Industrial action 4: civil remedies

There is no requirement that the action, or proposed action, is otherwise unlawful at common law (for example, it might involve no inducement to break employment contracts). The member's right to a ballot is thus absolute.

If a court is satisfied that a claim under s.62 is well founded, it must make "such order as it considers appropriate" for requiring the union to take steps to ensure that:

(a)there is no, or no further, inducement of members of the union to take part or continue to take part in the industrial action to which the application relates; and

(b)that no member engages in conduct after the making of the order by virtue of having been induced to take part, or continue to take part, in the action before the court order was made.

The court may also grant such interlocutory (interim) orders (including injunctions) as it considers appropriate. A union member can apply to the Commissioner for the Rights of Trade Union Members for advice and assistance in bringing a complaint under s.62.

The citizen

In its Green Paper Industrial relations in the 1990s², the Government said that it believed that where unlawful industrial action deprived a citizen of a public service within the scope of the citizen's charter, or reduced the service provided, "the citizen should be able to seek the protection of the law". This would apply particularly where legal proceedings to restrain action had not been taken, or had not been taken quickly enough, by parties (including employers) whose legal rights had been infringed.

The result of the Government's thinking is contained in s.235A of the TULR(C)A. This provision gives "an individual" the right to apply to the High Court (or Court of Session in Scotland) for an order claiming that:

An act is deemed to be unlawful for these purposes if it is actionable in tort by one or more persons (for example, employers and/or commercial contractors), or (where the act is or would be the act of a trade union) if it could be the basis of an application by a union member under s.62 of the TULR(C)A (s.235A(2), and see above). The individual who takes action under s.235A consequently sues "on the back" of some other party's potential legal claim, and it is immaterial whether or not the individual has any entitlement to be supplied with the goods or services in question (s.235A(3)).

There is thus no need for the individual to point to any legal or contractual right to receive or enjoy those goods and services. It would, for example, appear to be sufficient if they have a reasonable expectation that goods or services will be provided, or if they regularly or habitually use services which are, or are likely to be, disrupted as a result of allegedly unlawful action.

If a court is satisfied that a claim under s.235A is well founded, it must make "such order as it considers appropriate" for requiring that the alleged, or prospective, inducer of action takes steps to ensure that:

The court may also grant such interlocutory (interim) orders (including injunctions) as it considers appropriate (s.235(A)). An individual who wishes to bring proceedings under s.235A may be able to obtain the assistance of the Commissioner for Protection Against Unlawful Industrial Action (see the box above).

Civil law remedies

Depending on the nature of a particular plaintiff's substantive claim or complaint, a number of remedies may be available in legal proceedings. In industrial disputes, these include primarily applications for interlocutory injunctions and actions for damages. We examine these matters below, together with the important penal and enforcement mechanism provided by the law of contempt of court.

Injunctions

The remedy most commonly sought by plaintiffs in industrial disputes is the "interlocutory" (that is, temporary) injunction (or, in Scotland, the "interim interdict"). If awarded, such an injunction will in theory have the effect of prohibiting allegedly unlawful industrial action, or preventing the continuance of such action, pending the full trial of the legal action. For reasons which the courts have acknowledged, however, most cases involving industrial disputes will not proceed beyond the interlocutory stage, and will effectively be disposed of at that point (see below).

Application for interlocutory injunctions

In England and Wales, applications for interlocutory injunctions are generally made either to the Chancery or Queen's Bench Divisions of the High Court. In the former case, application is made by way of motion in open court, while an application in the Queen's Bench Division is made by way of summons to a judge in chambers (although the judge has a residual discretion to adjourn an application and direct that it be heard in open court, if he or she considers that it should be so heard "because of its importance or for any other reason" - see Rules of the Supreme Court (the RSC), Order 32, rule 13). Applications for interlocutory injunctions are made under Order 29, rule 1 of the RSC.

In either case, applicants must normally give the defendant two working days' notice of their application. Evidence in such cases is given in the form of written affadavits (that is, sworn written statements). In cases of extreme urgency, however, applications may be made "ex parte" (that is, without the defendant being present) without notice, and based on oral or other evidence which must be confirmed by affadavit (see further below).

