Industrial action 3: Civil liabilities and immunities

In the third in our series of Guidance Notes on industrial action and the law, we outline the potential civil legal liabilities faced by the organisers of such action (including trade unions), and focus in particular on the extent of any legislative "immunities" in respect of certain of those liabilities.

"A trade union's immunity from the normal legal consequences of calling on its members to take industrial action is a privilege which should be available only if proper democratic procedures are followed. There is no reason why an employer should be left without a legal remedy if his business, and the jobs of his employees, are damaged, or put at risk, by a strike which has not been put to the test of a secret ballot."

(from the 1991 Green Paper Industrial relations in the 1990s, Cm 1602)

In parts one and two of this series we considered the consequences of participating in industrial action for individual employees. We now broaden our canvas, to focus on the potential legal pitfalls faced by those who organise or coordinate industrial action, including trade unions.

The organisation of industrial action almost inevitably involves the commission of a civil legal wrong (that is, a "tort"). A historical battle was waged in the late 19th and first half of the 20th century between judicial development of these liabilities, and parliamentary provision of legislative "immunities" in respect of the worst rigours faced by the organisers of industrial action. Those immunities have, however, always been limited. They apply only to a handful of so-called "economic" or "industrial" torts which most commonly occur in the context of industrial action. Numerous other torts or civil wrongs - including a number which may occur in the course of picketing - attract little or no legislative protection.

Since 1979, the Government has further limited the immunities available in an attempt to outlaw secondary or sympathetic industrial action in support of other workers in dispute, and in the course of its crusade against, among other things, the closed shop. The underlying policy has been to deter industrial action, and to ensure that where it occurs it is contained within the individual employment unit. In addition, trade union responsibility for industrial action has been extended, and unions are now subject to complex procedural rules which require industrial action ballots and notice of action to be given to employers.

Crossing the minefield

What we are left with may be described as a legal minefield. In this article, we examine the process of crossing this minefield by discussing in turn:

  • the range of potential torts which can occur in the context of industrial action;

  • trade union responsibility for such wrongs;

  • the basic legislative immunity provided by the Trade Union and Labour Relations (Consolidation) Act 1992 (the TULR(C)A);

  • those areas where this immunity is automatically withdrawn because of the nature or purpose of the industrial action; and

  • the further balloting and notice requirements with which trade unions must comply in order to retain immunity.

    In the final part of the series, we will examine the civil remedies open to employers and others who may suffer damage as a result of industrial action.

    The economic torts

    The torts most commonly committed in the context of industrial action are known as the economic or industrial torts. These are based on threatening to break, or inducing the breach of, employment contracts. Since virtually all forms of strike or other industrial action involve a potential breach of such contracts by those who participate (see part one of this series), it will normally be a relatively simple task for employers to establish the prima facie civil liability of the organisers of action (including trade unions), or at the very least that there is a serious issue to be tried for the purposes of obtaining an interlocutory injunction prohibiting action (see part four of this series, forthcoming). We summarise the gist of these torts below.

    Inducement of breach of contract

    A direct inducement of a breach of contract has long been recognised as a tort. Based on the classic case of Lumley v Gye, it involves "a direct persuasion, procurement or inducement applied by a third party to the contract-breaker, with knowledge of the contract concerned and the intention of bringing about its breach" (see Middlebrook Mushrooms Ltd v Transport and General Workers' Union and others). In the context of industrial action, this will occur almost every time a trade union official or other organiser calls on employees to withdraw their labour, or to take other industrial action, in breach of their employment contracts. Similarly, it may arise where a union official directly approaches a customer or supplier of an employer who is in dispute with the union's members, and persuades it not to deliver or accept goods in breach of a commercial contract.

    In relation to picketing, the Court of Appeal has expressed the opinion that "the presence alone" of pickets at a site is likely to be a sufficient "persuasion", if it is clear that their presence was intended and was successful in its object of inducing breaches of employment contracts (Union Traffic Ltd v Transport and General Workers' Union). On the other hand, in the Middlebrook Mushrooms case, a leafleting campaign organised by the TGWU was aimed at persuading potential customers of supermarkets not to buy Middlebrook Mushrooms' products. It was not, however, aimed at either of the parties to alleged commercial contracts for the supply of mushrooms, and did not therefore amount to a direct inducement to break any such contracts.

    Interference with contract

    It is a tort to interfere with another's contractual rights by the use of independently unlawful means. The classic form of "unlawful means" in the context of an industrial dispute is the direct inducement of a breach of employees' contracts, which results in interference with commercial contracts with the employer's customers or suppliers. The key elements of this tort are:

  • that the organiser(s) knew of the relevant commercial contract(s) and intended to induce their breach or to interfere with them;

  • that the organiser(s) did definitely and unequivocally persuade, induce or procure employees concerned to break their employment contracts with the requisite intent (the unlawful means);

  • that the employees induced did in fact break their contracts; and

  • that the breach of/interference with the commercial contract(s) was a "necessary consequence" of the unlawful inducement of employees (D C Thomson & Co Ltd v Deakin).

    The liability here arises indirectly as a result of the calling of industrial action, and will cover interference with commercial contracts short of a breach. For example, there may be a force majeure clause in such a contract by virtue of which there is no actionable breach by either of the parties to it when supplies are interrupted due to industrial disputes. The tort of indirect interference with contract is nevertheless established (see Torquay Hotel Co Ltd v Cousins and others). Indeed, interference may mean merely "hindrance", so that liability can arise even though the commercial contracts in question are fully performed (see the Court of Appeal in Dimbleby & Sons v National Union of Journalists). It should be noted that "unlawful means" for the purpose of this tort may be any independently actionable legal wrong including, for example, a nuisance, trespass or inducement to breach of statutory duty (see below).

    Intimidation

    The tort of intimidation occurs where A threatens B that he or she will commit an act which constitutes unlawful means as against B, with the intention of causing B to do or refrain from doing something which he or she is at liberty to do, thus causing damage to B (two-party intimidation), or to another person (C - three-party intimidation). Historically, the unlawful means in this tort involved coercive threats of violence, and in this form it can still be relevant to events occurring on picket lines (see News Group Newspapers Ltd and others v SOGAT '82 and others). However, in Rookes v Barnard, the category of unlawful means was extended to include a threat to break an employment contract.

