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.