9. Industrial action

The law relating to industrial action covers not just strikes but lockouts, go slows, working to rule, and refusing to cross picket lines, regardless of whether or not industrial action is in breach of an agreed procedure. Overtime bans (even where overtime is voluntary) are normally considered as industrial action since the aim of those carrying it out is to put pressure on the employer to do, or not to do, something.

However, there are some rare circumstances where an overtime ban called in response to an industrial dispute, falls outside the definition of action in breach of contract. In one case, the Privy Council (the highest appeal court for a number of Commonwealth countries) held that industrial action which involved a union refusing to make up overtime gangs to work on the docks, could not be viewed as industrial action in breach of contract taken by the dockers themselves. The workers had played no role. They had not been asked to work and therefore could not be said to have refused (Burgess v Stevedoring Services [2002] UKPC 39 ([2002] IRLR 810)).

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 below, although some workers - merchant seafarers, post office workers, the police, prison officers, soldiers and some apprentices - may be excluded. For example, the Prison Officers Association is challenging the government's prohibition on prison officers striking at the European Court of Human Rights).

The Employment Relations Act 2004 places a legal obligation on employers to seek to resolve disputes where conciliation or mediation has been agreed. A person who has authority to resolve the dispute must represent employers at such meetings.

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" by balancing it against employers' rights to the freedom of movement of goods and services.

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 confirmed 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 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.

The European Commission subsequently attempted to clarify the relationship between the free movement of workers and the right to strike, but over a third of member states objected to the proposals forcing the Commission to reconsider.

The immunities

Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) establishes the "immunities". It says that 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 of 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.

A dispute over the impact of the national curriculum in schools on the working conditions of teachers, for example, falls within the definition (LB Wandsworth v NASUWT [1993] IRLR 344). So too does a dispute by teachers over the refusal to teach a disruptive pupil (P v NASUWT [2003] UKHL 8 ([2003] IRLR 307)).

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 the requirements listed below 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" (see Chapter 2) 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 railworkers protesting about rail safety on the grounds that responsibility for safety lay with Railtrack, a separate company (Connex SE v RMT [1999] IRLR 249).

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.

A dispute over a transfer to another employer was a trade dispute, according to the Court of Appeal in the case of Westminster City Council v UNISON [2001] EWCA Civ 443 ([2001] IRLR 524). It said that a dispute about the identity of a new employer was not a political dispute. However, a dispute over changes to terms and conditions which would only affect future workers, does not fall within the definition of a trade dispute.

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. UNISON took the claim to the European Court of Human Rights which, while accepting that a total ban on industrial action would be in breach, 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).

Under TULRCA, unions can be taken to court for calling or endorsing unlawful action not covered by the immunities. Overall, the definition of a trade dispute is very narrow. The following forms of industrial action are denied the protection of the immunities: action that seeks to enforce union membership (section 222); action in protest at a dismissal following earlier unofficial action (section 223); secondary action (see below); and action intended to pressurise the employer to impose a union recognition requirement on a supplier or contractor (section 225).

Under section 235A of TULRCA, an individual who claims that the supply of goods or services has been affected by unlawful industrial action (for example, action carried out without a fully complying ballot) may apply to the High Court for an order against the union to discontinue its authorisation or endorsement of industrial action.

Such individuals, who do not have to show that they would have been entitled to be supplied with the goods or services in question, can be assisted by the Certification Officer (see Chapter 5: Internal union matters).

Unions are not allowed to discipline workers who refuse to support industrial action.

Workplace reps

In theory, any individual worker, including a representative, can be sued by an 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 an employer to industrial action is dismissal (see How the law aids employers), 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.

Any days when employees are "locked out" by their employers are excluded from the calculation of the 12 weeks (Employment Relations Act 2004).

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. However, this is not to say that representatives will never be threatened with legal action. Employers have threatened writs and in some cases issued injunctions (see How the law aids employers).

"Official" or "unofficial" action

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 is among union members taking part in the industrial action of a trade union which has authorised or endorsed that action.

Section 20 of 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 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. Once unofficial action has commenced, if the union wishes to make it official, it must first repudiate it and then hold the ballot.