    The essence of the tort is that the person threatened succumbs to the threat and damage is suffered (either by that person or another). In Rookes itself, for example, two shop stewards and a full-time union official threatened the employer (an airline) with a strike unless a non-unionist, Mr Rookes, was dismissed. The employer lawfully terminated Mr Rookes's contract of employment, but he nevertheless successfully sued the officials for intimidation and (in the case of the full-time official) conspiracy to intimidate. This means that there is a potential liability for intimidation every time industrial action (which is likely to be in breach of employment contracts) is threatened.

    Interference with trade or business

    This is a comparatively new tort, which is similar in many of its elements to indirect interference with contract by unlawful means. It is, however, broader because it does not presuppose the existence of a commercial contractual relationship, and is capable of protecting a party's "commercial expectations" (see Hadmor Productions Ltd and others v Hamilton and others). The tort is particularly important because, if the unlawful means used to interfere with business relations are not themselves based on interference with contracts (or threats to break or interfere with contracts), there is no basic immunity from civil liability for the organisers of industrial action (see p.5, below).

    Conspiracy

    The element of combination involved in collective action means that the tort of conspiracy may be committed by those organising and/or participating in industrial action. This tort may take one of two forms.

  • Simple conspiracy to injure: a so-called "simple" conspiracy to injure consists of a combination of two or more persons to harm another, where the predominant purpose of the agreement is to injure that other person rather than to pursue the conspirators' own "legitimate interests". This form of conspiracy has been described as an anachronism, since it does not involve any independently unlawful act or legal wrong. Its unlawfulness lies in the mere fact of combination for the prohibited purpose. Its practical and contemporary relevance is, however, limited, since the pursuit of most traditional trade union objectives will now be regarded at common law as "legitimate interests" (see Crofter Handwoven Tweed v Veitch).

  • Conspiracy to use unlawful means: this involves conspiring to use independently unlawful means with the intention of damaging another party. This was the basis of the liability of the full-time union official in Rookes v Barnard. He was not employed by the airline, so could not directly threaten to break a contract of employment. However, he could be liable as a conspirator with the lay officials, who were employees.

    Note: All Crown employees are deemed to work under contracts of employment for the purposes of establishing liability for torts involving inducement of breach of contract, interference with contracts and intimidation (involving threatened breach or interference with contracts) - s.245 of the TULR(C)A.

    Non-industrial torts

    As we observed at the outset, the legislative "immunities" cover only a limited number of the economic torts just outlined. Numerous other civil wrongs may potentially be committed in the course of industrial action, and in particular in the course of picketing. The following constitute just a few examples.

  • Inducing breach of statutory duty: it now seems to be established that it will be an actionable tort to induce another person to breach a statutory duty as a result of which damage is caused. This tort is potentially of great significance in the public sector, where workers may be found to have statutory as well as contractual duties. However, the courts will look extremely carefully at the legislative background to any alleged statutory duty. For example, in London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers, the High Court held that ordinary teachers (as opposed to head teachers) were not under a statutory duty to implement the national curriculum and carry out standard assessment testing.

  • Trespass: it will be an actionable tort to trespass on private property in the course of a dispute. This would include a workers' sit-in on their employer's property, following a withdrawal by the employer of any permission which allows the workers to enter that property. A trespass may also be committed by an individual who gains unauthorised access to the employer's property in order, for example, to address a meeting of the workforce (see Norbrook Laboratories Ltd v King and Sands).

  • Nuisance: the tort of "private" nuisance consists of an unlawful interference with a person's use or enjoyment of land, or some right in connection with it. In particular, the owner of land which is adjacent to the highway has a right of access to the highway from any part of that property. If, for example, picketing amounts to an unreasonable attempt to regulate or control access or egress to and from that property, it may well constitute a private nuisance (see Mersey Dock & Harbour Company v Verrinder).

    Union responsibility

    The legal basis of trade union responsibility for tortious wrongs committed in the course of industrial action differs according to whether the particular tort alleged is one of the industrial torts, or one of the other torts just outlined.

    Industrial torts

    In relation to the "industrial torts" - that is, the torts of direct inducement of breach of contract, interference with contract by unlawful means, intimidation (involving a threat to break a contract) or a conspiracy to commit one of these torts - an act shall be taken to have been done by a trade union if it was authorised or endorsed by the union in accordance with the provisions of ss.20 and 21 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the TULR(C)A).

    Under s.20(2), an act is taken to be authorised or endorsed by a union if it was done, or was authorised or endorsed by:

  • any person empowered by the rules of the union to do, authorise or endorse acts of the kind in question (s.20(2)(a)). For these purposes, the rules of the union mean "the written rules of the union and any other written provision forming part of the contract between a member and the other members" (s.20(7));

  • the principal executive committee, president or general secretary (s.20(2)(b));

  • any other committee of the union, or any other official of the union (whether employed by it or not) - s.20(2)(c). An "official" of the union is defined as an officer of the union, or a person elected or appointed to represent members in accordance with the (written) rules of the union (it thus includes "lay" shop stewards or other workplace representatives). Any group of persons constituted in accordance with the (written) rules of the union is a committee of the union (s.20(3)(a)). In addition, s.20(3)(b) provides that an act will be taken to have been done, authorised or endorsed by an "official" if it was done, authorised or endorsed by, or by any member of, any group of which he (or she) was a member at the material time, "the purposes of which included organising or coordinating industrial action" (s.20(3)(b)). This would include, for example, an ad hoc strike committee.

    In relation to the second and third groups (that is, under s.20(2)(b) and (c)), responsibility is imposed notwithstanding anything in a union's rules, or any other contract or rule of law (s.20(4)).

    Repudiation

    The actions of officials or committees falling within the third group may, however, be "repudiated" by the principal executive committee, president or general secretary of a union, so as to relieve the union of responsibility. Any repudiation must occur "as soon as is reasonably practicable after [the act] comes to the knowledge" of any of the specified persons (s.21(1)), and must be communicated in writing to the relevant committee or official "without delay" (s.21(2)). The union must also "do its best" to give individual written notice of the fact and date of the repudiation, without delay, to every member who it has reason to believe is taking part or might take part in the action as a result of the act in question, together with the employer of every such member. The notice given to members must contain the warning stipulated in s.21(3), in respect of the potential consequences of dismissal during "unofficial" action (see part two of the series, pp.11 and 12).

    "Repudiation" means "an open disavowal and disowning of the acts of the official [or committee] concerned". It must be more than merely a "conditional and half-hearted reprimand", and must be clear in its terms (Express & Star Ltd v NGA (1982)).

    "Inconsistent" action

    A repudiation will in any event be ineffective if the principal executive committee, president or general secretary subsequently behaves in "a manner which is inconsistent with the purported repudiation" (s.21(5)). Thus, a union cannot go through the "pantomime" of putting down paper resolutions and issuing a repudiation, whilst in effect continuing to support action.

