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.

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.

Some employees are forbidden by law to strike. These include members of the armed services, prison officers and police officers. The newest addition to this list is civil servants working for the National Crime Agency. They are prevented from striking under section 13 of the Crime and Courts Act 2013.

Some forms of industrial action are absolutely banned. The most important is secondary action — industrial action in support of the workers of another employer. This has very important implications as a result of the increasing fragmentation of the workforce and the growing use of outsourcing, sub-contracting, agency workers and false self-employment, because it means that workers who work alongside each other, sometimes even doing the same job for the same organisation, cannot lawfully act in support of each other’s industrial action because they have different employers.

As a result, for example, after a TUPE transfer, it means that small groups of transferred employees can be left unable to defend their terms and conditions through industrial action because they lack the strength in numbers to be able to impact on the employer’s business. In a bitterly disappointing judgment, the European Court of Human Rights has ruled that the UK’s ban on secondary action is lawful and not a breach of Article 11 of the European Convention on Human Rights — the right to freedom of association (RMT v UK, Application No. 31045/10).