Injunctions may also be sought in the county court, if they are ancillary to a substantive claim for damages or other relief within its jurisdiction (see s.38 of the County Courts Act 1984). In practice, very few cases relating to industrial disputes will be commenced in this way.

Nature and scope of orders

We give examples of interlocutory injunctions drawn from the case law below. The following points should be noted:

The American Cyanamid test

When considering whether to grant an interlocutory injunction, the courts are guided primarily by the House of Lords' decision in American Cyanamid Co v Ethicon Ltd. This requires a two-stage analysis.

For example, in Metropolitan Borough of Solihull v National Union of Teachers, Mr Justice Warner said that it was not possible for the question of whether certain tasks habitually undertaken by teachers - such as lunch-time supervision and attendance at meetings outside of school hours - were purely voluntary or were contractual obligations to be determined on conflicting affadavit evidence. That issue could, he said, only be resolved at a full hearing, with oral evidence, cross-examination of witnesses, and following discovery of documents. There was consequently a serious issue to be tried as to whether the union had - in the absence of a ballot - sought to induce teachers to break those alleged obligations.

More recently, in Post Office v Union of Communication Workers (No.1), a deputy High Court judge (Mr Englehart) similarly accepted that there was a serious issue as to whether certain job duty sheets were incorporated into employees' contracts of employment, and whether union "advice" (or, as the union put it, the provision of "helpful information") to members on the interpretation of those duty sheets amounted to an inducement to breach of contract. An application for an interlocutory injunction was not, the judge said, the time for the court to resolve "what precisely is or is not part of the employees' contracts of employment".

In this context, the robust approach adopted by Mr Justice Millett in Associated British Ports v Transport and General Workers' Union is perhaps unusual. He held that the employer's prospects of success in establishing that any tort of inducing a breach of statutory duty by registered dockworkers (or any broader tort of interfering with trade or business by such unlawful means) had been committed were "remote", and refused to grant an injunction either until the date of the trial or until the abolition of the National Dock Labour Scheme took effect. The House of Lords agreed. Indeed, it said that the case fell at an earlier stage - the employer had failed to establish the existence of any serious issue as to whether registered dockers were under any statutory, as opposed to contractual, duties.

In general, however, unless the material available to the court at the hearing of the application fails to disclose that the applicant has any real chance of succeeding, the court will go on to consider whether the "balance of convenience" lies in favour of granting or refusing the injunction sought (American Cyanamid).

According to American Cyanamid, the essential question for the court is whether, if the plaintiff or applicant were to succeed at the full trial of the action in establishing his or her right to a permanent injunction, he or she would be adequately compensated in damages for the loss sustained as a result of the defendant's "continuing to do what was sought to be enjoined between the time of the [interlocutory] application and the trial". If damages would be an adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, "however strong the plaintiff's claim appeared to be at that stage".

If, on the other hand, damages would not be an adequate remedy for the plaintiff, the court should then consider the contrary hypothesis. It should thus ask whether, if the defendant were to succeed at trial, he or she would be adequately compensated by the plaintiff's cross-undertaking in damages - such an undertaking is required whenever an interlocutory injunction is granted - for the loss sustained if he or she were to be prevented from doing the act which was sought to be enjoined between the time of the application and the time of the trial. In this case, if damages would be an adequate remedy, and the plaintiff would be in a financial position to pay them, there would be no reason on this ground to refuse an injunction.

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both, that determining the balance of convenience becomes problematic. A range of factors may be relevant to the court's assessment, but where those factors are evenly balanced "it is a counsel of prudence to take such measures as are calculated to preserve the status quo".