The union must, as soon as the action comes to its attention, do its best to give a copy of the repudiation, in writing, to every member taking part, or likely to take part in the action. A copy must also be given to the employer (section 21, TULRCA).

If the union has not repudiated unlawful action, or if it 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 (see below). The dispute at in-flight catering company Gate Gourmet in the summer of 2005 highlighted the defects in the UK law:

Employers may lawfully victimise unofficial strikers by dismissing selected individuals taking unofficial action (see below). 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.

Balloting

Sections 226-235 of TULRCA remove the immunities, even where the action otherwise is not unlawful, where there has not been a ballot which complies with all of the following requirements:

• it must fulfil the notice requirements to employers (see below);

• it must be a secret postal ballot, with the ballot paper sent to the member's nominated address and specifying the address and date for return (sections 227-230, TULRCA);

• at least seven days must be allowed for its return if first class (14 days if second class);

• an independent scrutineer, responsible for the eventual preparation of a report on the ballot arrangements, must be appointed and named on the ballot paper in all ballots of more than 50 workers (section 226);

• the form must specify who is authorised to call the action (section 229);

• voters must be asked whether they support strike action or action short of a strike. If being asked to vote on both, this must be in the form of two separate questions (section 229);

• if action short of a full strike (e.g. an overtime ban) is to be called, but may be followed by full strike action, workers must be asked two separate questions, one relating to the limited action and the other to the full strike action;

• members must be able to indicate by "yes"/"no" their views on the action proposed (section 226);

• the forms must be numbered consecutively;

• the form must tell employees of their rights not to be unfairly dismissed (see below);

• the form must contain the statement: "If you take part in a strike or other industrial action, you may be in breach of your contract of employment", regardless of whether or not there would be a breach (section 229);

• only those that the union is calling on to take action need to be balloted (section 227);

• separate ballots must be held for separate workplaces, unless the dispute involves only common terms. Where there is at least one individual who is affected by the dispute in each of the workplaces, the ballots can be aggregated into a single ballot. Ballots can also be aggregated where linked by occupation and employer(s) (section 228);

• where there have been separate ballots only those workplaces with a majority for strike action can be called out;

• as soon as possible after the vote, members should be informed of the number of votes cast, as well as those in favour, those against and those spoilt - one of the grounds used by British Airways in its attempt to prevent Unite members from taking industrial action (section 231); and

• industrial action must commence within four weeks of the last day of voting, counting that day as day one (RJB Mining v NUM [1995] IRLR 556). Employers and unions can agree to extend this period by an additional four weeks. 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 (section 234).

Those being balloted must be told on the ballot paper that any dismissal during an official, lawful dispute "will be unfair if it takes place fewer than 12 weeks after you started taking part in the action". They will also be told that a dismissal outside the 12 weeks can still be unfair.

It is important that all these rules are complied with. It is particularly important that the union ballots all those who should be included, because they are likely to be called on to take industrial action.

In the case of RMT v Midland Mainline [2001] EWCA Civ 1206 ([2001] IRLR 813), the Court of Appeal ruled that a ballot was invalid because not everyone had been balloted. The union was not aware that a group of workers was in the appropriate grade and had therefore not included them in the ballot.

The case of London Underground v RMT [1995] IRLR 636 also dealt with who should be balloted. The Court of Appeal held that the fact that the union had not balloted employees who were not its members prior to the ballot, but joined subsequently, did not invalidate the ballot. However, giving a vote to employees who have already taken voluntary redundancy, will probably invalidate the ballot (British Airways plc v Unite the Union [2009] EWHC 3541 (QB)).

Those being balloted are those whom the union considers will be called upon to take industrial action, but they do not all have to be directly affected by the issue over which the ballot is being called.

In the case of BT v CWU [2003] EWHC 937 ([2004] IRLR 58), the High Court held that the union had not breached the law when, in a dispute over a new productivity scheme, some of the members it balloted would not have been party to the new scheme.

There has to be a dispute in existence. The London Underground workers' union NUR (now RMT), was held by the High Court to have lost its protection by including matters which were not yet the subject of an industrial dispute in its strike ballot (London Underground v NUR [1989] IRLR 341).

