, a refusal to cooperate with the Royal Commission and the new strategy of unions of putting forward their own candidates in parliamentary elections which resulted in the election of two officials, all persuaded Disraeli, the Prime Minister, to repeal the remaining master and servant rules in the Employers and Workmen Act 1875. The immunities from the 1871 Act which the judges had rendered ineffective were replaced with more specific immunities in the Conspiracy and Protection of Property Act 1875. This provided in section 2 that the doing or procuring of an act in furtherance of a trade dispute was not actionable as a conspiracy unless the act itself was actionable. So it removed the ambiguity surrounding molestation, specifically overruled R v Bunn and meant that trade unions were legal both in terms of their membership and their activities in furtherance of trade disputes.

Despite this apparent statutory protection, unions still on occasions suffered harshly at the hands of the judiciary. Picketing was expressly illegalised in Lyons v Wilkins [1899] 1 Ch 255. Procuring a breach of contract was held to be illegal in Bowen v Hall [1881] 6 QBD 333. Inducing a party not to enter into a contract was declared illegal in Temperton v Russell [1893] 1 QB 715 which might appear acceptable if it was not for the fact that the court held the opposite in the case of a business in Mogul Steamship Co v McGregor, Gow & Co [1892] AC 25. Some cases did go the unions’ way as in Curran v Treleaven [1891] 2 QB 545 where the court would not accept boycotting as intimidation under the 1875 Act and Allen v Flood [1898] AC 1 which held that an inducement to breach a contract was not illegal unless the means used to secure it were also illegal. In this latter case Lord Chancellor Halsbury tried to obtain the opposite result by packing the court with his own supporters but was in fact defeated by the influence of Lord Herschell, himself a former Lord Chancellor.

Nevertheless, the court in Quinn v Leatham [1901] AC 495 (see 24.6.1 below) accepted that a conspiracy to induce breaches of contract injurious to the employer was unlawful. The judicial dispute was between illegal means and illegal motive so many commentators have suggested that Allen v Flood was the safer decision. Only a few days prior to Quinn v Leatham the so-called Taff Vale case Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] UKHL 1 allowed that a union registered under the 1871 and 1876 Acts was able to be sued allowing the employer recovery of £23,000 from union funds. The result of these cases was almost express reversal of statutory provisions which threatened not just unions but the friendly societies also.

The unions had enjoyed twenty years of progress, had grown steadily in membership, had begun to coordinate their activities under the umbrella of a Trade Union Congress. In parallel with this there had been renewed interest in parliamentary representation through the Social Democratic Federation, the Independent Labour Party and the Labour Party. Candidates stood in the 1900 elections with no success but following the judicial interference with statutory rights in the 1906 elections, besides the government being routed for the first time, twenty-nine Labour Party MPs were elected to Parliament. Following this the new Liberal government introduced the Trade Disputes Act 1906. The Act removed certain illegal conspiracies, restated the former statutory immunities and identified in section 1 that ‘an act if done in contemplation or furtherance of a trade dispute, shall not be actionable unless the act, if done without any such agreement or combination, would be actionable’. It also in section 2 legalised some picketing and in section 4 prevented tortious actions against union members. The Act had legal force for much of the twentieth century until the Thatcher government of the 1980s.

24.2 Trade union membership and non-membership

There are a number of rights which an individual enjoys in relation to membership and non- membership of a trade union. These are mostly contained in the Trade Union and Labour Relations (Consolidation) Act 1992 but some rights are also identified in the Employment Rights Act 1996. The rights are quite diverse in character and cover access to employment, time off for legitimate activities engaged in at appropriate times, industrial action, discipline and dismissal.

The basic right is to belong to a trade union or indeed not to belong to a trade union. The employee should have complete freedom to do either. In terms of access to employment the basic right not to be denied access to employment because of membership or non-membership of a trade union is found in section 137 Trade Union and Labour Relations (Consolidation) Act 1992.

Denial of access to employment on these grounds covers:

• ■ refusing or deliberately omitting to consider the application or enquiry; or
• ■ causing the applicant to withdraw or cease to pursue the application or enquiry; or
• ■ refusing or deliberately omitting to offer the applicant employment of that description; or
• ■ making the applicant an offer of such employment the terms of which are such as no reasonable employer who wished to fill the post would offer and which is not accepted; or
• ■ making him an offer of such employment but withdrawing it or causing the applicant not to accept it.

Different approaches have been taken to the application of section 137. It was traditionally accepted for instance that a refusal to employ a person for past trade union activities was legitimate.