Balance favours employers

Applying the unbridled principles of American Cyanamid in industrial disputes, there is little doubt about where the courts feel the balance of convenience would normally lie: "In the normal case of threatened industrial action against an employer, the damage that he will sustain if the action is carried out is likely to be large, difficult to assess in money and may well be irreparable. Furthermore, damage is likely to be caused to customers of the employer's business who are not parties to the action, and to the public at large ... on the face of the proceedings in an action of this kind the balance of convenience would appear to be heavily weighted in favour of the employer." (per Lord Diplock in NWL Ltd v Laughton and Woods). The fact that there is a maximum limit on the damages that may be awarded against a trade union in tort, will also influence a court in the employer's (or other applicant's) favour if it appears that any damages would be likely to exceed the maximum available (see, for example, Mercury Communications Ltd v Scott-Garner and the Post Office Engineering Union).

Even where material or financial damage may be difficult to quantify - in certain public services, for example - the courts seem likely to assume significant damage or detriment will be suffered by the employer. For example, in the Metropolitan Borough of Solihull case, the court felt it was "perfectly obvious" that damages would not be an adequate remedy for the education authority. The detriment to the authority lay, said Warner J, "in the harm done to the children in these schools and to their education ... The damage suffered by the plaintiff arising from the fact that it is being prevented from supplying its usual education service is serious and continuing."

In contrast, the loss, detriment or "harm" which may be suffered by trade unions and organisers of industrial action if injunctions are granted is often given little credence. Thus, in the Solihull case, Warner J stated that the harm to the union was "no more" than choosing between accepting arbitration of the dispute and holding a ballot. And the costs of any ballot would be recoverable under the education authority's cross-undertaking in damages. Similarly, in Post Office v UCW (No.1), it was said that all that would happen if the interlocutory injunction were granted, and the union was subsequently proved to be proposing lawful action, was that the "industrial disagreement or dispute ... will simply be deferred by a period of some two months or so".

Special "trade dispute" provision

It was in recognition of these fundamental problems that (what is now) s.221(2) of the TULR(C)A was originally passed. It states that, in exercising its discretion as to whether or not to grant an interlocutory injunction, and the party against whom it is sought claims that he or she acted in contemplation of a trade dispute, the court is required to "have regard" to the likelihood of the defendant establishing a defence under ss.219 (the "golden formula") or 220 (lawful picketing) of the TULR(C)A (s.221(2)). This provision does not extend to Scotland, where a higher standard of evidence is required to support an application for an interim interdict.

In NWL Ltd v Laughton and Woods, the House of Lords said that s.221(2) meant that courts should put into the balance of convenience in favour of the defendant certain "countervailing practical realities and, in particular, that the grant of an interlocutory injunction is tantamount to giving final judgment against the defendant". Lord Diplock recognised that "it is the nature of industrial action that it can be promoted effectively only so long as it is possible to strike while the iron is still hot; once postponed, it is unlikely that it can be revived ... the grant of an interlocutory injunction generally disposes finally of the action; in practice, actions of this type seldom if ever come to actual trial." And, in the words of Lord Scarman, if the courts failed to have regard to the likelihood of a defendant establishing a trade dispute defence, "the trade union's bargaining counter would disappear. Its power to bring instant and real pressure upon the employer would be denied."

It follows that, in principle, the greater the degree of likelihood that a defendant will establish a trade dispute defence, beyond it being merely slightly more probable than not, the less willing a court should be to grant an injunction at the interlocutory stage (see the NWL case). However, the courts will retain a residual discretion to grant such an injunction - even if there is a high degree of probability that a defendant could establish a defence - where the consequences to the employer, third parties, or the public and perhaps the nation itself might be "disastrous", or where the action sought to be enjoined endangered a fundamental right of the public such as the freedom of the press (see Lord Scarman in Duport Steels Ltd v Sirs and others).

The new realities?

The significance of s.221(2) has nevertheless been much diminished in importance since decisions such as those in the NWL case. This is largely a result of the Government's narrowing of the "golden formula" trade dispute defence, and the increasing complexity of the resulting legislation (see part three of this series). The tortuous provisions governing industrial action ballots, for example, provide fertile grounds for challenge, and lower the odds on trade unions being able to convince a court they are likely to establish any immunity.