    Courts may therefore, in certain circumstances, infer that the actions of union officials (whether local, regional or national) who continue to induce or encourage industrial action following an alleged repudiation are implicitly supported "from above", unless, for example, the union has taken or threatened disciplinary action against the recalcitrant individuals - for example, by withdrawing the credentials of lay officials (Heatons Transport (St Helens) Ltd v Transport and General Workers' Union). It seems that such implicit support may include "nods, winks, turning of blind eyes and similar clandestine methods of approval, which do not appear in records or minutes or circulars" (Express & Star Ltd v NGA (1982)). Similarly, a continuing failure to ensure that funds (including branch funds) over which a union headquarters has some control are not applied in support of the dispute in question (for example, in the form of strike pay), would probably be evidence of action inconsistent with a repudiation (Express & Star Ltd v NGA (1982)).

    Furthermore, the union executive, president or general secretary will be deemed to have acted inconsistently if, on a request made to any of them within three months of the purported repudiation by any person whose "commercial" contracts have been, or may be, interfered with as a result of the industrial action in question, they fail to provide "forthwith" written confirmation to that person that the act has been repudiated (s.21(6)).

    Responsibility for other torts

    The responsibility of unions for torts other than the specified industrial torts is based on common law principles of "vicarious liability" and agency. The essential question is whether the relevant acts or decisions fall within the scope of the express or implied authority of paid union officials, or are otherwise (in respect of lay officials or other members) expressly or impliedly authorised under the rules and/or custom and practice of the union.

    In Heatons Transport (St Helens) Ltd v Transport and General Workers' Union, the House of Lords held that authority may be conferred on individuals either by the express or implied rules of the union; by express or implied delegation of authority under those rules; by virtue of the office held within the union, including that of a "shop steward"; or "otherwise", including the custom and practice of the union. If authority to take a particular type of action is not excluded by the rules, and if such authority can reasonably be implied from custom and practice, that authority will continue to exist until unequivocally withdrawn.

    According to this approach, authority to take or call for industrial action may be conferred on individuals not only from "the top" of the union, but may be expressly or impliedly conferred directly on lay officials from "the bottom" - that is, by the membership.

    It is arguable, however, that this will rarely be found in the present day. In response to the legislation of the last 15 years, many trade unions now have written procedures which effectively preclude lay officials from authorising or endorsing industrial action, and which generally confer the ultimate authority to sanction action only on senior (normally national) full-time officers and/or the principal executive committee of the union, following a ballot.

    Responsibility for picketing

    The underlying principles of vicarious liability enunciated in the Heatons case have also been applied in relation to a union's potential responsibility for non-industrial torts which occur in the course of picketing. For example, in Thomas v National Union of Mineworkers (South Wales Area), Mr Justice Scott held that the South Wales Area of the NUM (an independent union in its own right) was responsible on "normal principles of vicarious liability" for what was done by local lodges (branches) and their officers in organising picketing at colliery gates on behalf of and in the name of the South Wales Area Union.

    Unions and individual organisers of action are not liable simply because they organise marches or picketing during which tortious acts (such as public and private nuisances, and intimidation) are committed by others, even if those torts are foreseeable. However, in News Group Newspapers v SOGAT '82 and others, Mr Justice Stuart Smith held that liability may arise because the organisers in question (whether individuals and/or trade unions) continue to organise events which in the light of experience amount to a nuisance or other torts, in the knowledge or presumed knowledge that such torts are being committed by those whom they organise (even though they do not encourage the tortious conduct, and indeed may condemn it). In these circumstances, the organisers may be taken to have authorised the commission of a nuisance or other torts, or to have continued a nuisance, particularly where the evidence indicates that they can control the event and the conduct of those taking part, but fail to take any or any adequate steps to do so.

    In the SOGAT case itself, Stuart Smith J thought that the unions involved could exercise "substantial control" over their members, but, if they could not ultimately control them, they might have to desist from organising the activity in question, or organise it away from the plaintiffs' premises. Furthermore, there was no evidence that the unions in question had ever disciplined or threatened to use their extensive powers to discipline members or officials who had "persistently flouted" the unions' instructions that picketing was to be disciplined and peaceful.

    The industrial immunities

    Legislation provides a limited immunity from civil legal action in respect only of the industrial torts outlined above (including "simple" conspiracy). It also seems clear that if the "unlawful means" which are alleged to provide the basis for a broader tortious liability (for example, interference with trade or business by unlawful means) is itself one of the immune torts, immunity will be retained (see Hadmor Production Ltd and others v Hamilton and others).

    There is no immunity whatsoever in respect of any of the other torts which may be committed in the course of industrial action. Immunity in respect of a protected tort is not, however, lost merely because a person may also be liable for other unprotected torts.

    The "golden formula"

    The basic immunity - known as the "golden formula" - is contained in s.219(1) of the TULR(C)A, which provides that "an act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only" that it involves one of the specified industrial torts. Protection is accordingly afforded to any "person" who does an act with the requisite intention. It thus protects trade unions, union officers, union members and other individual organisers and/or participants in industrial action. A "trade dispute" means a dispute "between workers and their employer" which "relates wholly or mainly" to one or more of the matters contained in s.244(1)(a)-(g) of the TULR(C)A (see box on p.6). The following points should be noted.

  • There must be an actual or imminent dispute: there has to be a "genuine" dispute between the parties, and a dispute cannot exist unless there is a difference of opinion between those parties as to some matter. It must be more than uncommunicated grumbling, agitation or grievances, and should relate to something fairly definite and of real substance. A dispute should thus be either imminent (and the relevant acts done in expectation of and with a view to it), or existing (with the acts done in support of one side to it). To this extent, the test of the existence of a dispute is an objective question. Although the words "in contemplation or furtherance" refer essentially to the subjective state of mind of the person who does the act (see further below), they presuppose "an actual or emerging dispute" (see MacShane and another v Express Newspapers Ltd).

    For example, in Bents Brewery Co Ltd v Hogan, the High Court found that the sending out of documents by a union official - seeking certain information from union members about their terms and conditions of employment and their employers' weekly sales and wages bills - was an inducement of a breach of employment contracts. No statutory immunity was available, however, because there was no imminent or existing dispute at the time when the documents were circulated. There was a possibility of a dispute at some future date - if, for example, employers were to reject a request or claim made by the union in the light of the information obtained - but no certainty that such a dispute would arise.

