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 induces someone else to break a contract or interferes with the performance of a contract (section 219, TULRCA). 


A union leafleting campaign aimed at persuading customers to boycott a product or service or to support a union’s campaign is not unlawful interference with a contract, or an inducement to breach a contract under section 219, TULRCA. This is because the leaflet is targeting the employer’s customers, who are not party to the contract and can make their own minds up whether or not to buy a relevant product or service (Middlebrook Mushrooms v TGWU [1993] IRLR 232).




To be lawful, industrial action must be in contemplation or furtherance of a trade dispute. “Trade dispute” is defined narrowly 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 (section 244, TULRCA). 




A dispute with the government is not protected unless the government is the employer (London Borough of Wandsworth v NASUWT [1993] IRLR 344) or decides the working conditions that are in dispute (section 244(2), TULRCA).



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), as was a dispute by teachers over the refusal to teach a disruptive pupil (P v NASUWT [2003] UKHL 8). In Secretary of State for Education v the NUT [2016] IRLR 512, a dispute over “inadequate funding levels which cause detrimental changes to terms and conditions within the sixth-form college sector” was a trade dispute and not a political strike. 
 




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. 




Disputes between workers cannot be a trade dispute. It must be a dispute with their employer.


Secondary action is illegal. It is not a dispute with the workers’ own employer. The ban on secondary action can make effective industrial action harder to organise due to growing workforce fragmentation (workers working alongside each other but for different employers). In an early example in 1999, train operating company Connex was granted an injunction to stop industrial action by railworkers protesting about rail safety, because responsibility for safety lay not with their employer but with Railtrack, a separate company (Connex SE v RMT [1999] IRLR 249).



The European Court of Human Rights (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 the limited circumstances of a strike to protect the terms and conditions of newly outsourced ex-colleagues following a TUPE transfer. 


In Westminster City Council v UNISON [2001] IRLR 524, a dispute over 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). The law makes it very difficult to bring industrial action prior to a TUPE transfer over future changes to terms and conditions planned by a transferee and careful legal advice is always needed.


Only “workers” can engage in a lawful strike. The genuinely self-employed are not “workers”. See Chapter 2: False self-employment, and Chapter 5, page 135. 



The expression “in contemplation or furtherance of a trade dispute” is largely subjective. It will be satisfied if the union honestly and reasonably believes that the action will advance its objectives in the dispute (Express Newspapers v McShane [1980] AC 672).



The dispute must already exist when the ballot is called. For example, the former NUR union (now part of the RMT) lost its protection from the immunities by including matters in the ballot that were not yet the subject of an industrial dispute (London Underground v NUR [1989] IRLR 341). 






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