On the other hand, it appears that some of the factors identified in the NWL case are of less importance in this changed legislative climate. Lord Diplock revisited his judgment in NWL in Dimblebly & Sons Ltd v National Union of Journalists, and concluded that, since trade unions could now be sued for damages, "there is no reason for a judge to exercise his discretion on the assumption that the case will never proceed to trial and final judgment where the defendant is a trade union itself and not a mere individual office-holder". Thus, it should no longer be assumed that an employer (or others) would suffer irrecoverable damage if an injunction were to be refused.

This should perhaps militate against the grant of interlocutory injunctions, especially since the converse proposition remains true - the grant of an injunction will still generally deprive the union or other organisers of action of the ability to "strike while the iron is still hot". There has, as we have already illustrated, been limited judicial interest in such arguments in recent times, and the reasoning is undermined in the view of most courts by the existence of the statutory upper limits on damages obtainable in proceedings against unions.

Ex-parte injunctions

As we have already observed, in cases of real urgency, it is possible to obtain an ex parte injunction without giving the defendant notice of the application, and before the writ commencing formal proceedings has been issued. Such injunctions may even be granted over the telephone (see, for example, Barretts & Baird (Wholesale) Ltd v Institution of Professional Civil Servants). They are granted only for short periods, which will normally be until the earliest day on which the defendant can be given notice of the application.

This can cause obvious problems for organisers of industrial action, who will consequently be unable to put their case or argue that they would be likely to establish a trade dispute defence. Section 221(1) of the TULR(C)A accordingly provides that where an application is made for an ex parte injunction or interdict against a party, and he or she claims, or the court is of the opinion that he or she would be likely to claim, that he or she acted "in contemplation or furtherance of a trade dispute", the court shall not grant the injunction or interdict unless it is satisfied that "all steps which in the circumstances were reasonable" have been taken to ensure that the defendant has been notified of the application and given an opportunity to be heard.

Notwithstanding the need for expedition, the granting of any injunction is a serious matter, and "the purpose of [s.221(1)] is precisely to prevent hasty and ex parte applications being granted without the [defendant] being heard". A defendant does not, under this provision, have to show that a trade dispute defence would be likely to succeed - "the operation of [s.221(1)] does not depend on whether there is in fact a trade dispute" (Gouriet v Union of Post Office Workers and others).

In United Biscuits (UK) Ltd v Fall, for example, the judge to whom the original ex parte application was made applied s.221(1), and adjourned the case until the main writ and affadavit had been served on the defendant. As a case involving the organisation of allegedly unlawful picketing, the judge felt it was clear that notice of the application had to be given before any question of an injunction could be considered. It must be assumed that s.221(1) requires the applicant to take all reasonable steps in the circumstances to give the defendant actual notice of the application. This might include communications by fax or telephone to a defendant's office or home.

Appeals against injunctions

A party can appeal as of right against the grant or refusal of an interlocutory injunction (that is, they do not have to seek the leave of the court to appeal).

In Hadmor Productions Ltd and others v Hamilton and another, the House of Lords stated that an interlocutory injunction is a discretionary relief and the discretion whether or not to grant it is vested in the High Court judge who hears the application. On an appeal from that judge's decision, the function of an appellate court (be it the Court of Appeal or the House of Lords) "is not to exercise an independent discretion of its own. It must defer to the judge's exercise of discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently. The function of the appellate court is initially one of review only."

Lord Diplock accordingly specified the grounds on which an appellate court may interfere with the original decision to grant or refuse an interlocutory injunction:

In Union Traffic Ltd v Transport and General Workers' Union and others, for example, the Court of Appeal found that the original judge had refused an injunction on the basis that he had no jurisdiction to grant a quia timet injunction (see above) to prevent the defendants from inducing the breach of future (commercial) contracts, as distinct from existing contracts. This meant, said Lord Justice Lloyd, that the Court was justified in exercising its own independent discretion because the judge had exercised his discretion "on a misunderstanding of the law".