    By contrast, in Health Computing and another v Meek, a union distributed a circular advising its members employed by NHS health authorities not to cooperate with a particular private contractor. The High Court found that this document had been distributed in contemplation of disputes which it was reasonably foreseeable would arise with some health authorities who would reserve the right to use that contractor's services.

    Indeed, s.244(4) of the TULR(C)A specifically provides that an act, threat or demand by one party which, if resisted, would have led to a trade dispute is to be treated as being done or made in contemplation of a trade dispute, notwithstanding the fact that no dispute actually arises because the other party submits to the act or threat or accedes to the demand. There must otherwise be a continuing "real and live" dispute and action cannot be taken under s.219 in respect of a dispute which has been resolved (London Borough of Newham v National and Local Government Officers' Association).

  • Disputes must be between the correct parties: there must be a dispute "between workers and their employer". Workers include those employed by the employer in dispute, or whose employment with that employer was terminated in connection with the dispute or whose termination of employment was one of the circumstances giving rise to the dispute (s.244(5)(b)). "Employment" is defined for the purposes of s.244 as "any relationship whereby one person personally does work or performs services for another".

    The limitation of the possible parties to a dispute means, for example, that action to put pressure on an employer which is not in dispute with its own workers, and action taken in the context of a dispute among workers themselves - including inter-union demarcation disputes - are not "disputes" for these purposes.

    However, a dispute between a Minister of the Crown and any workers is to be treated as a dispute between those workers and their employer - even where the Government is not the actual employer - if the dispute relates to matters which have been referred to a joint body on which, by virtue of any legislative provision, the Minister is represented, or cannot be settled without the Minister exercising a power conferred by or under or an enactment (s.244(2)). This provision was applied, for example, to recent disputes in the education sector (see London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers).

    In Home Office v Evans, the High Court held that prison officers fell outside the TULR(C)A definition of "worker", which excludes "a person in the police service" who has the "powers and privileges of a constable" (s.280). As a result, they could not be a party to a trade dispute under s.219. This anomaly was removed (in respect of prison officers in England, Wales and Northern Ireland) by s.126 of the Criminal Justice and Public Order Act 1994 (the CJA). A prison officer is no longer regarded as having the powers and privileges of a constable for the purposes of the TULR(C)A. This concession is offset by the creation of a statutory tort of inducing a prison officer to withhold his or her services, or to commit a breach of discipline (s.127 of the CJA). The tort is actionable by the Secretary of State, and would not fall within any protection afforded by s.219 of the TULR(C)A.

  • "Wholly or mainly" related to "trade dispute": any dispute must "relate wholly or mainly" to the trade dispute issues contained in s.244 of the TULR(C)A. This is once again an objective question. It directs attention to the predominant subject-matter and purpose of a dispute, and requires the courts to consider not only the particular occasion which causes the dispute to break out but also the reason why there was a dispute (see Mercury Communications Ltd v Scott-Garner and the Post Office Engineering Union).

    For example, in the Mercury case, the PEOU instructed members employed by British Telecom (BT) not to connect Mercury services to the BT network. The Court of Appeal held that this dispute was not mainly about the fear of possible job losses and redundancies (a potential trade dispute issue), but was in reality part of a wider and long-running "political" campaign by the union against the liberalisation of telecommunications and the privatisation of BT. It was consequently unlikely that the union would be able to establish any immunity under s.219.

    By contrast, in Associated British Ports and others v Transport and General Workers' Union, the Government announced its intention to abolish the National Dock Labour Scheme. The TGWU declared its total opposition to abolition, and demanded to meet employers in order to establish terms and conditions of employment "not less favourable" than those which obtained under the scheme. The High Court rejected the employers' contentions that a subsequent call for industrial action by the union was unlawful because there was no genuine trade dispute between the workers and their employers. In Mr Justice Millet's view, it was "not possible in the present case to characterise the union's concern for the future employment conditions of former registered dockworkers as part of a wider political dispute about the relevant legislation."

    Similarly, in London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers, the Court of Appeal upheld the High Court's decision that the union's boycott of standard assessment testing under the national curriculum was action taken in furtherance of a trade dispute which was wholly or mainly about the terms and conditions of teachers' employment. In particular, the dispute was mainly about the increase in teachers' workloads or working hours brought about by the imposition of additional duties in connection with the national curriculum, rather than the content of, or policy underlying, the curriculum itself. The Court of Appeal attached "considerable importance" to the wording of the question put to teachers in the ballot which preceded the action: "In order to protest against the excessive workload and unreasonable imposition upon teachers, as a consequence of national curriculum assessment testing, are you willing to take action, short of strike action?"

  • Overseas disputes: there is a trade dispute even though it relates to matters occurring outside the UK, provided that those taking action within the UK who are said to be acting in contemplation or furtherance of a trade dispute relating to matters outside the UK are likely to be affected by the outcome of the dispute (s.244(4)) in respect of one or more of the trade dispute matters in s.244(1).

  • "Contemplation or furtherance" determined subjectively: acts are protected if they are taken "in contemplation or furtherance" of a trade dispute". As noted above, this refers purely to the subjective "state of mind of the person who does the act". If the party who does the act honestly believes at the time he or she does it that it may help one of the parties to the trade dispute to achieve their objectives and does it for that reason, he or she is protected under s.219. The belief need only be honestly held; "it need not be wise, nor need it take account of the damage it will cause to innocent and disinterested third parties" (see MacShane v Express Newspapers Ltd).

    The position may be different, however, if the evidence justifies the conclusion "that no reasonable person versed in industrial relations could possibly have thought that the act was capable of helping one side in a trade dispute to achieve its objectives". But this will only cast doubt on an individual's honesty of purpose in taking action, not "the reasonableness of the act or its expediency".

    If there is a genuine trade dispute, however, there is no requirement that a union or other actor should be acting exclusively in furtherance of that dispute. It is sufficient if furtherance of the dispute is one of the actor's purposes. Furthermore, those purposes have to be distinguished from the actor's motives in calling for action. The presence of an "improper" motive - for example, a personal grudge or vendetta, acting out of spite or a gratuitous show of industrial muscle - can be relevant only if it "is so overriding that it negatives any genuine intention to promote or advance the dispute" (see the High Court in Associated British Ports v TGWU).

    Withdrawal of immunity

    As we have seen, the basic "immunity" contained in s.219 remains on the face of it fairly extensive. In itself, it is, for example, capable of protecting secondary or sympathetic industrial action taken by workers who are not themselves a party to a trade dispute, provided they act in contemplation or furtherance of somebody else's actual or imminent dispute. However, the legislation of the last 15 years has gradually circumscribed the immunity by limiting both the types of industrial action which may legitimately be taken, and the purposes of legitimate action.

