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“Official” or “unofficial” action
[ch 9: pages 255-256]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; 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).
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 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 started, if the union wishes to make it official it must first repudiate it and then hold a ballot (see page 256).
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 highlights the defects in the UK law:
Gate Gourmet had been in discussions with the T&G general union over proposed changes to staffing levels and working practices. Permanent staff were facing redundancy but the company brought in around 130 seasonal workers without consulting the union. Employees spontaneously assembled in the canteen 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. Because 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 (see page 265). Any strike action in support of an individual dismissed for taking part in unofficial action is not protected by the immunities, even if the later action is official and has been balloted on.