Legislative Protection – The Right to Strike

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International standards impacted the UK’s legislative protection of the employee’s individual right to strike

1. Introduction

1.1 Aim

The aim of this thesis is to consider the current legislation in the UK on the right to strike to consider whether or not such right exists and if so where it can be found. The thesis will then look at European and International standards and assess how they have impacted on UK law and to what degree they have been followed by UK government. It will be concluded that UK law lags far behind many other countries and that the legislation does not empower employees in the UK with a right to strike. It will be argued that because of international standard and legislation the situation has improved however that a lot more needs to be done before we share the same kind of freedom as our European and International counterparts.

1.2 Introduction – The Right To Strike

It is almost impossible in the UK to take industrial action which is lawful. In some circumstances and for certain legal purposes immunities will be accorded to strikers; but contractual liability will always remain therefore as a general rule there is no right to strike and industrial action in the UK is unlawful. The slave has to work whether he likes it or not. Slavery denies to the enslaved their basic human rights. The slave is treated by the master like an unfeeling production unit, is kept and maintained while productive. The principle of the right to strike dates back to the days of slavery where a man had no right to withdraw his labour. The free man may withdraw his labour. He enters into a voluntary agreement with someone else in which he agrees to carry out some specified work in return for a specified amount of pay. If there is disagreement between them he may freely withdraw his labour. This is a most essential right, the right of every citizen, of every worker, to associate with others and withdraw his labour, to go on strike.A workforce which cannot withdraw its labour at will is either oppressed or enslaved. A free people have the right to strike and can exercise this right, supporting those who exercise it.

As Davidmann points out “The extent to which the right to strike is acknowledged and supported by a government’s enacted legislation states clearly the extent to which its political philosophy and policies are authoritarian, class-biased and oppressive and the extent to which the working population can be subjected to oppression and exploitation through need”.

There is a scale of management and government which ranges from ‘fully authoritarian’ at one end to ‘fully participative’ at the other One can place on this scale any system of running a company or of governing a country. This is done by considering to what extent decisions are being made at the various levels or whether people merely follow orders, to what extent people are free to withdraw their labour, are free to strike, to what extent authority is centred at the top, or where the balance of power lies between management and worker. The position where an organisation is placed thus depends on the balance of authority between ruler and ruled, between owner and worker, between the establishment and the population. And so the right to strike, and the extent to which people can strike, are fundamental freedoms which distinguish a participative government or management from an authoritarian one. In most European countries the right to strike is enshrined in, and protected by, a written constitution. The contract of employment of those who strike is considered suspended for the duration of the strike. It is not considered to have been broken.~

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The UK has no written constitution and the right to strike is not protected. Under current legislation any striker in the UK is considered to have broken his contract of employment as all those on strike may be sacked together without compensation. They may be sacked selectively when the strike is ‘unofficial’. The lack of protection applies regardless of the cause of the strike. So where an employer deliberately engineers a dispute it is the workforce which may be in breach of contract. The workforce is then exposed to dismissal without compensation, may lose redundancy payments, may be disqualified from unemployment benefit, and all without remedy for unfair dismissal.

The constitutions of France, Germany, Italy and Spain, to mention a few, protect the right to strike of the working population. The contract of employment is only suspended, not broken, during a strike.

With the United States it is more difficult to determine to what extent authority is centred at the top and to what extent it is balanced by the authority of the working population exercising their power through the withdrawal of their labour. The Taft-Hartley Act limits the right to strike, seemingly shifting responsibility for declaring a strike from the factory floor to the union head office. But an employer may not dismiss a striking employee during a lawful strike and, if he does so, must reinstate him.

The right of workers to withdraw their labour is guaranteed by a number of international treaties. As Novitz points out the “mounting awareness that modern erosion of democratic participation and human rights protection, including provision for workers’ rights, necessitates greater co-ordination between international and European organisations and combined action ” Different approaches to strike regulation at different levels can be problematic, she points out, “to the extent that regional organisations have the capacity to undermine the authority and application of global minimum standards “. Such disparities “can make national laws relating to industrial action, even those complying with ILO standards, vulnerable to the application of other EC treaty provisions or directives, such as those relating to free movement of goods or barriers to competition.”

