Injunctions 



The injunction (interdict in Scotland) is the most popular legal remedy sought by employers. An injunction is a court order to do or to refrain from doing something. It may 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



• where the employer alleges that damages awarded at a subsequent full trial would not adequately compensate for the harm suffered.



In employment matters, an injunction is generally used to try to halt industrial action and is takes the form of an “interlocutory injunction”, in other words, a temporary measure until the case comes to trial. In practice, however, very few cases 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 (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 (although failure to name an individual properly can result in the injunction failing). If an injunction is served, those receiving it have to decide whether to comply or risk contempt of court.


Section 236, TULRCA says that no court can compel an employee to do work or to attend work.



Section 221, TULRCA puts some limitations 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 every opportunity for that party to attend before granting the injunction. In practice, however, the courts have sometimes ignored this principle and granted injunctions in the union’s absence.



Under section 235A, 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 valid 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.