The ballot does not have to define every single issue of the dispute (Associated British Ports v TGWU [1989] IRLR 399).

Where the ballot paper contains two separate questions, a "yes" majority is determined in relation to the numbers voting "yes" to that question. The fact that they may not represent a majority of all those completing the ballot paper is not relevant (West Midlands Travel v TGWU [1994] IRLR 578).

A union is entitled to campaign for a "yes" vote in a ballot. This does not amount to an unlawful call for, or endorsement of, industrial action before the date of the ballot (LB Newham v NALGO [1993] IRLR 83).

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 general union 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).

The High Court has ruled that a union is not expected to achieve 100% perfection in conducting ballots, so long as it has in place structures which enable it to properly ballot all the relevant workers (RJB Mining v NUM [1997] IRLR 621).

Additionally, section 232B of TULRCA says that where a union makes "accidental mistakes" in terms of those who are balloted, on a scale unlikely to affect the outcome, this will not invalidate the whole procedure (British Airways plc v Unite the Union [2010] EWCA Civ 669).

The Rail, Maritime and Transport Union (RMT) has lodged a claim before the European Court of Human Rights concerning the restrictions on taking industrial action in the UK. It is arguing that the draconian balloting and notification requirements breach the right to freedom of association.

The "place of work" for the purpose of ballots is not narrowly defined as the building occupied by the employee, according to the Court of Appeal in the case of Intercity West Coast v RMT [1996] IRLR 583. This meant that a single ballot covering all staff working at Manchester Piccadilly railway station was valid even though it covered two rail operating companies that had separate administrative buildings at the station.

The fact that more than one employer is involved does not mean that different ballots have to be organised, provided that all those being balloted share common terms and conditions (University of Central England and Kingston University v NALGO [1993] IRLR 81). This is also the case where they comply with the requirements regarding aggregated ballots (see above).

The four-week rule for commencing industrial action does not prevent a union 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 of 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.

Individual union members can use section 109 of TULRCA, to take legal action against their own unions where ballots have not been held before official action. They can use the services of the Certification Officer to do this (see Chapter 5: Internal union matters).

Requirements to notify employers

To comply with the legislation, a union must also give notice to employers at four key stages as set out below. These are contained in section 226A of TULRCA, as amended by the ERA 04. The provision for information about employees to be balloted was amongst the final provisions of the ERA 04 to come into force and became effective on 1 October 2005. The DTI, now the Department for Business, Innovation and Skills, Code of Practice Industrial action ballots and notice to employers, also came into force on that date and provides further information.

Notification stages

Stage 1 - when taking a decision to ballot for industrial action, a union must first notify the employer in writing at least seven days before the ballot that the union intends to hold a ballot, as well as the date when it believes the ballot will begin. Additionally, the union must provide either (a) a list of the categories of worker and workplaces, with numbers (unions need only provide numbers by reference to general job categories and need not be limited to using particular categories such as those used for pay purposes (National Union of Rail, Maritime & Transport Workers v Serco Limited t/a Serco Docklands and The Associated Society of Locomotive Engineers & Firemen v London & Birmingham Railway Limited t/a London Midland [2011] EWCA Civ 226)) or, (b) if the employer makes deductions for payments to the union, a check off list, either the same list as in (a) above, or such information as to enable the employer to identify the employees concerned.

Stage 2 - no later than three days before the ballot commences, the employer must have received a sample copy of the ballot paper.

Stage 3 - as soon as possible after the ballot result has been declared, the union has to notify the employer of the outcome.

Stage 4 - after the stage 3 notice, and at least seven days before the industrial action (which has been the subject of the ballot) begins, the union has again to notify the employer in writing giving information on the number, category or workplaces of the employees being called upon to take action; the date when the action will begin, or the date of each if planning a series of stoppages; a statement that it gives notice under section 234 of the TULCRA 1992; and the lists of categories of workers and workplaces as for Stage 1. The notice must also specify whether the action planned is continuous (giving the intended date when it will commence) or discontinuous (giving the intended dates when it will occur).

Picketing

Under section 220 of TULRCA, workers "in contemplation or furtherance of a trade dispute" can lawfully picket at or near their place of work, provided that the purpose is only peacefully to obtain or communicate information or persuade a person not to work.