    Immunity under s.219 (in respect of the specified industrial torts) is consequently automatically withdrawn from industrial action in seven circumstances:

  • action which is taken to enforce union membership (s.222 of the TULR(C)A);

  • action taken to enforce union-labour only or union recognition requirements (ss.222 and 225);

  • action which is defined as unlawful secondary action (s.224);

  • unlawful picketing (ss.219(3) and 220);

  • action taken in support of employees who are dismissed while taking "unofficial" strike or other unofficial industrial action (s.223);

  • (in respect of trade unions) action taken without the support of a valid ballot (s.226); and

  • action taken without giving an employer the prescribed seven days' notice of industrial action following a ballot (s.234A).

    We consider each of these categories below.

    Enforcing union membership

    A tortious act is not protected by s.219 if the reason, or one of the reasons, for which it is done is "the fact or belief" that a particular employer is employing, has employed or might employ a person who is not a member of any trade union, a particular trade union, or one of a number of particular trade unions; or is failing, has failed or might fail to discriminate against such a person (s.222(1)). References to a trade union include a branch or section of a trade union, or one of a number of particular branches or sections.

    An employer discriminates in this way if it ensures that its conduct in relation to its workers or prospective workers, or the provision of employment for such persons, is different according to whether or not they are union members, and is more favourable to those who are (s.222(2)).

    This provision effectively outlaws any industrial action (whether primary or secondary) taken in pursuit of imposing or enforcing a closed shop, and would also seem to rule out action which seeks preferential treatment for union members.

    Union-labour only and recognition

    There are a number of provisions which withdraw immunity from certain types of action which seek to establish union-labour only practices or union recognition requirements:

  • An act is not protected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person -

    (a)to incorporate a term or condition in a contract (for goods and services), which would be void under s.144 of the TULR(C)A because it requires that the work, or part of the work, done under the contract is to be done by persons who are, or are not, members of a trade union or particular trade unions (s.222(3)(a)); or

    (b)to contravene s.145 of the Act, which makes it unlawful for a contractor to refuse to deal with a supplier or prospective supplier on "union membership grounds" - that is, that work might be done by persons who were, or were not, members of a trade union or particular trade unions (s.222(3)(b)).

  • Action is similarly unprotected if it constitutes, or is one of a number of acts which together constitute, an inducement or attempted inducement of a person -

    (a)to incorporate a union recognition requirement (or a requirement to negotiate with, or with an official of, one or more trade unions) in a contract for goods or services contrary to s.186 of the TULR(C)A (s.225(1)(a)); or

    (b)to refuse to deal with a supplier or prospective supplier who does not recognise one or more unions (or negotiate or consult with, or with an official of, one or more trade unions) contrary to s.187 of the Act (s.225(1)(b));

  • In addition, an act loses protection if -

    (a)it interferes (or can reasonably be expected to interfere) with the supply of goods and services;

    (b)one of the facts relied upon in establishing liability is that there has been an inducement to break a contract of employment (or interference or inducement of another to interfere with its performance), or a threat of breach or inducement of interference with an employment contract; and

    (c)the reason for the action is the fact or belief that a supplier (who is not the employer under the contract of employment mentioned above) does not recognise, negotiate or consult with one or more trade unions (s.225(2)).

    This provision precludes any action to enforce union recognition on a supplier who deals with the workers' own employer, for example by "blacking" its goods or services. It would apply even if the workers sought to "manufacture" a primary trade dispute with their employer by demanding, as a term or condition of employment, that they should not be required to handle the goods or services in question (see British Broadcasting Corporation v Hearn). It does not, however, preclude primary action taken by workers in support of a claim for union recognition, negotiating or consultation rights from their own employer.

    Unlawful picketing

    In the context of picketing, immunity is withdrawn from an act which amounts to one of the industrial torts specified in s.219 unless it is done in the course of attendance which is declared lawful by s.220 of the TUL(R(C)A (see s.219(3)). Under s.220(1), it is lawful for a person "in contemplation or furtherance of a trade dispute" to attend:

  • at or near his or her own place of work; or

  • if he or she is an official of a trade union, at or near the place of work of a member of the union whom he or she is accompanying and whom he or she represents,

  • for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from work.

    There is no definition of a worker's "place of work" for these purposes, although the Code of Practice on picketing (1st revision) suggests that it means the "factory, site or office at which the picket works" (para. 17). There are, however, specific provisions dealing with workers who work or normally work at more than one place (ie mobile workers), or at a place which it is impracticable to picket because of its location (for example, an oil rig). In these cases, the place of work is deemed to be any of the employer's premises from which the worker works or from which his or her work is administered (s.220(2)).

    An unemployed worker may picket at his or her last place of work, provided that his or her employment was terminated in connection with a trade dispute, or the termination of his or her employment was one of the circumstances giving rise to the dispute (s.220(3)). Such workers cannot, however, "follow" their employer to a location which was not their last place of employment. If a person is a union official by virtue only of having been elected or appointed to be a representative of some of the members of the union (in particular lay officials and shop stewards), he or she is regarded as representing only those members for the purposes of lawful attendance under s.220(1). Union officials are otherwise regarded as representing all of the union's members for these purposes.

    Unlawful secondary action

    Immunity under s.219 is lost if one of the facts relied upon in establishing tortious liability is that there has been "secondary action" (s.224(1) of the TULR(C)A). There is secondary action in relation to a trade dispute when a person:

  • induces another to break a contract of employment or interferes or induces another to interfere with its performance; or

  • threatens that his or her own contract of employment will be broken or its performance interfered with, or that he or she 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 (s.224(2)).

    This is contrasted with "primary action" where the employer under the contract of employment in question is the employer party to the dispute (s.224(5)). A contract of employment for these purposes includes any contract under which one person personally does work or performs services for another.

    An employer cannot be treated as a party to a dispute between another employer and workers of that employer, and where more than one employer is in dispute with its workers, the dispute between each employer and its workers is to be treated as separate (s.224(4). This provision in particular reinforces the reluctance of the courts to "lift the veil" of incorporation under company law to look at the reality of corporate control and administration, and assess whether a number of employers in a group are in fact one and the same (see, for example, Dimbleby & Sons Ltd v NUJ).

