4. Taking industrial action

Notifying the employer that official industrial action is to be taken

At least seven days before it starts, the union must take reasonable steps to give the employer proper official notice of the intention to take, or continue taking, industrial action. Under section 234A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), the notice must include information that the union holds that will enable the employer to plan for the industrial action and to lawfully try to dissuade employees from participating.

The notice to the employer will need to state whether the industrial action will be continuous or discontinuous. If the action is to be continuous, the date on which the action will start must be given. If the action is to be discontinuous, the dates when employees will be involved must be given. The notice must also include:

• the total number of employees who the union believes will take part in the action;

• a list of the categories into which those employees fall (and the number of people in each category);

• a list of locations at which those employees work (and the number of people at, or associated with, each location);

• an explanation of how the figures provided have been reached; and

• a statement that it gives notice under section 234 TULRCA.

There is no requirement to provide the names of the affected employees. Also, if the employer makes deductions for payments to the union, a check-off list should be provided: either a list of the categories of worker and workplaces (with numbers) or such information as to enable the employer to identify the employees concerned.

When to take industrial action

Any industrial action must be taken promptly — specifically, within four weeks of the last day of voting (section 234 TULRCA). Time starts running from the last day of voting (RJB Mining v NUM [1995] IRLR 556). This tight timetable can be extended to up to eight weeks from the date of the ballot if the employer agrees. It is also possible to apply to the High Court for an extension — for a period of up to 12 weeks from the date of the ballot. Also, even if the date when the action should have begun is delayed due to legal proceedings, it has to be called within an overall 12-week period.

Who can call industrial action?

Although the law states that the ballot paper must specify, in the event of a “yes” vote, who can call action, the courts have stressed that common sense permits a certain amount of delegation. In a dispute called by the TGWU, the ballot paper indicated that the general secretary was the officer authorised to call the strike. However, the fact that the actual call was made by another official, after consultation with the general secretary, did not invalidate the ballot (Tanks & Drums v TGWU [1991] IRLR 372).

Implications of taking industrial action

Union and workplace reps

In theory, any individual worker, including a representative, can be sued by the employer for breaking a contract by taking industrial action. In practice, this is unlikely to happen since the employer can only claim damages limited to the actual loss caused by that employee and this is difficult to prove.

Workplace representatives can claim the section 219 immunities. They are protected if they induce someone to break or interfere with a contract (not just a contract of employment), or threaten to do so, provided that they are acting “in contemplation or furtherance of a trade dispute” (see above). They can picket their workplace, persuade others to strike, and ask workers not to deliver goods.

A more likely response from the employer to industrial action is dismissal, but even this is relatively rare. Furthermore, there is a right to be protected against unfair dismissal in at least the first 12 weeks of strike action. The most important thing is to ensure that any action taken is well organised and that union solidarity is maintained. Experience demonstrates that employers are more likely to use the law when they perceive workplace organisation to be weak.

Cost to unions

Where industrial action does not comply with the requirements of TULRCA, unions (not therefore benefiting from statutory immunity) will be vulnerable to claims for compensation. Employers may seek an anticipatory award (i.e. compensation for steps taken in preparation for unlawful industrial action — provided the action goes ahead), compensatory damages (losses caused by unlawful industrial action) and an exemplary/aggravated award (where the court is very critical of union conduct).

Although employers can claim for every separate action, there is a cap on the damages that unions can be asked to pay per episode. The cap (set out in section 22 TULRCA) relates to the size of the union:

The sums involved can be even larger where an injunction prohibiting the taking of industrial action has not been complied with, that is where the union is in contempt of court. Although individuals cannot be forced to work, unions can be prevented from organising industrial action which does not comply with TULRCA.