However, this contrasts with the position where the claimant is being dismissed for past trade union activities which has been held to be contrary to section 146 Trade Union and Labour Relations (Consolidation) Act 1992 in Fitzpatrick v British Railways Board [1992] ICR 221 (see Chapter 24.8.1).

Each case has to be judged on its individual circumstances but it is also clear that there is a significant overlap between membership and activity.

However, a distinction has been drawn between the purpose of refusing the person employment and the effect of refusing them employment and this is something that the court also needs to consider. This was the position of the then House of Lords in Associated British Ports v Palmer [1995] IRLR 399 where the employer had replaced a collective agreement to which it was a party with redrafted individual contracts. This was challenged as unlawful and, while the Court of Appeal stated that this discriminated against trade union rights, the House of Lords overruled and held that the purpose was in fact flexibility and it was therefore lawful. It is likely that this latter view conflicts with the position taken by the European Court of Human Rights in Wilson, National Union of Journalists and Others v the United Kingdom [2002] IRLR 568 ECHR which also concerned discrimination against trade union rights during employment (see Chapter 24.7). It may be then that the position is different before employment and during employment.

Under section 137(3) a job advertisement that indicates in any way that employment is only open to applicants who are a member of a particular trade union or who are not a member of a trade union will straightforwardly create a presumption that employment has been refused because of trade union membership or non-membership or past activities and so is contrary to section 137. On this basis it would be best practice for an employer to remove any mention of trade unions at all in job advertisements.

Section 138 extends the provisions to employment agencies. However, there are a number of exclusions from the operation of section 137:

• ■ self- employed;
• ■ members of the armed forces;
• ■ police officers;
• ■ share fishermen;
• ■ employees who ordinarily work outside the UK;
• ■ seamen working on ships that are not registered in the UK;
• ■ exemptions made by the Secretary of State for national security reasons.

Remedies are under sections 139–142. Complaints should be made to the tribunal within three months of the act complained of. If the claimant succeeds in the claim then the court may make a declaration, award compensation and may make recommendations for remedial action by the employer.

24.3 Trade union recognition

Recognition of a trade union by an employer is important for all sorts of reasons but in particular it enables the two to engage in collective bargaining and allows the union to have disclosure of information which is essential to collective bargaining (see 24.5 below) and also it means that the union must be consulted where there are collective redundancies (see Chapter 23.4) and on transfer of undertakings (see Chapter 18.6).

Recognition is defined in section 178(3) Trade Union and Labour Relations (Consolidation) Act 1992 as ‘recognition by an employer, or two or more associated employers ... for the purposes of collective bargaining’.

Recognition can be of two types:

• ■ voluntary
• ■ statutory.

Voluntary recognition

Where recognition of a trade union by an employer is voluntary this is unremarkable and as the term voluntary suggests the employer will have reached an agreement with a particular trade union or unions by which the employer is prepared to engage in collective bargaining. This is actually useful for the employer since it potentially reduces the number of parties with whom the employer has to negotiate and therefore the amount of time taken up by negotiations. It is also the case that a trade union may be more prepared to compromise and reach an agreement than many individual employees. Furthermore if the contract is expressly made subject to collective agreements made periodically with the recognised trade union employees are bound.

Statutory recognition

Following the Employment Relations Act 1999 Schedule 1.1 a new Schedule A1 was inserted in the Trade Union and Labour Relations (Consolidation) Act 1992 setting out rules for statutory recognition of trade unions.

The rules are complex but in order to gain recognition a trade union must make a request under Schedule A1 paragraph 4 Trade Union and Labour Relations (Consolidation) Act 1992 to an employer which employs more than twenty-one employees for recognition for the purposes of collective bargaining. The request should be in writing and state that the request is being made under the provisions of the Act.

There is then a ten-day period for the employer and the trade union to negotiate on recognition. If the negotiations are unsuccessful then there is a further twenty-day period for the parties to try to agree on the bargaining unit. During this time the parties can seek the assistance of ACAS.

If the negotiations have still not resolved the issue then the union may apply to the Central Arbitration Committee which will need to determine whether:

• ■ the proposed bargaining unit is appropriate;
• ■ the union has the support of the majority of the workforce.

At least 10 per cent of the proposed bargaining unit must be members of the trade union. If there are less then the Central Arbitration Committee will not proceed further. However, if more than 50 per cent are union members then automatic recognition applies and a declaration to that effect is made.