    On the other hand, action which is taken in contemplation of furtherance of a trade dispute which is primary action in relation to that dispute may not be relied upon as secondary action in relation to another trade dispute (s.224(5)). This at least protects the organisers of primary action from the consequential effects of that action on third parties. All of these provisions, however, emphasise the underlying policy of containing industrial action within the individual employment unit, and of outlawing virtually all sympathetic action.

  • Picketing exemption: There is a limited exception contained in the provisions on secondary action for peaceful picketing - ie picketing which is lawful under s.220 of the TULR(C)A - by a worker employed (or, in the case of an unemployed worker, last employed) by the employer who is party to the dispute (or by a union official who is accompanying and represents such an worker) - s.224(3). This recognises that picketing which occurs in the course of lawful primary action could otherwise amount to unlawful secondary action if, for example, it induced lorry drivers employed by another employer to refuse to deliver or collect goods from the employer in dispute, in breach of their contracts of employment.

    Supporting employees dismissed during "unofficial" action

    There is no protection under s.219 if the reason for doing an act, or one of the reasons for doing it, was the fact or belief that an employer has dismissed one or more employees in circumstances where they have no right to complain of unfair dismissal, because they were dismissed while taking part in "unofficial" strike or other unofficial industrial action as defined in s.237 of the TULR(C)A (s.223 of the Act). We considered the definition of unofficial action in relation to any individual employee at pp.11-12 of part two.

    Thus any action to support employees who have been dismissed in those circumstances, or who a trade union or other organiser believes to have been so dismissed, loses immunity. For example, in British Railways Board v National Union of Rail, Maritime and Transport Workers, it was held that members of a local staff committee were not officials or members of a committee of their union, because the committee in question was set up by collective agreement between the employer and the union and that agreement was not incorporated into the written rules of the union (see p.4, above). Industrial action called by these individuals - during which they had been dismissed - was consequently "unofficial industrial action", since it had not been authorised or endorsed by any trade union within the meaning of s.20(2) of the TULR(C)A. An interlocutory injunction was therefore granted (applying s.223) to restrain a later strike called in protest at their dismissals.

    Valid industrial action ballot

    An act done by a trade union to induce a person to take part, or continue to take part, in industrial action is not protected by the s.219 immunities, unless the industrial action "has the support of a ballot" which complies with the requirements of ss.226-235. For these purposes, an "inducement", in relation to a person, includes an inducement which is or would be ineffective, whether because of his or her unwillingness to be influenced by it or for any other reason (s.226(4). The statutory provisions are supplemented by the Government's 1991 Code of Practice on trade union ballots on industrial action (1st Revision). The Code itself imposes no legal obligations, but it is admissible in evidence in proceedings before any court where it is considered relevant.

    Note: Consultation on a draft Code of Practice on industrial action ballots and notice to employers - to replace the existing Code - was completed in January 1995. The Department of Employment is now preparing a final version of the new Code, and hopes that it will obtain parliamentary approval by the late summer of this year.

    The main conditions for a valid ballot are as follows:

  • Entitlement to vote in a ballot must be accorded equally to all members who it is reasonable for the union to believe will be induced to take part or continue to take part in strike or other industrial action (s.227(1)). This is an "absolute obligation", and a failure to comply will invalidate the ballot (British Railways Board v National Union of Railwaymen).

    A "contract of employment" for the purposes of the balloting provisions includes any contract under which a person "personally does work or performs services for another" (s.235 of the TULR(C)A). Thus, freelance and self-employed workers must be taken into account when balloting on industrial action, as must civil servants and other Crown employees (see s.245).

    A union may, however, exclude "overseas members" from the entitlement to vote. "Overseas members" are members, other than merchant seafarers or offshore workers (that is, persons in offshore employment other than in Northern Ireland), who are outside Great Britain throughout the period during which votes may be cast in the ballot. A member who is in Northern Ireland throughout that period is not, however, to be treated as an overseas member if either separate workplace ballots are required under s.228(1) and (2) of TULR(C)A and his or her "place of work" is in Great Britain, or, if a ballot is to be aggregated across a number of workplaces under s.228(3), the ballot relates to industrial action involving members in both Great Britain and Northern Ireland (see immediately below).

  • Where the members who it is reasonable at the time of the ballot for the union to believe will be induced to take part, or continue to take part, in the industrial action in question have different places of work, separate ballots must be held for each place of work (s.228(1) of the TULR(C)A). A member's "place of work" for these purposes means the premises occupied by his or her employer at or from which he or she works or, if he or she does not work from any such premises or works at more than one set of premises, the premises with which his or her employment "has the closest connection" (s.228(4)).

    The requirement for separate ballots does not, however, apply if it is reasonable for the union to believe (and it does believe) that all such members have the same place of work (s.228(2). Furthermore, ballots may be aggregated across a number of workplaces (and employers) if at the time of the ballot it is reasonable for the union to believe, and it does believe, that there is a "common factor", relating to terms and conditions of employment or occupational descriptions, which each member who is to be accorded entitlement to vote shares with one or more other members who are accorded that entitlement. That factor must not, however, be shared with any member employed by the same employer who is not entitled to vote (s.228(3)).

    For example, in University of Central England and another v National and Local Government Officers' Association, a 4.3% national pay offer made through the employers' association (the Polytechnic and College Employers' Forum) was held to be the common factor relating to terms and conditions entitling the union to ballot all of its members employed in polytechnics and colleges covered by the negotiating forum.

  • Members must be allowed to vote without interference or constraint by the union, its members, officials or employees, and, as far as is reasonable practicable, without incurring direct costs (s.230(1)).

  • Fully postal ballots (s.230(2) TULR(C)A): so far as is reasonably practicable, all members entitled to vote must be sent a voting paper at his or her registered address, and be given a convenient opportunity to vote by post. Workplace voting is no longer sufficient if immunity is to be retained, except in the case of merchant seafarers who the union reasonably believes will be at sea throughout the period of the ballot (see s.230(2A)-(2C)).

    The duty under s.230(2) is qualified by the phrase "so far as is reasonably practicable". It has been held that there is "a profound difference" between "denying someone's entitlement to vote [under s.227, see above] and inadvertently failing to give him an opportunity to vote". Thus "trifling errors should not be allowed to form the basis for invalidating the ballot." In the context of a large ballot conducted in an industrial context, the Court of Appeal has recognised that there are always likely to be a few people whose names are not on membership lists or registers, perhaps because they have changed jobs; and that there will be others who may have failed to notify the union of a change of address, or whose ballot papers may get lost in the post (British Railways Board v National Union of Railwaymen).

