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Official or unofficial action
[ch 6: pages 171-172]The law describes industrial action as “official” where the employee belongs to a trade union which has authorised or endorsed the action; or is not a union member but is among union members taking part in industrial action authorised or endorsed by the union.
Section 20, TULRCA states that action shall be taken to have been authorised or endorsed by a trade union where it was authorised or endorsed 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).
“Any other committee” includes any group of people constituted under union rules (section 20(3)(a), TULRCA). Where a group organises or co-ordinates industrial action, any decision by the group, or an individual within the group, comes within the definition of “any other committee”.
A union is legally responsible for all industrial action embarked on in its name, including any industrial action authorised by local union officials, even if the union views the action as unofficial because it breaks union rules. To avoid liability, the union, through its executive, president or general secretary, must repudiate (disown) the action “as soon as reasonably practicable” after finding out about it, by following strict rules set out in section 21, TULRCA.
The union must do its best to give a copy, in writing, of the repudiation to every member taking part, or likely to take part in the action and also to the employer.
Industrial action that has not been authorised or endorsed by the union or that has been repudiated is called “unofficial action”. Once unofficial action has started, if the union wants to make it official it must first repudiate it and then hold a lawful ballot (see page 174).
A union that has not repudiated unlawful action, or that has authorised industrial action not in compliance with all the detailed legal rules, leaves itself open to legal action by the employer or a customer or supplier of the employer, including an injunction. The dispute at in-flight catering company Gate Gourmet in summer 2005 highlights the defects in UK law:
Gate Gourmet had been in discussions with the T&G general union (now part of Unite) over proposed changes to staffing levels and working practices. Permanent staff were facing redundancy, but the company recruited 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.
Sehmi v Gate Gourmet London Ltd; Sandhu and others v Gate Gourmet London Ltd [2009] EAT/264/08, EAT/0265/08
Employers can lawfully victimise unofficial strikers by dismissing selected individuals who are taking unofficial action. Unofficial action is not protected by the immunities, and strikers and pickets in unofficial action have no right to claim unfair dismissal, subject to some exceptions (section 237(1), TULRCA, see Chapter 10, page 344, Dismissal and Industrial Action).
Any strike in support of someone who has been dismissed for participating in unofficial action is not protected by the immunities, even if the later action is official and has been balloted.