In some instances a secret ballot is carried out. Under Schedule A1 paragraph 22(4) Trade Union and Labour Relations (Consolidation) Act 1992 this is where:

• ■ The ballot would be in the interests of good industrial relations.
• ■ There is evidence of a significant number of members who do not wish to be represented in collective bargaining.
• ■ There is evidence of a significant number of members who do not wish to be represented by the union or unions.

Once recognition is obtained it is effective for three years.

24.4 Trade union related time off

There would be little point in guaranteeing rights of membership of trade unions if members were not then able to engage in legitimate activities. In similar fashion an official or representative of a trade union would be rendered functionless if they were not able to carry out their duties to their members. For these reasons there are also rules relating to time off to carry out trade union duties and time off to engage in trade union activities.

24.4.1 Time off for trade union duties

Under section 168 Trade Union and Labour Relations (Consolidation) Act 1992 an employer must permit an official of a recognised trade union time off during working hours to carry out his official duties in respect of:

• ■ negotiations with the employer connected with collective bargaining; or
• ■ the performance on behalf of employees of the employer of functions related to or connected with matters falling within collective bargaining which the employer has agreed may be so performed by the trade union; or
• ■ the receipt of information from the employer and consultation by the employer in connection with collective redundancies or transfer of undertakings; or
• ■ receiving training in industrial relations relevant to carrying out the duties for which recognition is given and which is approved by the TUC and the specific trade union.

Under section 168(3) the amount of time off which an employee who is an official of the trade union can take off for these purposes is that which is reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS and the employee will be paid as normal.

If the employer fails to allow the employee the appropriate time off for the purposes of section 168 or fails to pay the employee then the employee can make a complaint to the tribunal. However, it is not reasonable to expect the employer to pay for duties carried out in the employee’s own time.

24.4.2 Time off for trade union activities

Time off for taking part in trade union activities is covered in section 170 Trade Union and Labour Relations (Consolidation) Act 1992 which is fairly clearly stated.

Again as with time off for carrying out trade union duties time can only be taken that is reasonable in the circumstances having regard to the ACAS Code of Practice and under section 170 there is no right to pay.

Obviously again if a request for time off to engage in trade union activities is unreasonably refused then the employee may make a complaint to a tribunal.

One further qualification of the right is in section 170(2) which identifies that the right does not extend to activities which are in fact industrial action, whether or not these are in contemplation or furtherance of a trade dispute.

24.5 Collective bargaining

Collective bargaining refers to the process whereby the officers of trade unions negotiate with employers for the furtherance of their members’ interests. The matters that can be the subject of these negotiations are identified in section 178(2) Trade Union and Labour Relations (Consolidation) Act 1992 and these are:

• ■ terms and conditions of employment, or the physical conditions in which any workers are required to work;
• ■ engagement or non-engagement, or termination or suspension of one or more of the employees;
• ■ allocation of work or of the duties of employment between workers or groups of workers;
• ■ disciplinary matters;
• ■ membership or non- membership of a trade union;
• ■ facilities for officials of trade unions;
• ■ 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.

Under Schedule A1 in fact the scope of collective bargaining is more restrictive but where there is an existing voluntary arrangement all of the matters identified in section 178(2) are covered whereas when statutory recognition is awarded under Part 1 of Schedule A1 then the matters covered by a collective agreement are limited to the core issues of pay, hours and holidays.

There is a requirement under section 181 Trade Union and Labour Relations (Consolidation) Act 1992 that on request from a representative of a recognised trade union the employer will disclose such information which is relevant to collective bargaining and without which the trade union representative would be prevented from bargaining effectively. However, the employer is entitled to withhold certain information:

• ■ information which if disclosed would be against the interests of national security;
• ■ information which if disclosed would involve breaking the law;
• ■ information which if disclosed would cause substantial damage to the employer’s business;
• ■ information which relates specifically to one employee;
• ■ information which the employer received in confidence;
• ■ information which was obtained by the employer for the purpose of bringing or defending legal proceedings.

Under sections 183–184 if the employer is not covered by one of these exceptions and fails to disclose the information that has been requested then the officers of the trade union can make a complaint to the Central Arbitration Committee. This can either deal with the complaint itself or pass it on to ACAS. If the complaint is well founded then a declaration is given which in effect gives the employer one week to disclose the information.

The significance of a regime of collective bargaining between employer and recognised trade union is that agreements reached during the process may be incorporated into the contract of employment of the employees either expressly or by implication (see Chapter 5.4).

