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).


Industrial action can only be lawful if it concerns 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 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. 


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. The High Court rejected an application by the Department for Education for an injunction to stop a one-day strike organised by the NUT (15 March 2016, Judgment of Mr Justice Kerr).


As long as industrial action is in furtherance of a trade dispute, unions and members do not risk civil legal action, but only as long as all the statutory requirements for lawful industrial action have been met (see below). These statutory requirements, which concern balloting and notice, will become even more limiting and complicated once new restrictions in the Trade Union Act 2016 (TUA16) come into force, for example, the addition of a new legal requirement to appoint a “picket supervisor”. 


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 own 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. This limitation makes lawful, effective industrial action increasingly hard to organise, due to growing workforce fragmentation. In an early example in 1999, train operating company Connex was granted an injunction to stop industrial action by railworkers 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). 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 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 intended by the transferee. 


Under TULRCA, unions can be taken to court for calling or endorsing unlawful action that is not covered by the immunities. 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 ask 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.