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Handling industrial action

Updating author: Niran de Silva


  • Unlike the law in many countries English law does not give workers a positive right to organise or participate in industrial action.
  • A union will be liable if it induces its members to participate in industrial action without first complying with the balloting and notification requirements laid down in the Trade Union and Labour Relations (Consolidation) Act 1992. If the union complies with these requirements it will obtain immunity from liability from specified torts. (See The acts for which the union can be liable)
  • In order to obtain immunity the industrial action must arise out of a dispute on one of a number of specified matters. Further, the union must ballot all its members whom it reasonably believes will be called upon to take part in the industrial action and no others. Detailed provisions govern the conduct of any such ballot. (See Statutory immunity)
  • The union must notify any affected employer of its intention to conduct a ballot no later than a week before the ballot, and of the result of the ballot as soon as reasonably practicable after it has been held. It must then notify the employer of the proposed industrial action. (See Notification of a ballot/intended industrial action)
  • Under amendments introduced by the Employment Relations Act 1999 the union is no longer obliged to identify by name members being balloted or induced to take part in industrial action. (See The requirement to hold a ballot)
  • Further, provided that the union has complied with these requirements, any employee participating in industrial action will have additional protection from unfair dismissal for at least the first 12 weeks of any industrial action during which time his or her dismissal for participating in the industrial action will automatically be unfair. (Impact on employees)
  • If, however, employees take part in industrial action which is not supported by their union, it will be unofficial and they may be dismissed with relative impunity by the employer, having forfeited their right to claim unfair dismissal. (See Impact on employees)
  • Any employee participating in industrial action will usually (but not always) be in breach of contract and consequently subject to disciplinary proceedings including dismissal. If the employer has evidence that the union has authorised or endorsed the employee's participation in industrial action the union may be liable to the employer for the unlawful act ("tort") of inducing the employee to breach his or her contractual duty to work normally and consequently for any losses arising from that breach. Depending upon the circumstances the employer may also be able to obtain an injunction to restrain the union's continued inducement of employees to breach their contracts of employment. (See Impact on employees and The impact of the Employment Relations Act 1999)
  • However, a union may be protected from specified liabilities (including inducement of employees to breach their contracts) provided that it ensures that any industrial action it endorses arises out of a legitimate "trade dispute" and that the industrial action is lawful, by complying with detailed balloting and notification requirements. (See "In contemplation or furtherance of a trade dispute")
  • If an employer has evidence that a union has tacitly authorised or endorsed its members to take industrial action without going through the balloting and notification requirements then it can demand that the union repudiate the industrial action and, if it refuses to do so, the employer can issue proceedings against the union for an injunction and/or damages. (See The acts for which the union can be liable)

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