24.6 Statutory protection during trade disputes

24.6.1 Tortious liability in trade disputes

The classic example of industrial action of course is the strike where workers absent themselves from work that they are contractually bound to do in furtherance of whatever dispute. Quite straightforwardly a strike is a breach of contract. There are also a variety of torts that have developed in relation to industrial action.

Inducing or procuring a breach of contract or otherwise interfering with a contract

This occurs where the trade union instructs its members to take action which would amount to a breach of contract. The tort was first developed in Lumley v Gye [1853] 2 E & B 216 where a theatre owner succeeded in his action against another theatre owner who had induced an opera singer to perform at his theatre in breach of her contract to perform at the claimant’s theatre.

However, the tort is wide enough in its scope to include an inducement to any breach of an employment contract.

To this could also be added that damages are nominal and there is no justification.

The above all involve direct inducements but it is also possible for inducements that are made indirectly to be actionable.

A similar approach was taken in Mainstream Properties Ltd v Young [2007] IRLR 608 where two employees of a property company, in breach of their contracts, diverted a development opportunity to a joint venture in which they were interested. The defendant, mistakenly thinking that they would not be in breach, provided finance which allowed the acquisition to occur. The property company then brought an action for wrongfully inducing a breach of contract. The House of Lords held that it could not be in the circumstances.

The tort also includes procuring the breach of a commercial contract.

The tort could also of course include any wrongful interference with a contract. In Time-plan Education Group v National Union of Teachers [1997] IRLR 457 a trade union was attempting to interfere with advertising for recruits by a teacher supply agency. The Court of Appeal identified the essential elements of a wrongful interference with a contract:

• ■ The third party persuaded or procured or induced a party to a contract to breach the contract.
• ■ The third party knew of the existence of the contract.
• ■ The third party intended to procure or to induce a breach of contract.
• ■ The claimant suffered more than nominal damage.
• ■ If the third party claimed that there was a justification for the actions the claimant was able to successfully rebut that justification.

Intimidation

The tort of intimidation involves the making of an unlawful threat to the claimant with the intention of causing a loss to the claimant. The tort was in fact little used before the case of Rookes v Barnard [1964] AC 1129 where the then House of Lords made it almost impossible to threaten strike action and effectively removed the statutory immunity gained in the Trade Disputes Act 1906 (see 24.6.2 below).

Intimidation could also result from action taken in furtherance or because of the unlawful threats.

Conspiracy

A conspiracy is where two or more people combine together to do an unlawful act or to do an act in an unlawful manner. In the context of trade union action this would mean combining to induce customers, clients, suppliers or employees of a company to breach their contracts with it.

The significant point about a conspiracy then is that the purpose of the combination is without justification. In other words it is not in furtherance of a legitimate trade dispute but is for the purpose of causing damage to the claimant.

However, if the combination is actually pursuing a purpose which is for the furtherance of a legitimate trade dispute then there is no actionable conspiracy.

Similarly in Scala Ballroom (Wolverhampton) Ltd v Ratcliffe [1958] 1 WLR 1057 the operation of a colour bar by the ballroom management led to the musicians’ union placing a boycott on the venue to its members. This was not an actionable conspiracy as it was for the furtherance of the members’ interests.

Economic duress

In contract law a doctrine of economic duress developed which usually occurs in a commercial context but has also been applied in the case of trade union activity.

There are inevitable arguments as to what amounts to legitimate industrial action and what goes beyond the law and amounts to economic duress allowing a party to avoid an agreement that they have made under pressure.

24.6.2 Immunity from legal action

Some protection against liability for collective action by the members of trade unions was originally provided by the Trade Union Act 1871 and then by the Conspiracy and Protection of Property Act 1875. Following many judicial decisions which appeared to disregard or remove this immunity from legal action the Trades Disputes Act 1906 was passed which effectively provided protection for certain trade union activity right up to the Industrial Relations Act 1971. This introduced a complete new legal framework for industrial relations. However, it failed ultimately because the trade unions would not cooperate and the government was unable to enforce it and this ultimately led to a change of government. The Trade Union and Labour Relations Acts of 1974 and 1976 returned the law to the previous position. Following a further change of government the Employment Act 1980, the Employment Act 1982, the Trade Union Act 1984, the Employment Act 1988 and the Employment Act 1990 all placed significant limitations on the immunity.

The law is now found in section 219 Trade Union and Labour Relations (Consolidation) Act 1992.

There are three issues arising from the section:

• ■ The meaning of ‘in contemplation of ’;
• ■ The meaning of ‘in furtherance of ’;
• ■ The meaning of ‘trade dispute’.

