2. Immunities

Tort law is a body of law that addresses and provides remedies for civil wrongs not arising out of contractual obligations and is not enforced by the police. It is a civil action taken by one citizen against another and tried in a court in front of a judge (only rarely, in certain cases of defamation, with a jury). Actions under the law of tort can arise, for example, where:

• someone induces (or threatens to induce) another to breach their contract or do an act which breaches another’s contract (e.g. “blacklisting”);

• someone interferes with the performance of a contract, trade or business (even though the contract has not been breached); or

• two or more people conspire to do something unlawful with the intention of causing someone to suffer loss.

Trade disputes

Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) establishes immunity from most types of these claims. Specifically, an act done “in contemplation or furtherance of a trade dispute” is not actionable in the courts just because it makes someone break a contract or interferes with a contract. For example, a union leafleting campaign aimed at persuading consumers not to buy a product, in the context of a dispute, does not fall within the definition of interference with a contract (Middlebrook Mushrooms v TGWU [1993] IRLR 232).

The first test is to establish whether or not a “trade dispute” exists. This is defined in section 244 TULRCA as a dispute that relates “wholly or mainly to” terms and conditions; recruitment, suspension or dismissal; work allocation; discipline; facilities for union officials; or the machinery of negotiation or consultation (including recognition of the union).

In P v NASUWT [2003] UKHL 8, a headteacher’s decision that staff continue to teach a disruptive child was the subject of industrial action. The House of Lords found that the action was as a result of a disagreement over terms and conditions (i.e. a dispute over the job that teachers were hired to do): i.e. there was a trade dispute.

Where the industrial action is in furtherance of a “trade dispute” unions and members do not risk civil legal action provided that, if the action is authorised by the union, a ballot conforming to certain requirements has approved it.

The dispute has to be with an employer in the UK. And it must be a dispute between workers and their employer. The fact that the law refers to “workers” and not just “employees” means that it covers all those employed under personal contracts.

The fact that industrial action has to involve a dispute with the workers’ own employer has given employers the option of preventing industrial action by reorganising so that there is more than one employer. In a case taken in 1999, the train operating company Connex was able to get an injunction to stop industrial action by rail workers protesting about rail safety on the grounds that responsibility for safety lay with Railtrack, a separate company (Connex SE v RMT [1999] IRLR 249).

In 1999, the Court of Appeal held that employees calling for industrial action to win guarantees on the terms and conditions of future workers were not protected by section 244. The union took the claim to the European Court of Human Rights. The Strasbourg court, while accepting that a total ban on industrial action would be in breach of the European Convention on Human Rights, upheld the right of the state to impose limits on the right to take industrial action, provided these were proportionate (Unison v UK [2002] IRLR 497).

Overall, the definition of a trade dispute is very narrow and there are good grounds for believing it falls below the standards set by the United Nations’ International Labour Organisation (ILO).

Closed shop

In the past, unions had been able to operate what was known as a closed shop. Closed shop practices meant only union members or those agreeing to join a union would be employed and could also include trying to force employers to extend the benefit of a collective agreement or pay rises only to union members. However, industrial action with the purpose of achieving this is prohibited. Specifically, under section 222(1) TULRCA, unions’ statutory immunity for calling industrial action is lost if the reason for the action is to create or protect a closed shop.

Attempts to force suppliers to recognise unions

Industrial action called in order to force a supplier to only use union labour is not protected by TULRCA. In particular under section 225 TULRCA unions do not have statutory immunity for action which is designed to achieve this purpose. Additionally, even if a clause with a supplier specified that only union labour would be used, it would be unenforceable by virtue of section 144 TULRCA.

Official action taken in support of unofficial action

Where employees have been dismissed for taking part in unofficial action, industrial action in support of those dismissed colleagues is not protected by TULRCA. Specifically, even where the subsequent industrial action is official (i.e. one which might otherwise attract statutory immunity) unions will not — due to section 223 TULRCA — benefit from statutory immunity.