Contempt proceedings

Any failure to comply with the terms of an injunction (or any other court order) is likely to constitute a "civil" contempt of court. A finding of contempt is not limited to a wilful or direct intention to disobey the court's order, but extends to an intention to do the act which constitutes disobedience with knowledge of the terms of the order, although not necessarily an understanding that the act is prohibited (Re Supply of Ready Mixed Concrete (No.1)). This in effect means that only purely casual, accidental or unintentional disobedience of court orders might be excused (Re Supply of Ready Mixed Concrete (No.2)).

Proceedings for a civil contempt must generally be instituted by the plaintiff (or plaintiffs) who obtained the injunction, although in exceptional cases the court may act of its own motion. The fundamental purpose of contempt proceedings is to uphold the supremacy of the rule of law and the court's authority to administer it. The fact that the proceedings may effectively provide the plaintiff with an enforcement remedy is incidental. They are primarily punitive proceedings, and, as such, it must be shown that the defendant has breached the original court order - with the requisite intention - "beyond all reasonable doubt".

Effect of injunctions

Injunctive orders must always be construed precisely and, in case of doubt, restrictively. Such orders can take effect in three ways:

Breach of orders

In Howitt Transport Ltd and Howitt Brothers Ltd v Transport and General Workers' Union, the National Industrial Relations Court observed that "non-compliance with a court order can have a wide range of qualities. It may, at the top end of the scale, consist of a flat defiance of the court's authority. Going down the scale, it may not amount to flat defiance but rather to passive ignoring of the court's order. Going down the scale still further, it may amount to a half-hearted or, perhaps colourable attempt to comply with the court's order. At the bottom end of the scale, there may have been a genuine, whole-hearted use of the best endeavours to comply with the order, which nevertheless has been unsuccessful. In each case there is a breach of the court's order. In each case ... there is a contempt of court."

In Richard Read and another v National Union of Mineworkers (South Wales Area), the injunction granted was the one which we have given as example (1) in the box. The High Court found that union officials involved in the organisation of mass picketing outside the Port Talbot steelworks had been guilty of numerous breaches of the orders. These breaches had resulted in serious interference with and disruption of the trade and business of both the plaintiff companies, and serious intimidation of their drivers. On the evidence, the officials had appeared to be completely indifferent to the consequences of the pickets' violent behaviour, although one of the officials admitted to a fear that "someone was going to be killed".

The contempt identified in Express & Star Ltd v NGA (1982), on the other hand, was perhaps less clear-cut. Following the grant of the interlocutory injunction in this case (see example (2) in the box), the union's general secretary sent a circular to all union branches withdrawing all earlier instructions on "blacking" the plaintiff. The Court of Appeal nevertheless concluded that there was clearly evidence from which it could be inferred that the union was going through the "pantomime" of putting down on paper resolutions which complied with the law and, at the same time, through a National Council member and two regional officers, encouraging their members to take unlawful action. In Lord Justice Lawton's view, "if ever there was a wilful contumacious disobedience of a court order, this is it."

The orders of any court must be complied with strictly in accordance with their terms. It is not therefore sufficient, in answer to an allegation that an order has been breached, for the person concerned to say he or she did his or her "best" (unless, of course that is all the court's order requires - see Howitt v TGWU). Similarly, it is irrelevant that the reason for non-compliance may be the defendant's belief that there was nothing for him or her to do under the order, or that he or she believed on reasonable grounds that the order ought not to have been made. Where an order has a mandatory element, it will be "highly dangerous" for a defendant to "sit back and do absolutely nothing" because, by definition, the court has been satisfied by evidence that there is something he or she can do (see Austin Rover Group v Amalgamated Union of Engineering Workers).

Note: The statutory provisions contained in s.20(2)-(4) of the TULR(C)A apply to determine a union's responsibility for its officials and members in contempt proceedings against the union in respect of one of the "economic" or "industrial" torts, "as they apply in relation to the original proceedings" (s.20(6) of the TULR(C)A). In relation to other torts, the common law principles of union responsibility will apply (see part three of this series).