But, as is the case with industrial action, the immunities only protect them from being sued for breach of contract. They do not provide protection for activities like trespass, or from action under criminal law (see below). 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).

Union officials representing members can picket their members' place of work. Those working from a number of different locations can lawfully picket any work location or alternatively their work headquarters, as long as they have actually worked from those different locations. If they 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). Workers dismissed while on strike have a continuing right to picket lawfully at their former place of work.

The law does not lay down the number who can picket. Often the police try to limit it to six, but they should issue a warning to this effect. This figure comes from the BIS Code of Practice: Picketing, which says: "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." Although the code is only advisory, a 1985 case gave police additional support in attempts to reduce numbers to six:

In the 2005 Gate Gourmet dispute, the Court granted an injunction to limit pickets outside the company's offices but not at other locations:

Pickets are more likely to face the criminal law (see below) than have their picket declared outside the section 220 protection. The criminal law is operated by the police and usually involves obstruction or breach of the peace offences. However, in the majority of cases pickets take place without the intervention of the law.

Supporting other workers

Solidarity has always played an important role for trade unionists, but has been undermined by legislation introduced since 1980 and still in force which outlaws "secondary picketing". Under section 224 of 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.

How the law aids employers

Not all employers will resort to the courts and the success or failure of a dispute can depend just as much on the level of workplace union organisation as on any legal threat from the employer. Nevertheless trade union reps need to understand how employers can use the law.

Injunctions

The injunction (interdict in Scotland) is the most popular legal remedy sought by employers. An injunction is a court order to do or to refrain from doing something. It may be granted where:

• there is an allegation of unlawful action;

• a serious issue is to be tried;

• the employer alleges a harm greater than that which the employees would suffer by having to call off their action; and

• where the employer alleges that damages awarded at a subsequent full trial would not adequately compensate for the harm suffered.

In employment matters, an injunction is generally used to try to halt industrial action and is given in the form of an "interlocutory injunction", i.e. an injunction intended as an interim measure until the case comes to trial. In practice, however, very few cases come to trial because the granting of the injunction itself will often serve an employer's purpose in stopping the action.

Failure to comply with injunctions can lead to contempt of court proceedings, and in some circumstances, to sequestration (seizing) of the union's assets. This can occur where a union has called, or not repudiated, unlawful action. If the union does repudiate the action, union funds are safeguarded, but members are then at risk of selective dismissal.

Normally unions are the targets for injunctions, but they can be taken out against one or more named individuals, although failure to name an individual properly can result in the injunction failing. If an injunction is served, those receiving it have to decide whether to comply or risk contempt of court. There have been few cases of contempt of court proceedings against individual union members and it should be noted that section 236 of TULRCA says that no court can compel an individual employee to do any work or to attend work.

Section 221 of TULRCA puts some limitations on the granting of injunctions. It says that where one party is not present, and it could be argued that the action is in furtherance of a trade dispute, the court should give every opportunity for that party to attend before granting the injunction. In practice, however, the courts have sometimes ignored this principle and granted injunctions in the union's absence.

Dismissal

Section 238A of TULRCA gives employees protection from dismissal during the first 12 weeks of any lawful, balloted, official industrial action. During these 12 weeks the protection is absolute, provided that no other unlawful act, other than the employee's breach of contract, has occurred. Any dismissal, regardless of how long the employee has worked, or their age, is automatically unfair unless a tribunal decides that the dismissal was not to do with the industrial action. Information about these rights must be included on the industrial action ballot paper.

The 12-week period can be extended if employees are still taking action but, in the view of the tribunal, the employer has not taken reasonable procedural steps to seek to resolve the dispute. This could be, for example, where there was an offer to re-open negotiations, or of mediation or conciliation that was offered and unreasonably refused. For further information see Chapter 10: Dismissal while on strike.

Deducting pay

Employers are generally entitled to deduct pay for any days when a worker is on strike, as a worker has no general right to be paid if s/he does not perform her/his contractual duties. The amount that can be deducted for each day's pay may be specified in the employment contract, or a collective agreement. If so, it is calculated according to those terms. In some cases there may be specific provision for the rate of deduction during industrial action.