  • The ballot paper must, among other things, state the name of the independent scrutineer (if appropriate), the address for return, and the date by which votes must be returned (s.229(1)). It must contain separate and distinct questions (however framed) asking members if they are prepared to take part in strike action or action short of a strike respectively, if the union wishes to have maximum flexibility (s.229(2)). A union may seek authority for only one of these forms of action, but it is impermissible to ask a "rolled-up" question, covering any or every possible form of action (Post Office v Union of Communication Workers).

    Crucially, the ballot paper must specify who, in the event of a vote in favour of industrial action, is authorised to call upon members to take part in, or continue to take part in the industrial action (s.229(3)). The specified person can be anyone who falls within s.20(2) of the TULR(C)A (ie those for whom a union is statutorily deemed to be responsible - see above, p.4).

    All ballot papers must (without qualification or comment) also contain the following statement:

    "If you take part in strike or other industrial action, you may be in breach of your contract of employment." (s.229(4))

  • Independent scrutiny is required for ballots of more than 50 union members (see box on p.9).

  • Information for employers:

    Before the ballot: A trade union "must take such steps as are reasonably necessary to ensure" that at least seven days before the start of the ballot it sends a written notice to every person who it is reasonable for the union to believe will be the employer of persons who will be entitled to vote in the ballot (s.226A(1)(a) of the TULR(C)A). This notice must:

    (a)state that the union intends to hold a ballot;

    (b)give the date which the union reasonably believes will be the opening day of the ballot;

    (c)set out a description of the employees who the union reasonably believes will be entitled to vote in the ballot, from which the employer can readily ascertain the employees' identities (s.226A((2)).

    The words "describing (so that he can readily ascertain them) the employees of the employer" have been held to mean that "the union must, by specifying a category or by naming individuals or by a combination of the two, enable the employer readily to ascertain which of [its] employees are to be balloted, and subsequently to be called upon to take the relevant action" (Blackpool & Fylde College v National Association of Teachers in Further and Higher Education).

    In addition, the union must, at least three days before the ballot opens, send the same employer(s) a sample voting paper or papers (if more than one type is to be used - s.226A(1)(b) and (3)).

    A failure to comply with these requirements on the face of it removes immunity only in respect of the employer in question, but it may nevertheless also provide the basis for an individual to exercise the citizen's right to restrain action under s.235(A) of the Act (to be discussed in the final part of this series).

    After the ballot: As soon as reasonably practicable after the holding of the ballot, a trade union must take all such steps as are reasonably necessary to inform every "relevant employer" of the number of votes cast, "yes" votes, "no" votes, and spoiled papers (s.231A). The union has an analogous obligation to inform all those union members entitled to vote in the ballot of the same matters (s.231).

  • There must be no "call" by the union before the date of the ballot to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement of such action (s.233(3)(a) of the TULR(C)A). (Authorisation or endorsement is for these purposes as defined in ss.20 and 21 of the TULR(C)A.) A union is nevertheless entitled to be "partisan" when balloting its members (ie it can campaign for a "yes" vote), and is not required to call off any existing and related lawful action. Unions may thus seek a mandate to extend or escalate such action (London Borough of Newham v National and Local Government Officers' Association).

    They cannot, however, legitimise otherwise unlawful action by moving straight to a ballot. If that action has been called (without a valid ballot) by, for example, lay officials, the union will be deemed to have authorised or endorsed it. As a result of s.233(a), it would appear that it can then only hold a valid ballot following an effective repudiation of the action (in accordance with s.21 of the Act).

  • A ballot is only valid if the majority of those voting in the ballot voted "yes" to industrial action of the kind to which the union's act or inducement relates (s.226(2)(a)(iii)). Where the ballot poses two separate questions (ie relating respectively to strike action and action short of a strike), each question falls to be regarded as a separate matter in respect of the requirement for a majority vote in favour (West Midlands Travel Ltd v Transport and General Workers' Union).

  • Any "call" for action following the ballot must be made by a person specified on the ballot paper (s.233(2) and (3)(b)). In many unions, the specified person will now be a senior national union officer. There is, however, some flexibility allowed in relation to the implementation of action following a call by such a person. For example, in Tanks & Drums Ltd v Transport and General Workers' Union, a conditional "call" for action by the specified person (in this case, the union's general secretary) was held to be valid. The Court of Appeal stated that "some matters must be left for the judgment of those on the ground who have to decide how and when as a matter of common sense the call for action is to be put into operation."

  • A ballot remains valid for four weeks beginning with the date of the ballot (s.234). The date of the ballot for the purposes of all the balloting provisions under the TULR(C)A means, in the case of a ballot in which votes may be cast on more than one day, the last of those days (s.246). There must generally be a call for action by a specified person, and industrial action to which the ballot relates, within that four-week period.

    This period may be extended up to a maximum of 12 weeks from the date of the ballot, where action has been prohibited by a court order which has lapsed or been discharged (s.234(4)-(6)) TULR(C)A). To take advantage of this time extension, a union must apply to the High Court for an order that the period of the prohibition should not count towards the normal four-week limit. Such an order will not, however, be granted if it appears to the court that the result of the ballot no longer represents the views of the union members concerned, or that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.

  • There may be a temporary "suspension" of industrial action pending negotiations, without the need for a fresh ballot if the action is later resumed (Monsanto plc v Transport and General Workers' Union). Generally, however, action must continue "without substantial interruption" if a ballot is to remain effective. Whether there has been a "substantial interruption" is a question of fact and degree, and is to be looked at from the perspective of the "average reasonable trade union member". For example, in Post Office v Union of Communication Workers, the Court of Appeal observed that the union had completely changed its tactics following industrial action which had culminated in a one-day national strike in December of 1988, and it only reverted to a policy of industrial action some nine months later. This latter action, said the Court, represented "entirely new and disconnected action which needed the support of a fresh ballot."

    Notice of industrial action

    The final hurdle to be surmounted by a trade union that wishes to take action within the immunity provided by s.219 of the TUL(R)CA, is the requirement to give employers at least seven days' notice of industrial action following a ballot under s.234A of the Act. This provision again, on the face of it, only removes immunity in respect of any particular employer who does not receive the required notice. It must also be read in the light of the need for industrial action to which the ballot relates to take place within four weeks of the date of the ballot (see above). This means that in effect a union is constrained to call for action, at the very latest, during the third week of that period.