Sanctions for non-compliance

Given that the "quality" of contempt or non-compliance varies over an enormous range, "the penalties which will be imposed ... for contempt will equally vary over an enormous range and will reflect the quality of the non-compliance. They will, in fact, reflect faithfully the court's view of the seriousness of the conduct of the person to whom the order was addressed." (Howitt v TGWU). The courts have an impressive array of weapons at their disposal with which to penalise defendants who breach court orders, and to compel compliance. Those weapons include the following.

Any fine will reflect the court's view of the seriousness of the defendant's breach or failure. In the Richard Read case, the court had regard to "the manner in which ... [the] union has deliberately defied the court orders", and imposed fines totalling £50,000. In contrast, Mr Justice Drake recently imposed a fine of only £7,500 on the Union of Communication Workers in respect of "wildcat" unballoted strike action for which the union was statutorily responsible (Post Office v Union of Communication Workers (No.2)). In so doing, he took into account the facts that senior union officers had exhorted members not to take action, and that the action was against their wishes and instructions; that the action was in breach of national union policy; and also that the union had apologised to the court and that it was the first time that this union had been involved in contempt proceedings.

There is no statutory limit on the possible fines for contempt, and no union property is exempt in respect of the execution of such fines.

Under a sequestration order, the court appoints up to four commissioners who are charged with the task of sequestering all or part of the defendant's real and/or personal property. The sequestration will last until the defendant is released from his or her contempt (that is, when he or she has "purged" his or her contempt). This normally requires that fines have been paid (whether by the defendant or some other party); compliance with existing orders; an apology to the court; and, on occasion, undertakings as to future conduct and compliance with any future court orders - see, again, Clarke v Heathfield (No.2). Third parties (for example, union auditors) are under a duty not knowingly to take any action that would obstruct the sequestrators in the execution of their duty (Messenger Newspapers Group Ltd v National Graphical Association (1982) (No.2)).

Once released from his or her contempt, the assets sequestrated will be returned to the defendant, less any fines and the costs of the sequestration.

Damages

As we have already noted, it is relatively unusual for actions involving industrial action to proceed to a full trial, and therefore for damages to be sought or awarded. The reported decision of the Post Office to seek some £510,000 in compensation from the Communication Workers' Union in respect of four recent disputes is thus the exception rather than the rule.

Statutory limits

Where damages are pursued, however, there are variable limits on any "award by way of damages" that may be made in any proceedings in tort brought against a trade union (s.22 of the TULR(C)A). These limits are defined by the size of the union concerned, and are as follows:

It would seem that "any proceedings in tort" refers to proceedings arising out of a particular dispute (or set of facts) brought by any one identifiable plaintiff. The upper limit therefore applies irrespective of the number of heads of claim alleged in those proceedings (a plaintiff may, for example, claim that a number of torts have been committed by the organisers of action, or by those for whom the union is responsible). However, there may well be several plaintiffs in any given dispute (for example, employers and/or customers and suppliers). In such cases, the statutory maxima do not limit the total liability of a union.

Specified exceptions

The s.22 limits on damages in tort do not in any event apply to proceedings:

Interest

Furthermore, the statutory limits do not apply to awards of interest made in the High Court on damages under s.35A of the Supreme Court Act 1981 (the SCA). An award of interest under that provision is not regarded as an award of damages, since the interest is said to be payable "on" damages, not "by way of" damages - as is required under s.22(2) of TULR(C)A (see Boxfoldia Ltd v National Graphical Association (1982)). In the Boxfoldia case itself, for example, the union was therefore ordered to pay damages of £250,000 (as it had over 100,000 members) and £90,000 in interest on that award. (Interest under s.35A of the SCA is normally calculated for the whole or part of the period between the date on which a cause of action arose and the date of the court's judgment.)

This interpretation of s.22 of the TULR(C)A also means that the upper limits do not apply to fines which may be imposed for contempt of court (see p.8 above), or any costs awarded against a union.

Protected property

By virtue of s.23 of the Act, however, certain union and personal property is deemed to be "protected" in any legal proceedings where "an amount is awarded by way of damages, costs or expenses" against:

In such cases, no part of the amount awarded is recoverable by enforcement against the following "protected property":

These types of property are protected in respect of awards of damages, expenses or costs in all legal proceedings, not just proceedings in tort. The provisions of s.23 do not, however, protect such property in relation to fines levied for contempt of court.

