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Official or unofficial action
[ch 6: pages 189-190]The law describes industrial action as “official” where the employee is a member of a trade union which has authorised or endorsed the action; or the employee is not a member of a trade union, but is among union members taking part in industrial action authorised or endorsed by the union.
Section 20, TULRCA states that the 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).
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”.
Section 21, TULRCA makes unions legally responsible for all industrial action, including that authorised by local representatives, even if the union views the action as unofficial because it is contrary to union rules. But the union may repudiate (disown) the 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 below).
If a union wishes to repudiate the action, it must do so as soon as it comes to its attention. 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. A copy must also be given to the employer (section 21, TULRCA).
If the union has not repudiated unlawful action, or if it has authorised action not in compliance with all the legal rules, it leaves itself open to legal action by the employer or a customer or supplier of the employer, including by way of an injunction (see below). The dispute at in-flight catering company Gate Gourmet in summer 2005 highlights the defects in the UK law:
Gate Gourmet had been in discussions with the T&G general union over proposed changes to staffing levels and working practices. Permanent staff were facing redundancy, but the company brought in 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, EAT/264/08, EAT/0265/08
Employers can lawfully victimise unofficial strikers by dismissing selected individuals who are taking unofficial action. Any strike action in support of someone who is dismissed for participating in unofficial action is not protected by the immunities, even if the later action is official and has been balloted.
Unofficial action is not protected by the immunities, and pickets in unofficial action have no right to claim unfair dismissal (section 237(1), TULRCA.
There are some exceptions. See Chapter 10, page 372, Dismissal and Industrial Action.