5. Halting industrial action

Suspension of industrial action

The four-week rule for commencing industrial action does not prevent a union from suspending action and then re-imposing it (Monsanto v TGWU [1986] IRLR 406). However, the gap between the suspension and re-imposition of the action should not be too long, or indicate a change in tactics by the union; otherwise it might find that the subsequent action is not covered by the ballot (Post Office v UCW [1990] IRLR 143).

Alternatively, there can be agreement over the length of any suspension of action. Under section 234A TULRCA, unions can suspend industrial action for talks and then resume it without having to go through the balloting procedure again, provided there is agreement from the employer for this course of action, normally with the aim of trying to restart negotiations. Where this happens the union has to agree not to re-authorise industrial action before an agreed date.

Union authority for industrial action withdrawal

If the union has to withdraw its endorsement for industrial action, the employer must be notified. If the union is subsequently able to endorse industrial action as being lawful, notification of individual action must be given afresh to the employer. However, fresh notification will not be necessary where the union agreed with the employer that it would temporarily withdraw support for industrial action. The union will also need to have agreed, and kept to, a suspension date (the date from which action is suspended) and a resumption date (the earliest day from which industrial action can be recommenced).

Industrial action official unless repudiated

The law describes a strike or any other kind of industrial action as “official” where the employee is a member of a trade union and the union has authorised or endorsed the action in question; or the employee is not a member of a trade union, but there are members of a trade union which has authorised or endorsed industrial action, among those taking part in that action.

Section 20 TULRCA states that the action shall be taken to have been authorised or endorsed by a trade union where it was taken by:

• a person empowered by the rules to do, authorise or endorse acts of the kind in question;

• the principal executive committee or the president or general secretary; or

• any other committee of the union or any other official of the union (whether employed by it or not).

And where a group of people organises or co-ordinates the industrial action, any decision taken by the group or an individual of the group comes within the definition of “any other committee”. Section 21 TULRCA also makes unions legally responsible for all industrial action, including that authorised by local representatives, even if the union views their action as unofficial because it is contrary to union rules. However, the union may “repudiate” (disown) the action. Specifically, under section 21 TULRCA, in order to avoid being financially liable, unions need to:

• write as soon as reasonably practicable to the relevant individuals/committee repudiating the industrial action: the written repudiation coming from the General Secretary, President or Executive Committee. The notice to the union members must include the following set statement:

“Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial action taken in response to it (or them). If you are dismissed while taking unofficial action, you will have no right to complain of unfair dismissal.”

• demonstrate that sufficient steps have been taken to notify the relevant individuals of the repudiation; and

• also inform the employers that the union repudiates the industrial action.

If the union has not repudiated unlawful action, or if it itself has authorised action not in compliance with all the legal rules, it leaves itself open to legal action brought by the employer or a customer or supplier of the employer. This can be by way of an injunction.

The dispute at in-flight catering company Gate Gourmet in the summer of 2005 highlighted the defects in the UK law. Gate Gourmet had been in discussion with the T&G general union over proposed changes to staffing levels and working practices. While permanent staff were facing redundancy, the company brought in around 130 seasonal workers without consulting the union. Employees assembled in the canteen for a meeting to find out what was happening, but managers told them that if they did not return to work within three minutes they would be sacked. The company then sacked 677 workers. As there had been no ballot or notification procedure, the action was unofficial and the employees were not protected by unfair dismissal laws. Balloting after the event would not have made the action lawful.

Employers may lawfully victimise unofficial strikers by dismissing selected individuals taking unofficial action. Any subsequent strike action in support of an individual dismissed for taking part in unofficial action automatically loses the protection of the immunities, even if the later action is official and has been balloted on.