Sympathy action

Solidarity has always played an important role for trade unionists but this unity among workers has been undermined by 1980s legislation outlawing “secondary picketing“. Under section 224 TULRCA, a person inducing or threatening another to break a contract of employment, which is not with the employer party to the dispute, is not protected by the immunities. If a union threatens to picket other places of work this will be unlawful. The only form of solidarity action permitted is where workers picketing at or near their place of work persuade other workers not employed there not to deliver goods or to enter the work premises.

Politically-motivated action

A dispute that is purely for political ends is not covered by the section 244 definition and therefore cannot come within the section 219 immunities. This means that public sector workers striking over worsening terms and conditions because of proposed privatisation would be protected, but those striking against privatisation on political grounds alone would not.

The case of Mercury Communications v Scott-Garner and Post Office Engineering Union [1983] IRLR 485, occurred against a backdrop of the Conservative government’s privatisation programme. The union POEU (now CWU) instructed its members not to connect the company Mercury to the British Telecom network.

The issue for the Court of Appeal was whether that instruction was potentially legitimate — in response to a fear of redundancies and to protect members’ interests. The Court of Appeal found against the union — the action was not in contemplation or furtherance of a trade dispute. Specifically, on the basis of the evidence before the Court of Appeal, the union was campaigning against the liberalisation of the industry and the decision to privatise BT.

However, in Wandsworth LBC v National Association of School Masters and Union of Women Teachers [1993] IRLR 344, the Court of Appeal reached the opposite conclusion. NASUWT opposed government educational reforms and balloted its members on whether to boycott school tests. Wandsworth Council failed in its argument that this industrial action was in pursuit of political objectives. The Court of Appeal held that it was in connection with a desire to prevent an anticipated increase in teachers’ workload.

Similarly, where a council wanted to privatise its housing assessment and advice function, the resultant industrial action was challenged by the employer. In Westminster City Council v Unison [2001] EWCA Civ 443, the Court of Appeal decided that there was a trade dispute. This was because transferring staff to a private company would have a major impact on the individuals’ terms and conditions. Additionally there was no evidence that the action was on political grounds. However, a dispute about the terms and conditions of future workers is not covered.

Industrial action against European companies

The European Court of Justice (ECJ) has held that unions have a fundamental right to strike under European law, but also that industrial action may have to be “justified”. Specifically, the right may need to be balanced against employers’ rights to the freedom of movement of goods and services.

In International Transport Workers’ Federation (ITWF) & Finnish Seafarers’ Union (FSU) v Viking Line ABP Case C-438/05, Viking Line shipping company tried to re-flag the ferry Rosella to replace its Finnish crew with cheaper Estonians. The SFU and the ITWF organised a boycott of Viking, who claimed it was a breach of its right to the freedom of movement of goods and services. The ECJ held that the right to take collective action is a fundamental right but can constitute a restriction on the freedom of goods and services so must be justified. The case was sent back to the domestic court to decide whether the threat to the workers’ jobs was such that the action was needed to protect them.

In Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet and others Case C-341/05, a Latvian building company won a contract to build a school in Sweden and brought in Latvian workers. The Swedish building union blockaded the firm in order to get them to sign an agreement to bring their wages up to Swedish levels. The ECJ said again that the right to take collective action is a fundamental right but that it must not go beyond what is suitable for attaining its objectives. Furthermore, it held that action to give workers rights beyond those already given by the Posted Workers Directive cannot be justified.

In Rüffert v Land Niedersachsen C-346/06, a German company won the contract to build a prison. The contract specified that wages were to be paid at the level collectively agreed for the region. However, the German company sub-contracted the work to a Polish company which paid their workers less than half of that paid to the German workers on the site. On discovering this, Land Niedersachsen terminated the contract and imposed financial penalties. The ECJ decided that the requirement for a minimum salary level was capable of constituting a restriction on trade and was not justified on the grounds of protecting workers, balancing the cost of the social security system or protecting the independence of trade unions. In addition to Article 49 (freedom of establishment), the Posted Workers Directive prevented the requirement for higher wages on contracts for public work where there was no corresponding requirement for private sector contracts.