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 with the government will not be 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). 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).



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


The expression “in contemplation or furtherance of a trade dispute” is largely subjective. It refers to the state of mind of the person who takes the action. The test 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).


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). Extra requirements added by the TUA 16 – especially the new requirement for the ballot paper to include a “summary” of the dispute – are expected to produce more litigation over whether or not the action is over a trade dispute (see page 194). 



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



The dispute must be between “workers” (not just employees) and their own employer (see Chapter 2).


The requirement for industrial action to involve a dispute with the workers’ own employer makes secondary action illegal. It also makes 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, because 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.