Remedy for economic duress

Finally, an action based upon the law of restitution may be available in certain circumstances. This is not an action in tort, so none of the limits on awards or payments set out above apply. The action takes the form of a claim to set aside contracts or agreements, and recover money paid over as a result of the application of "illegitimate economic pressure". In the context of industrial disputes, the boundaries of legitimate pressure are essentially drawn by the legislation governing the trade dispute immunities (see part three of this series).

Illegitimate "economic duress" was the basis upon which shipowners were able to recover certain moneys which they had paid over to the International Transport Workers' Federation, following the "blacking" of their vessels, in both Universe Tankship of Monrovia v International Transport Workers' Federation and others and Dimskal Shipping Co SA v International Transport Workers' Federation.

Remedies in industrial action cases: main points to note

The Commissioner for Protection Against Unlawful Industrial Action

An individual who is an actual or prospective party to proceedings under s.235A of the TULR(C)A can apply for assistance from the Commissioner for Protection Against Unlawful Industrial Action (s.235B). Assistance will only be available, however, in respect of "an act of a trade union". The Commissioner must, as soon as reasonably practicable after receiving the application, consider it and decide whether and to what extent to grant it.

In determining whether to grant assistance, the Commissioner may have regard to :

If assistance is granted, it can include the making of arrangements for, or meeting the cost of, legal advice and representation. The Commissioner will not be a party to the proceedings, but his or her name may appear in the title of the proceedings.

Interlocutory injunctions - some examples

(1) From Richard Read (Transport) Ltd and another v National Union of Mineworkers (South Wales Area):

"It is ordered and directed that the defendant by its agents or servants or otherwise be restrained and an injunction is hereby granted restraining it from continuing to instruct or otherwise encouraging its members from stopping, approaching or in any other way interfering with the free passage of the plaintiffs' vehicles into or out of the Port Talbot Works of the British Steel Corporation or abusing or threatening the drivers thereof.

And it is further ordered and directed that the defendant by its agents or servants or otherwise be required and an injunction is hereby granted requiring the defendant to withdraw any such instruction or encouragement already given until after the trial of the action or until further order."

(2) From Express & Star Ltd v NGA (1982) - an order was made in the following terms:

"1. Restraining the defendants by themselves, their servants or agents from procuring, inducing or persuading any members of the NGA (1982) to act in breach of their respective contracts of employment:

(a) with the plaintiffs or any of them, other than pursuant to a ballot satisfying the requirements of [s.226 of the TULR(C)A], or

(b) with any third party so as to interfere with the trade or business of the plaintiffs or any of them.

2. Requiring the defendants, by 1 pm on Friday 8.3.85, to withdraw, revoke or cancel any order, direction or advice given, whether directly or indirectly, to its members or any of them to do any act in breach of their said contracts of employment."

Future directions for industrial action law?

With less than two years to the next general election, it is interesting to speculate about the possible future direction of the law governing industrial action in the United Kingdom.

Common ground

It would seem that there is much common ground across the political spectrum on the essential characteristics of the legislation covering the collective aspects of industrial action. There can be little doubt, for example, that secret postal ballots before industrial action, and probably both pre- and post-ballot notice requirements, will remain an established part of the industrial relations landscape.

Possible reforms?

As we noted in the first part of this series, the present Conservative Government has no immediate plans to introduce further reforms of industrial action law. Nevertheless, Mr Portillo's comments indicate that it could well in due course return to the issue of placing further legal limitations on industrial action in public and/or essential services. It also seems possible from comments made in the media during the rail dispute of 1994, that consideration might be given to the introduction of compulsory periodic re-balloting of union members in such long-running disputes.

There have been occasional indications from the Labour Party that it would reintroduce a limited right to take secondary action against associated employers, or employers providing goods and services in direct substitution for those produced by the main employer in dispute. It has also proposed the introduction of a new Industrial Court to deal with the whole area of industrial disputes, and might well wish to reform interlocutory injunction procedures. Furthermore, the Labour Party has confirmed that it would provide protection against dismissal for those whom it describes as "lawful" strikers. The term "lawful" in this context would appear to mean action falling within the trade dispute immunities, and supported by a valid ballot.