In contemplation of

This means that the act is done before the trade dispute. The trade dispute must actually therefore be imminent and is actually going to occur.

In furtherance of

The action must be in furtherance of the trade dispute. It must therefore be for the legitimate objectives of the trade union in relation to the particular dispute in question. If the action is for any other purpose then it is not ‘in furtherance of ’ a trade dispute and there will be no immunity from legal action.

Trade dispute

Trade dispute is defined in section 244 Trade Union and Labour Relations (Consolidation) Act 1992.

Worker is then defined in section 244(5) Trade Union and Labour Relations (Consolidation) Act 1992 as a person who is employed by the employer; or a person who is no longer employed by the employer if his employment was terminated in connection with the dispute or if the termination of his employment was one of the circumstances giving rise to the dispute.

The dispute must be between existing workers and their current employer within the definition in section 244(5). As a result there is no immunity under section 219 Trade Union and Labour Relations (Consolidation) Act 1992 if the dispute concerns the contracts of future employees.

So a dispute that relates wholly or mainly to terms or conditions of employment or any of the other factors in section 244 can be classed as a trade dispute and attracts the immunity of section 219.

However, by definition if the dispute is in reality with government policy and in fact has little if anything to do with terms and conditions of work then it will not be classed as a trade dispute for the purposes of immunity under section 219.

It follows that any dispute where the principal purpose is political in character is not wholly or mainly for the purpose of one of the factors identified in section 244 and therefore is not a trade dispute and will not gain the protection of section 219.

24.6.3 Loss of immunity

There are a number of situations in which any immunity gained by the trade union through the operation of section 219 Trade Union and Labour Relations (Consolidation) Act 1992 is lost:

• ■ where the law relating to the holding of secret ballots has not been followed;
• ■ where there is unlawful secondary action;
• ■ where there is pressure to impose union recognition, union membership or to retain a closed shop;
• ■ where the action is to persuade an employer to reinstate unofficial strikers who have been dismissed.

Secret ballots before industrial action

There was an unsuccessful attempt to introduce a requirement for ballots prior to industrial action in the Industrial Relations Act 1971. The view at the time was that strikes were often not the real wishes of the majority of trade union members and that the practice of voting by a show of hands at mass meetings was intimidating.

The requirement for ballots was first introduced in the Trade Union Act 1974. The rules are now in sections 226–234 Trade Union and Labour Relations (Consolidation) Act 1992 as amended. There is also now a Code of Practice on Industrial Action Ballots and Notice to Employers.

There is no legal requirement to hold a ballot but if official industrial action is taken without a ballot having been held then the union will lose its immunity under section 219 and the affected employer will be able to sue. Section 226 Trade Union and Labour Relations (Consolidation) Act 1992 (as amended by the Employment Relations Act 2004) identifies that a trade union that induces an employee to take part in industrial action will have no immunity under section 219 unless there has been a proper secret ballot. There is also a variety of other requirements.

Under section 226A(2) the union must take reasonable steps to notify the employer of the ballot. The notice must be in writing and must include:

• ■ that the union intends to hold a ballot calling for industrial action;
• ■ the date on which the union reasonably believes the ballot will take place;
• ■ a list of all the employees concerned – so this must include the categories of the employees to which the employees concerned belong, a list of the workplaces affected, the total number of employees, the number of employees at each workplace and an explanation of how the figures were arrived at.

A sample voting paper must also be sent to the employer at least three days before the ballot is to take place.

The union must also appoint an appropriate scrutineer before the ballot occurs. Appropriate person is defined in section 226(B) but is basically a person approved by the Secretary of State for the purpose, and includes bodies such as the Electoral Reform Service. The role of the scrutineer is to prepare a report on the ballot identifying whether it was satisfactory and offering a copy to the employer. The report must be made not later than four weeks after the ballot.

Under section 227(1) all of those members of the union whom it is reasonable for the union to believe at the time of the ballot will be induced to take part in the industrial action are entitled to vote but no others. The general rule in section 228(3) is that there should be a separate ballot for each workplace. However, there are exceptions in section 228A where the union wishes to call a ballot of a ‘genuine bargaining unit’ and the ballot is limited to all the members of the union who according to the union’s reasonable belief have an occupation of a particular kind or have any of a number of particular kinds of occupation, and are employed by a particular employer, or by any of a number of particular employers, with whom the union is in dispute.

A voting paper should be sent to the home address of each separate union member who is entitled to vote where it is reasonably practicable to do so. Under section 230(2) each member entitled to vote must also be given a reasonable opportunity to vote by post.