    To comply with s.234A, a union must take such steps as are reasonable to ensure that notice is given to employers which the union reasonably believes will be affected by any proposed (or continued) industrial action. This should be received by the employer after it has been informed of the ballot result (see above), but at least seven days before the industrial action is set to begin. The notice must be in writing, and contain the following information:

  • a description (which enables the employer to readily ascertain them) of the employees whom the union intends to call upon to take part in the industrial action. This may again require the union to name individual members (Blackpool & Fylde College v NATFHE - see above); and

  • whether the industrial action is intended to be continuous or discontinuous (that is, it will take place only on some days on which there is an opportunity to take the action). In the former case, the date on which the action is intended to start; in the latter case, the dates on which the industrial action is intended to take place.

    Such a notice will preserve immunity from legal proceedings as long as the person induced to take part in the action is one of the employees specified in the notice, and he or she participates only in the industrial action specified in the notice, and on the date(s) specified.

    Where continuous industrial action which has been authorised or endorsed by a trade union ceases to be so authorised or endorsed (other than in compliance with a court order or undertaking), but is later re-authorised or re-endorsed (for example, following a suspension of action pending negotiations), the union will have to issue a further seven-day notice to the employer before the action is resumed.

    Note: The union complies with the notice requirement if the steps are taken "by other relevant persons or committees whose acts were authorised or endorsed by the union" (as defined in s.20(2)-(4), considered above). The belief or intention of those persons or committees will determine union responsibility and liability.

    Organising industrial action and the law: main points to note

  • A number of civil wrongs may be committed by the organisers of industrial action (including trade unions). Those most commonly encountered are known as the economic or industrial torts. These include the torts of direct inducement of breach of employment or commercial contracts, interference with contracts by unlawful means, intimidation (involving a threat to break a contract), simple conspiracy or a conspiracy to commit one of these torts.

  • A number of other torts may be committed in the course of industrial action, including inducing a breach of statutory duty, nuisance and trespass.

  • Trade union responsibility in respect of the industrial or economic torts is determined by a statutory formula which deems a union to be responsible for the acts of lay officials or shop stewards, irrespective of what the rules of the union say. Responsibility for the acts of such individuals can only be avoided if they are "repudiated" by specified senior union officers or the union's principal executive committee.

  • Legislation provides a limited "immunity" from civil legal action in respect only of the industrial or economic torts mentioned above. Thus "an act done by a person [including a trade union] in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only" that it involves one of those torts.

  • A "trade dispute" means a dispute "between workers and their employer" which "relates wholly or mainly" to one or more specified "trade dispute" matters.

  • This immunity is, however, automatically withdrawn from industrial action which takes one (or more) of the following forms:

    Action taken to enforce union membership

    Action to establish or enforce union-labour only or union recognition requirements

    Unlawful secondary action

    Unlawful picketing

    Action in support of employees who are dismissed while taking "unofficial" strike or other unofficial industrial action

  • Furthermore, in respect of trade unions, the immunity is lost if:

    Action is taken without the support of a valid ballot; or

    Action is taken without giving an employer the prescribed seven days' notice of industrial action following a ballot.

    The "trade dispute" issues1

  • 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 employment or the duties of employment, of one or more workers.

  • Allocation of work or the duties of employment between workers or groups of workers.

  • Matters of discipline.

  • A worker's 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.

    Independent scrutiny of ballots

    A union must now appoint a qualified independent scrutineer, ensure that he or she carries out his or her functions without interference, and comply with all reasonable requests made by the scrutineer. The scrutineer must prepare a report on the ballot as soon as reasonably practicable, but in any event within four weeks after the date of the ballot (s.226B TULR(C)A). The report must state whether the scrutineer is satisfied that:

  • there are no reasonable grounds for believing that any statutory requirements were not met;

  • the arrangements for producing, storing, distributing, returning and counting the voting papers included all reasonably practicable security arrangements to minimise the risk of any unfairness or malpractice; and

  • he or she was able to carry out his or her functions without interference.

    The union must, on a request made within six months of the date of the ballot, supply a copy of the scrutineer's report to any member entitled to vote in the ballot, or the employer of such a person. The report must be supplied as soon as practicable and must be provided free or for a reasonable fee (s.231B of the TULR(C)A).

    Note: The requirement to appoint a scrutineer will apply only where the number of members entitled to vote in the ballot or, where separate workplace ballots are held, the total number of members entitled to vote in those ballots, exceeds 50.

    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

    Associated British Ports and others v Transport and General Workers' Union [1989] IRLR 288 (HC); [1989] IRLR 305 (CA); [1989] IRLR 399 (HL)

    Bents Brewery Co Ltd v Hogan [1945] 2 All ER 570

    Blackpool & Fylde College v National Association of Teachers in Further and Higher Education [1994] IRLR 227

    British Broadcasting Corporation v Hearn [1977] IRLR 273

    British Railways Board v National Union of Rail, Maritime and Transport Workers 17.9.92 High Court

    British Railways Board v National Union of Railwaymen [1989] IRLR 349

    Crofter Handwoven Tweed v Veitch [1942] AC 435

    D C Thomson & Co Ltd v Deakin [1952] 2 All ER 361

    Dimbleby & Sons Ltd v National Union of Journalists [1984] IRLR 161 (HL); [1984] IRLR 67 (CA)

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

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

    Health Computing and another v Meek [1980] IRLR 437

    Heatons Transport (St Helens) Ltd v Transport and General Workers' Union [1972] IRLR 25

    Home Office v Evans 18.11.93 High Court

    London Borough of Newham v National and Local Government Officers' Association [1993] IRLR 83

    London Borough of Wandsworth v National Association of Schoolmasters/Union of Women Teachers [1993] IRLR 344

    Lumley v Gye (1854) 3 E & B 114

    MacShane and another v Express Newspapers Ltd [1980] IRLR 35

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

    Mersey Dock & Harbour Company v Verrinder [1982] IRLR 152

    Middlebrook Mushrooms Ltd v Transport and General Workers' Union and others [1993] IRLR 232

    Monsanto plc v Transport and General Workers' Union [1986] IRLR 406

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

    Norbrook Laboratories Ltd v King and Sands [1984] IRLR 200

    Post Office v Union of Communication Workers [1990] IRLR 143

    Rookes v Barnard [1964] AC 1129

    Tanks & Drums Ltd v Transport and General Workers' Union [1991] IRLR 372

    Thomas v National Union of Mineworkers (South Wales Area) [1985] IRLR 129

    Torquay Hotel Co Ltd v Cousins and others [1969] 1 All ER 522

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

    University of Central England and another v National and Local Government Officers' Association [1993] IRLR 81

    West Midlands Travel Ltd v Transport and General Workers' Union [1994] IRLR 578

    1 s.244(1)(a)-(g) of the TULR(C)A.