If there is no contractual term, it can be argued that the amount of a day's pay should be based on the number of working days (rather than calendar days). This would be in line with the EAT's decision in the case of Leisure Leagues UK Ltd v Maconnachie EAT/940/01 [2002] IRLR 600 (confirmed in Yarrow v Edwards Chartered Accountants EAT/0116/07) that this method of calculation is good industrial relations practice.

If the strike action is for less than a full day, or there is industrial action short of a full strike, such as a boycott of some work, the employer may still be able to deduct a full day's pay, but not necessarily. It will depend partly on whether the employer has made it clear that they are allowing the employee to carry out only part of their duties.

In the case of Wiluszynski v LB Tower Hamlets [1989] IRLR 259, the Court of Appeal held that the employer could deduct a full day's pay even though the worker only refused to perform some of his duties. And in BT v Ticehurst and Thompson [1992] IRLR 219, the Court said the employer could send the workers home without pay when they refused to sign a statement saying that they would carry out their full duties, when industrial action was still ongoing.

However, in the case of Sim v Rotherham MBC [1987] IRLR 391, the High Court said that the employer was only allowed to deduct a part of Sim's salary that fairly represented the part of the work she refused to do. In the case of Cooper and others v Isle of Wight College [2007] EWHC 2831 (QB), the High Court said that the amount of pay an employer can deduct can only be as much as the amount the employee could sue the employer for if they had not been paid for that period.

Pay deductions because of industrial action are not protected under section 16 of the Employment Rights Act (ERA 96) (see Chapter 4: Deductions and underpayments) and regardless of whether a deduction is "lawful", a tribunal cannot rule on deductions from wages resulting from industrial action. However, it can make a finding of fact as to whether what has taken place amounted to industrial action, rather than just relying on an allegation by the employer that industrial action did occur (Gill v Ford Motor Co & others EAT/1006/03 ([2004] IRLR 840)).

Lockouts

Employers may try to anticipate a dispute by locking out workers. A lockout is defined in section 235(4) of the ERA 96 to include closures or suspensions by the employer with a view to forcing workers to accept specific terms or conditions.

Establishing when a lockout has taken place can present difficulties, but it may be important where individuals are claiming unfair dismissal, as employees who have been locked out may have a slightly better chance of pursuing a claim successfully. The Employment Relations Act 2004 extends the period of protection from unfair dismissal to include any time when employees are locked out. So if a group of workers wants to return to work after being on strike for 12 weeks and their employer refuses to let them back, they will still have dismissal protection. Locked out workers are treated in exactly the same way as strikers as far as state benefits are concerned (see below).

Criminal law

There are a few instances where the criminal law can be used against workers taking industrial action. In these circumstances the police may instigate the prosecution. 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.

There are four offences that may be committed by people involved in picketing. They are: the use of violence; persistent following; hiding tools; and picketing a person's home. Although the law is rarely used, it was relevant in a 1984 "work in".

Section 15 of TULRCA makes it unlawful for the union to pay an individual's fines for criminal activity or contempt of court. Section 16 gives individual members a right to go to court if union trustees permit the application of union funds for "unlawful purposes".

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.

State benefits for strikers

Although strikers are mostly excluded from claiming state benefits, they should be able to continue to receive Working Tax Credit and Child Tax Credit.

For all other benefits, anyone taking industrial action loses entitlement to claim. This also applies to anyone laid off because of industrial action, unless it can be shown that they have no direct interest in the dispute at their place of work. Also, if by custom and practice, any pay increase obtained by those on strike would be given to those laid off, individuals who have been laid off may well be disqualified from benefits.

The dependants of strikers or those laid off and disqualified have an entitlement to claim benefit. However, in calculating their "personal allowances" for the purpose of assessing entitlement to means-tested benefits (for example, Employment and Support Allowance), a deduction of £38.00 a week will be made (2012-13). This is supposed to represent the amount the striker would be receiving in union strike pay, but is deducted regardless of whether or not any strike pay is actually received. Any strike pay over that amount is classed as income and taken fully into account when assessing entitlement. The dependants of non-union members who are on strike have the same amount deducted.