1. The law — basic principles and definitions

The law is created in two ways: statutory law or legislation (statutes) is made by Parliament passing Acts of Parliament. Common law is made by judges in courts of law. The judge gives a decision in a particular case and his/her reason for that decision. Authoritative rulings establish precedents (which in turn influence later cases). Statutes can override the common law.

Statutory law and the common law can overlap. In some areas there is no legislation, only the common law, while in others legislation may have swept away previous judge-made law. Furthermore, judges often “interpret” or “construe” legislation by clarifying its meaning where it is disputed.

The law is broadly divided into two categories — criminal law and civil law. The criminal law is enforced by the state — e.g. by prosecution by the police or officials such as health and safety inspectors. The civil law is enforced by citizens (or companies or trade unions) suing each other.

Most individual employment rights are to be found in the Employment Rights Act 1996 (ERA). But for trade union rights, the most important single piece of employment legislation (as amended) is the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Parliament established a special court — the employment tribunal — to deal with many areas of employment law. However, some aspects of employment law are dealt with in the ordinary courts rather than by a tribunal. Most claims for breach of contract are dealt with in the County Court or the High Court, for example, while criminal prosecutions for picketing offences go to either the Magistrates Court or the Crown Court.

Definitions

What is a strike?

A strike is defined by section 246 of TULRCA as “any concerted stoppage of work”. Under section 235(5) of the Employment Rights Act 1996 (ERA) it is “the cessation of work by a body of employed persons in combination.”

In the UK there is no positive legal right to strike. Instead workers are protected by “immunities” if taking specific forms of industrial action that would otherwise be unlawful. How these immunities operate is explained in Chapter 2 — and some workers including merchant seafarers, the police, soldiers and some apprentices — may be excluded.

What is industrial action?

Industrial action is a wider concept and includes strikes, go slows, boycotting certain goods/machinery/tasks, a ban on overtime and/or on call-outs (section 229(2A) TULRCA), as well as working to rule.

Working to rule

The terms of a contract must normally be committed in writing but can also be determined by examining how a contract has in practice been consistently performed. Specifically, where the written terms of a contract have, subsequent to signing, been implicitly varied (i.e. by custom and practice), those changes can be just as much a part of the contract as the original written terms. In this way, insisting on just working in accordance with the express written terms of a contract can amount to the taking of industrial action.

In the case of Burgess v Stevedoring Services Ltd 2002 UKPC 39, the Privy Council ruled that it is lawful for individuals to decline to do work which they are not contractually bound to do, although if the employee’s intention is to be wilfully obstructive, s/he will be in breach of contract.

However, in the case of Solihull v Metropolitan Borough Council v NUT [1985] IRLR 211, teachers declined to either supervise children at lunchtime, or to provide cover for absent colleagues. The High Court decided that those activities were not voluntary parts of the teachers’ contract and declining to carry out those tasks amounted to the taking of industrial action.