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Injunctions
[ch 6: pages 197-198]The injunction (interdict in Scotland) is the most popular legal remedy sought by employers in the context of industrial action. This is a court order to do or to stop doing something. It can be granted where:
• there is an allegation of unlawful action;
• a serious issue is to be tried;
• the employer alleges a harm greater than that which the employees would suffer by having to call off their action; and
• the employer alleges that damages awarded after a later full trial would not adequately compensate for the harm suffered.
In employment matters, an injunction is generally sought to halt industrial action and takes the form of an “interlocutory injunction”, in other words, a temporary measure until the case comes to trial. In practice, very few cases ever come to trial, because the injunction usually serves the employer’s purpose in stopping the action. Breaching an injunction can lead to contempt of court proceedings, and sometimes to sequestration (seizing) of union assets. This can happen where a union has called, or not repudiated, unlawful action (for example, action not supported by a lawful ballot). If the union repudiates the action, union funds are safeguarded, but members are placed at risk of selective dismissal. Normally, unions are the targets for injunctions, but they can also be taken out against one or more named individuals.
Section 236, TULRCA says that no court can compel an employee to do work or to attend work.
Section 221, TULRCA puts some limits on the grant of injunctions. It says that where one party is not present and it could be argued that the action is in furtherance of a trade dispute, the court should give that party every chance to attend before granting the injunction. In practice, courts have sometimes ignored this principle and granted injunctions in the union’s absence.
In an unusual example, in 2017 the boot was on the other foot, as general union Unite succeeded in obtaining an injunction on behalf of refuse workers in its dispute with Birmingham City Council:
An Acas settlement agreement was reached to resolve a long-running dispute involving Birmingham refuse workers and a joint press release was issued recording the employer’s agreement to the settlement terms, in particular confirming that there were “no redundancy steps in place”. As a result, Unite called off the industrial action. However, behind the scenes and in breach of the Acas agreement, the council issued redundancy notices, in some cases without giving proper contractual notice. The High Court granted the union an interim injunction to restrain the council from breaching the Acas agreement and workers’ contractual notice rights. The dispute was resolved before the date fixed for the full hearing, with the council agreeing to pay the union’s legal costs.
Taylor v Birmingham City Council [2017] EWCH 2576
Under section 235A, TULRCA, an individual who claims that the supply of goods or services has been affected by unlawful industrial action (for example, where there is no valid ballot) can request a court order requiring the union to discontinue its authorisation or endorsement of the 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.