Under section 229(1) the voting paper must state the name of the independent scrutineer and clearly identify the address to which the voting paper is sent and by what date. The voting paper must ask one of two questions, or if the union wishes to have authority for both forms of action then both questions should be asked on the voting paper. The one question is whether the member wishes to take part in strike action and the other question is whether the member wishes to take part in industrial action short of strike action. The questions should also be phrased so that only the responses yes or no are possible. It must also identify who has authority to call industrial action in event of a yes vote. Finally, under section 229(4) it must also explain that taking industrial action is a breach of contract and the circumstances in which a dismissal for strike action will be unfair dismissal.

There are also strict rules governing the ballot itself. Voting should be secret and each person entitled to vote should be able to do so without interference from any trade union official. Votes should also be fairly counted.

As soon as is reasonably practicable after the ballot the union must inform both the members and the employer of the result.

The union will lose its immunity under section 219 if there was either no ballot or there was a ballot but it was not carried out according to all of the rules above.

Unlawful secondary action

Secondary action is defined in section 224(2) Trade Union and Labour Relations (Consolidation) Act 1992. It will occur when a person:

• ■ induces another to break a contract of employment; or
• ■ interferes or induces another to interfere with its performance; or
• ■ threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with; or
• ■ that he will induce another to break a contract of employment or to interfere with its performance;

and the employer under the contract of employment is not the employer party to the dispute.

In all cases secondary action is unlawful and so does not gain the protection of section 219 and can be an actionable tort leading to liability. At one time use of ‘flying pickets’ (ones who were not linked to the dispute but sympathised with it) gained some notoriety but also some success (for instance when members of the National Union of Mineworkers picketed Saltley Coke Depot in 1972 to prevent supplies of coal from being delivered). However, the courts were generally unsympathetic to such action even before statute outlawed the practice.

Pressure to impose union recognition, union membership or to retain a closed shop

Under section 222 Trade Union and Labour Relations (Consolidation) Act 1992 there is no immunity from civil action where industrial action is for the purpose of enforcing membership of a trade union or retaining a closed shop where employees must belong to a specific union.

Under section 225 Trade Union and Labour Relations (Consolidation) Act 1992 any potential immunity from civil action is lost where the industrial action is carried out in order to impose a recognition of a trade union for the purposes of negotiating on members behalf.

Action to persuade an employer to reinstate dismissed unofficial strikers

Where a person is engaged in unofficial industrial action a dismissal is fair since there is a clear breach of contract with no statutory immunity (see 24.8.2 below). In consequence section 223 Trade Union and Labour Relations (Consolidation) Act 1992 removes statutory immunity available under section 219 where industrial action is taken in support of an employee or employees who have been dismissed for unofficial industrial action.

Picketing

As well as the torts identified above there are a variety of other torts that could be involved where union members during an industrial dispute engage in the process of picketing. Picketing generally involves members of the union standing outside the employer’s premises protesting and trying to persuade other employees to take part in the action or to show sympathy or possibly even suppliers to refuse to supply or customers to take their business elsewhere. Other torts arising out of this activity then could include trespass to the employer’s land and private or public nuisance.

There is no immunity from liability for picketing except in the limited conditions identified in section 220 Trade Union and Labour Relations (Consolidation) Act 1992 which identifies that picketing may be lawful if the union member in contemplation or furtherance of a trade dispute attends at or near his own place of work or, if he is an official of a trade union, at or near the place of work of a member of that union whom he is accompanying and whom he represents. In all other circumstances picketing is unlawful.

24.7 Discipline short of dismissal

An employee who is also a member of a trade union has a right not to suffer a detriment which falls short of dismissal because of his membership of a trade union or because of involvement in trade union activities. The right is in section 146 Trade Union and Labour Relations (Consolidation) Act 1992 as amended.

So section 146 covers being subjected to a detriment because of:

• ■ membership or non-membership of a trade union;
• ■ taking part in trade union activities;
• ■ taking advantage of trade union services.

The section refers also to the fact that the employee must suffer the detriment as an individual so it is important to know what individual means in the context of the section. Inevitably it affects trade union officials adversely.

The claimant must also show that the reason for the action taken against him was to prevent or deter him from taking part in union activities or to penalise him for doing so, which in effect means that the action is denying the employee his statutory rights.

The issue was later appealed in joined appeals to the European Court of Human Rights in Wilson, National Union of Journalists and Others v the United Kingdom [2002] IRLR 568 ECHR where the European Court of Human Rights held that the employer’s conduct amounted to disincentive to employees exercising their legitimate trade union rights and was even a restraint.