The Liberal Democrats, for their part, seem to feel that recent reforms have gone too far in making trade unions responsible for unauthorised action, including unofficial strikes, while limiting unions' ability to impose discipline on their members. It would "review" this issue in consultation with the Trades Union Congress and employers' representatives.

From the above, it would appear that there is little likelihood of any substantial rewriting of the law on industrial action, and that most of the possible changes would focus on technical and procedural matters.

IRLB guide to industrial action and the law

Part 1 : The contract of employment, covering the impact of industrial action on contracts of employment, employer responses to breaches of contract, and employer lock-outs.

Part 2 : Employment protection rights, including effect of industrial action on unfair dismissal rights, redundancy payments, guarantee payments and continuity of employment.

Part 3 : Civil liability and industrial immunities, covering the industrial torts, trade union responsibility, the statutory immunities (including balloting requirements), and picketing.

Part 4: Restraining industrial action, including injunction procedures, damages, trade union members' and citizens' rights to restrain action, and future directions for industrial action law.

Case list

American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504

Associated British Ports v Transport and General Workers' Union [1989] IRLR 291 (HC); [1989] IRLR 305 (CA); [1989] IRLR 399 (HL)

Austin Rover Group v Amalgamated Union of Engineering Workers [1985] IRLR 164

Barretts & Baird (Wholesale) Ltd v Institution of Professional Civil Servants [1987] IRLR 3

Boxfoldia Ltd v National Graphical Association (1982) [1988] IRLR 383

Clarke and others v Heathfield and others (No. 2) [1985] ICR 606

Dimbleby & Sons Ltd v National Union of Journalists [1984] IRLR 161

Dimskal Shipping Co SA v International Transport Workers' Federation [1992] IRLR 78

Duport Steels Ltd v Sirs and others [1980] IRLR 116

Express & Star Ltd v NGA (1982) [1986] IRLR 222 (CA); [1985] IRLR 455 (HC)

Falconer v ASLEF and NUR [1986] IRLR 331

Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70

Hadmor Productions Ltd and others v Hamilton and another [1982] IRLR 102

Howitt Transport Ltd and Howitt Brothers Ltd v Transport and General Workers' Union [1973] IRLR 25

Mercury Communications Ltd v Scott-Garner and the Post Office Engineering Union [1983] IRLR 494

Merkur Island Shipping Corporation v Laughton and others [1983] IRLR 218

Messenger Newspapers Group Ltd v National Graphical Association (1982) (No.1) [1984] IRLR 345

Messenger Newspapers Group Ltd v National Graphical Association (1982) (No.2) [1984] IRLR 397

Metropolitan Borough of Solihull v National Union of Teachers [1985] IRLR 211

News Group Newspapers Ltd and other v SOGAT '82 and others [1986] IRLR 337

NWL Ltd v Laughton and Woods [1979] IRLR 478

Post Office v Union of Communication Workers (No.1) 22.10.93 High Court

Post Office v Union of Communication Workers (No.2) 8.2.95 High Court

Richard Read and another v National Union of Mineworkers (South Wales Area [1985] IRLR 67

Supply of Ready Mixed Concrete (No.1), Re [1992] ICR 22

Supply of Ready Mixed Concrete (N0.2), Re [1995] 1 All ER 135

Taylor and Foulstone v National Union of Mineworkers (Yorkshire Area) and another [1984] IRLR 445

Torquay Hotels Co Ltd v Cousins and another [1969] 1 All ER 522

Union Traffic Ltd v Transport and General Workers' Union and others [1989] IRLR 127

United Biscuits (UK) Ltd v Fall [1979] IRLR 111

Universe Tankship of Monrovia v International Transport Workers' Federation and others [1982] IRLR 200

¹ See "Employers step up legal challenges", published in Labour Research, September 1994.

² 1991, Cm 1602.