Trade dispute

TULRCA says that an act done “in contemplation or furtherance of a trade dispute” will not result in a legal claim 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 is not interference with a contract (Middlebrook Mushrooms v TGWU [1993] IRLR 232).

The first hurdle in establishing whether industrial action is lawful is to identify a trade dispute. This is defined narrowly in section 244 of TULRCA as a dispute relating “wholly or mainly to” terms and conditions; recruitment, suspension or dismissal; work allocation; discipline; facilities for union officials; or the machinery of negotiation. Only a “trade dispute” can lead to lawful industrial action.

A dispute over the impact of the national curriculum in schools on the working conditions of teachers was a trade dispute (LB Wandsworth v NASUWT [1993] IRLR 344). So was a dispute by teachers over the refusal to teach a disruptive pupil (P v NASUWT [2003] UKHL 8).

A dispute for political reasons, unconnected with terms and conditions of employment, for example, a refusal by technicians to broadcast to South Africa during the apartheid era (BBC v Hearn [1977] IRLR 213), is not a trade dispute.

As long as industrial action is in furtherance of a trade dispute, unions and members do not risk civil legal action, as long as it has been approved through a ballot that meets all the requirements listed on page 256.

For workers and unions to be protected by the legislation, the dispute must be with an employer in the UK.

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 it covers all those engaged by the employer under contracts personally to do work.

The requirement for industrial action to involve a dispute with the workers’ own employer makes secondary action illegal. It also makes lawful and effective industrial action increasingly hard to organise, owing to the growing fragmentation of UK workforces. In an early example in 1999, train operating company Connex was granted an injunction to stop industrial action by railworkers who were protesting about rail safety, on the ground that responsibility for safety lay not with their employer but with Railtrack, a separate company (Connex SE v RMT [1999] IRLR 249). As already indicated, the ECHR has refused to declare the UK’s ban on secondary action to be in breach of Article 11 (RMT v UK [2014] ECHR 366), even in limited circumstances to protect workers outsourced to a new employer under a TUPE transfer.

In Westminster City Council v UNISON [2001] IRLR 524, a dispute about the identity of a new employer was a trade dispute. However, a dispute over changes to terms and conditions that will only affect future workers is not a trade dispute with the workers’ own employer (University College London Hospital NHS Trust v UNISON [1999] IRLR 31, UNISON v The UK [2002] IRLR 497). This law makes it very difficult to bring industrial action prior to a TUPE transfer over future changes to terms and conditions intended by the transferee.

Under TULRCA, unions can be taken to court for calling or endorsing unlawful action not covered by the immunities. The definition of a trade dispute is very narrow. Apart from the limits already identified, the following forms of industrial action are specifically denied the protection of the immunities: action to enforce union membership (section 222); action in protest at a dismissal following earlier unofficial action (section 223); and action intended to pressurise the employer to force a supplier or contractor to recognise a union (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) can apply to the High Court for an order against the union to discontinue its authorisation or endorsement of industrial action. Such individuals do not have to show that they would have been entitled to be supplied with the goods or services in question.

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