The test is in fact a difficult one for a trade union official to prove because he must show the purpose of the employer’s actions as well as the effect.

It will of course also depend on the nature of the action taken by the employer which is detrimental to the employee. In Carlson v The Post Office [1981] IRLR 158 the deliberate failure to act was not providing a car parking permit to an employee who belonged to a trade union with small membership because allocation of parking spaces was determined in an agreement between the employer and the recognised trade union.

The section also identifies that the employer should not subject the employee to a detriment where the trade union activities or using trade union services are being carried out at an appropriate time. In this respect it is important to know what an appropriate time is.

It is of course possible that work time could be an appropriate time but only where there is agreement with the employer that this should be so. In Brennan & Ging v Ellward (Lancs) Ltd [1974] IRLR 153 employees wished to consult their shop steward but this involved going off site during works time. They were warned that they would be dismissed if they did so and it was held that without the agreement of the employer during work time is not an appropriate time.

Now under section 12 Employment Relations Act 1999 an employee has the right not to suffer any detriment for instance any disciplinary measure where the employee is exercising his right under section 10 Employment Relations Act 1999 either to be accompanied at hearing by an appropriate trade union official or work colleague or as an appropriate union representative or work colleague accompanying another employee.

24.8 Dismissal

24.8.1 Trade union related dismissal

Trade union related dismissals are governed by section 152 Trade Union and Labour Relations (Consolidation) Act 1992. Under this it will be unfair to dismiss an employee where the principal reason for the dismissal is either:

• ■ the employee was a member or proposed to become a member of a trade union;
• ■ the employee had taken part or proposed to take part in the activities of a trade union or to take advantage of the services offered by the trade union at an appropriate time (what is an appropriate time is out of working hours or within working hours but with the express or implied consent of the employer);
• ■ the employee was not a member of a trade union or refused to become a member of a trade union;
• the employee failed to accept an offer in contravention of section 145A or 145B Trade Union and Labour Relations (Consolidation) Act 1992 (in relation to giving up trade union rights).

A dismissal for any of these reasons will be automatically unfair see (Chapter 22.3). However, if it is for taking part in legitimate union activities then the activity would have to be legitimate in fact and be carried out at an appropriate time.

On this basis the only times that are appropriate in respect of trade union activities are either the employee’s own time or in work time only where there is express or implied agreement with the employer.

An interesting question on what is an appropriate time arose in the case of Zucker v Astrid Jewels Ltd [1978] ICR 1088 EAT where the employee tried to persuade colleagues to join the trade union at all opportunities. The tribunal held that she was not carrying out trade union activities at an appropriate time. However, the EAT held that the employer was not in a position to dictate the topics of conversation while employees worked and so the specific activity was at an appropriate time.

The section of course also covers those situations where an employee has been dismissed when his employer has discovered that he engaged in trade union activities while working for a former employer.

A dismissal for taking advantage of trade union services will also be an unfair dismissal if that is the sole reason or the principal reason for the dismissal.

Under section 153 Trade Union and Labour Relations (Consolidation) Act 1992 it is also an unfair dismissal to select an employee for redundancy where the main reason for the selection is because of his membership or non-membership, his trade union activities or one of the other elements of section 152. Section 153 also identifies that the circumstances constituting the redundancy must have applied equally to other employees in positions similar to the claimant but who have not been selected for redundancy.

24.8.2 Dismissal for taking part in industrial action

The rules on dismissal for taking part in industrial action are relatively complex since there are a number of possible situations:

• ■ where a dismissal follows a lock- out by the employer;
• ■ where there is a dismissal following an unofficial strike by trade union members and non-trade unionists;
• ■ where there is a dismissal following a strike of employees none of whom are members of a trade union – this will always be an unofficial strike;
• ■ where there is a dismissal following strike action which is not protected under section 219 Trade Union and Labour Relations (Consolidation) Act 1992 because either there has been no ballot held to approve industrial action or there has been secondary action taken;
• ■ protected official action which is fully covered by the immunity in section 219.

Lock-out by the employer

In the case of lock-out by an employer this is regulated by section 238(1)(a) Trade Union and Labour Relations (Consolidation) Act 1992. A lock-out is a situation where the employer is suspending work, refusing to allow his employees to work generally in order to make the employees accept conditions of work that they otherwise would not be prepared to.

