9. Picketing

Civil law

Picketing is where employees encourage others (in breach of their contracts) not to attend work during a trade dispute. Section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) gives statutory immunity to some individuals, but only where the picketing is in order to peacefully:

• obtain information;

• communicate information;

• persuade someone to work; and/or

• persuade someone not to work.

As is the case with industrial action, the immunities only protect individuals from being sued for breach of contract, they do not provide protection for activities like trespass, or from action under the criminal law. Also, the only individuals who have statutory immunity for picketing are those who are:

• at or near their own place of work (workers based at multiple locations can picket at the place at which they work/ the place from which their work is administered — although if those sites were merely “occasional ports of call” they would not be regarded as the individual’s place of work (Union Traffic v TGWU [1989] IRLR 127);

• at their former place of work (i.e. for those who previously worked for the employer and were dismissed for a reason connected with the dispute); or

• trade union officials accompanying union members whom they represent.

If workers are not able to picket immediately in front of their workplace, the requirement that it is “at or near” allows some leeway. Workers dismissed by a company sited on a trading estate were unable to picket their own workplace so they mounted a picket on the entrance to the estate. The Court of Appeal ruled that this was “at or near” their place of work (Rayware v TGWU [1989] IRLR 134).

However, the decision in News Group Newspapers Ltd v SOGAT (No. 2) [1986] IRLR 337 was more restrictive. This case concerned the relocation of Rupert Murdoch’s publishing interests from Fleet Street to Wapping in East London. One of the many arguments deployed by Murdoch’s lawyers was that the picketing at Wapping could not benefit from the statutory immunity as the pickets’ place of work was elsewhere (i.e. Fleet Street). The High Court agreed (in a decision later endorsed in Union Traffic Ltd v TGWU [1989] IRLR 127) that the picketing was not protected by the statutory immunity.

In 2002, the DTI (now Department for Business, Innovation and Skills) produced a Code of Practice on Picketing. A copy of the Code is available at: www.berr.gov.uk/files/file23914.pdf.

One of the most controversial aspects of the Code is the recommendation that the number of pickets at the workplace entrance should not be greater than six: “Pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to, or exit from, a workplace; frequently a smaller number will be appropriate.”

The Code is not binding and a failure to observe its provisions does not render picketing automatically unlawful. However, breaches of the Code are admissible in evidence and may well be raised in any subsequent legal action. During the 1984-85 miners’ strike, pickets were posted at a pit in South Wales. Although six pickets stood outside the colliery gates, about 60 demonstrated across the road. The court ruled that the mass demonstration was a common law nuisance (Thomas v South Wales NUM [1985] IRLR 136).

In the 2005 Gate Gourmet dispute, the court granted an injunction to limit pickets outside the company’s offices but not at other locations (Gate Gourmet London Ltd v TGWU [2005] EWHC 1889 (QB) ([2005] IRLR 881). Specifically following an application by the company, the High Court granted an injunction restricting the number of pickets outside the company’s Heathrow offices to six and limiting picketing so that the workers could not approach employees going to and from work. However, it refused the application to limit the number of pickets near the entrance to the nearby Gate Gourmet plant at Beacon Hill. The injunction was made against the union as well as individuals because, although there had been no ballot, union officials were present at the pickets, were aware of what was going on, and the union had not repudiated (disowned) the action.

Criminal Law

Pickets are more likely to face the criminal law than have their picket declared to be outside the section 220 protection. Even so, in the majority of cases, pickets take place without the intervention of the law.

Workers who are picketing may face obstruction or breach of the peace charges. These can include unreasonable obstruction of the highway and/or wilful obstruction of a police officer. Under the Public Order Act 1986, individuals may be charged with disorderly conduct, threatening behaviour, riot, violent disorder or affray. But the standard of proof required to convict on these charges is “beyond reasonable doubt”, a much higher requirement than applies to civil law cases.

In Galt v Philip and Others [1984] IRLR 156, laboratory staff employed by Fife Health Authority occupied their lab and began a “work in” as part of a long-running dispute. The “work in” ended when the police smashed down the door, arrested them and charged them. The court ruled that the workers were not protected by the immunities because these only applied to civil action.

Conspiracy is another criminal charge available under the Criminal Law Act 1977. Conspiracy involves the agreement by two or more people to pursue a course of action which would necessarily involve the committing of an offence. The penalty for conspiracy cannot be higher than for the offence itself, and under section 1, unlawful civil action in the course of a dispute does not give rise to a conspiracy charge.

Certain behaviours attract criminal penalties. Specifically, behaviour which compels a person, including immediate family, into doing or not doing something which they’re entitled to do (e.g. going to work). Criminal penalties apply under section 241 TULRCA if:

• violence is used;

• that person is intimidated;

• that person is persistently followed from place to place;

• that person is followed by two or more people in a disorderly manner, or through any street/road;

• that person’s house, place of work, place of business, the place where that person happens to be (or even the approach to those places) is beset or simply watched;

• that person’s property is injured; or

• tools, clothes or other property owned or just used by that person are hidden (or he is deprived of their used or hindered from using them).

Unless authorised under section 220 TULRCA, this very broad range of offences (which have their origin in the Conspiracy and Protection of Property Act are punishable by up to six months in prison or a maximum fine of £5,000.