Any lock-out amounts to a breach of contract by the employer. If an employee is dismissed because of the lock-out the tribunal has to assess that an employee has been dismissed because of the lock- out, that some were re-engaged by the employer within three months but not the claimant and that the claimant had an interest in the dispute. If these are shown then the dismissal will be unfair.

Unofficial strike involving union members and non-members

Where there is an unofficial strike which involves both members of trade unions and non-members then there is no fundamental right to claim unfair dismissal since the action is fundamentally a breach of contract.

This is covered by section 237 Trade Union and Labour Relations (Consolidation) Act 1992 and a strike is unofficial unless the striking employee:

• ■ is a member of a trade union and the strike was authorised by the trade union to which he belongs; or
• ■ he is not a member of the trade union but other employees taking part in the strike are members of the union which authorised the strike.

Problems can arise of course where the employer tries to resolve the issue by dismissing all employees but there are in fact employees who have not taken part in the industrial action.

Unofficial action by non-unionists

In situations where none of the employees taking part in a strike or other industrial action are members of a trade union then the situation cannot be described as either official or unofficial action because there is no trade union involved so it can merely be described as industrial action.

Dismissals in such circumstances are generally fair unless they fall under section 238 Trade Union and Labour Relations (Consolidation) Act 1992 where:

• ■ some of the employees are not dismissed but the claimant is not one of these;
• ■ some of the employees are dismissed but are re-engaged within three months of the industrial dispute and the claimant is not one of these.

If either of these apply then the dismissals are unfair. However, if the employer dismisses all of the strikers or re-engages some but only after three months have passed, then an employee who has been dismissed in such circumstances will have no claim to unfair dismissal. The important date is the date of the dismissal.

The employer is free to re-engage employees who were dismissed for being on strike after three months. However, the employer loses the protection of section 238 if he dismisses employees before any industrial action is in fact taken.

Similarly there will be no protection from section 238 for an employer who dismisses employees who have returned to work after the strike in an act of retribution.

Where an employee has been legitimately dismissed under section 238 for taking part in industrial action then he is not entitled to a redundancy payment when it is later identified that a redundancy situation exists.

Unprotected official action

This covers situations where a union has called its members out on strike in contemplation or furtherance of a trade dispute but has lost the protection of section 219 Trade Union and Labour Relations (Consolidation) Act 1992. The dismissals of employees in these circumstances would not then be unlawful.

This is commonly because the balloting requirements under sections 226–234 Trade Union and Labour Relations (Consolidation) Act 1992 were not complied with or the appropriate notice was not given to the employer as required by section 234A. However, it could be because secondary action was taken contrary to section 224 or the strike was called in order to impose trade union recognition on the employer contrary to section 225, or to enforce trade union membership contrary to section 222. It could also result from action over the dismissal of an unofficial striker contrary to section 223.

Protected official action

Protected industrial action is that action which attracts the immunity for the trade union found in section 219 Trade Union and Labour Relations (Consolidation) Act 1992. In the case of employees engaged in protected industrial action they have protection under section 238A and any dismissal will be automatically unfair if the date of the dismissal is:

• ■ within the protected period – this is twelve weeks beginning with the first day of protected industrial action – and any extension if there is an employer lock-out; or
• ■ after the protected period is over and the employee has ceased to take part in the industrial action before the end of that period; or
• ■ after the protected period is over but the employer has failed to take reasonable procedural steps necessary to end the dispute such as resuming negotiations or using a conciliator.

Section 238A(6) identifies the reasonable steps that the employer should take:

• ■ whether the employer or a union had complied with procedures established by any applicable collective or other agreement;
• ■ whether the employer or a union offered or agreed to commence or resume negotiations after the start of the protected industrial action;
• ■ whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that conciliation services be used;
• ■ whether the employer or a union unreasonably refused, after the start of the protected industrial action, a request that mediation services be used in relation to procedures to be adopted for the purposes of resolving the dispute.

24.8.3 Dismissal because of industrial pressure

There are also times when an employer might be forced to dismiss an employee not because of anything wrong with the employee but because the employer has been subjected to unfair pressure by other employees, most commonly where there is a threat of industrial action of some kind. This is now covered by section 107 Employment Rights Act 1996 which in effect means that such a dismissal could be unfair.

The section identifies that in determining whether the employer acted reasonably in dismissing the employee no account will be taken of any pressure placed on the employer through strike or other industrial action or the threat of it.

In circumstances where the dismissal following unfair pressure results from the claimant not being a member of the trade union then the trade union can be joined as a party to the proceedings and an award of compensation can be made against it rather than the employer.