The freedom of workers to withdraw their labour has been justified on a number of grounds; the most important of these is its recognition as a fundamental human right . It has been described as being complementary to freedom from slavery and forced labour given that (at its extreme) denial of the freedom involves being forced to work against ones better judgement . There is also a democratic argument that is to say that such a freedom is intrinsic to the notion of democracy, a view reinforced by the fact that, conversely, it is banned in totalitarian societies. It may also be viewed specifically within the context of industrial relations as giving rise to an “equilibrium argument”, which maintains that the concentrated power of capital, expressed in the capacity of employers to hire and fire workers and close down an enterprise, can only be matched by workers acting in concert. As Deakin and Morris point out “within this framework the collective withholding of labour is a vital weapon in an economic conflict which imposes cost in both parties: disrupted production on the one hand, lost wages on the other “

The ‘autonomous sanctions” argument sees the right to recourse to industrial action as integral to the concept of collective bargaining as an autonomous norm-making system. Thus “those who have made the autonomous rules should wield the sanctions… ” This view was recognised by Lord Wright who described the right to strike as “an essential element in the principle of collective bargaining. “

The right to strike is protected at an international level but only in treaties that deal explicitly with socio-economic rights, rather than civil and political rights. Therefore it can be seen that the International Covenant on Economic, Social and Cultural Rights guarantees the right to strike, although because it is subject to the proviso that “it is exercised in conformity with the laws of the particular country “, the substantive content of the right is limited.

At European level the European Social Charter requires contracting states to recognise “the right of workers and employers to collective action in cases of conflict of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into. ” There is no right to strike contained within the ILO conventions No 87 on Freedom of Association and Protection of the Right to Organise or 98 on the Right to Organise and Collective Bargaining. The reason for this omission is not entirely clear but they have been described as “procedural difficulties, political differences, the feeling that specific elaboration was unnecessary, and workers’ fears that specifying a right to strike would also lead to its restriction. ” However the reality is that the right has been derived by the supervisory bodies from general freedom of association principles; the Committee of Experts on the Application of Conventions and Recommendations has consistently affirmed that this is one of the essential and legitimate means by which workers and their organisations may promote and defend their economic and social interests and, as such it is an integral part of the free exercise of he rights guaranteed by Conventions 87 and 98. On the basis of this view they have developed an extensive jurisprudence as to what this right entails. As will be discussed the UK law falls short of these standards in a number of significant respects.

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The right to strike in the UK is however subject to certain restraints and it has been said that you cannot make a strike effective without doing more than is lawful. There are several ways in which common law and statute now regulate and control strikes:

  1. breach of the worker’s contract of employment;
  2. liability of unions for economic torts of inducing breach of contract, or trade or business intimation and conspiracy;
  3. Government emergency powers;
  4. Residual criminal liability, which is mainly concerned with conspiracy and control of picketing;
  5. A union member’s right to remove authorisation by the union for strikes and industrial action held without a proper ballot;
  6. The right of a member to complain of indemnification by his union of individuals who take part in industrial action .
  7. The right of a member to complain of indemnification by his union or individuals who take part in industrial action
  8. The right of a member to complain of unlawful application of union assets by trustees of unions

2. UK Law and the Right to Strike

2.1 The Trade Union and Labour Relations (Consolidation) Act 1992

It is important before discussing in detail how many of these provisions work in practice, to set out the relevant provisions of the Trade Union and Labour Relations Act, S219 of the act, as amended provides that:

  1. An Act done by a person in contemplation or furtherance or a trade dispute shall not be actionable in tort on the ground only –
    1. that it induces another person to break a contract or interferes with its performance; or
    2. that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance.
  2. An agreement or combination by two or more persons to do or procure the doing of an act in contemplation or furtherance of a trade dispute is not actionable in tort if the act is one which if done without any such agreement or combination will be actionable in tort
  3. Nothing in subsections (1) and (2) prevents an ac done in the course of picketing from being actionable in tort unless it is done in the course of attendance declared unlawful by section 220 .
  4. Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirements of ballot before action by trade union) and 234A (requirement of notice of employer of industrial action); and in those sections “not protected” means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person excluded from that protection as respects that person.
  5. The act also provides for statutory intervention in the area and prohibits unions indemnifying individuals for penalties for criminal offences or for contempt of court. At one time several unions made provision in their rules for indemnifying members, in particular officials, for specified unlawful acts. This practice is now prohibited and any payments made are recoverable from the recipient at the suit of the union or an individual member on behalf of the union where he or she claims the unions failure to act is “unreasonable “. This was condemned by the ILO Committee of Experts in its 1989 report in the following terms:

    “The Committee has consistently taken the view that legislative provisions which are intended to ensure sound administration and the honest and efficient management of union funds and other funds and assets are not incompatible with the Convention…. However such provisions should not be of such a character as to deprive unions of he right to draw up their constitutions or rules and to organise their administration and activities free of interference of the public authorities – nor should they deny trade unions the right to utilise their funds as they wish for normal and lawful trade union purposes. [this provision] appears to do both of these things “

    In more recent reports, however the Committee took a less confident tone, appearing to acknowledge that the government’s case which included the argument that where penalties were imposed on an individual, rather than a union, this would “imply a clear finding of wilful and unlawful action by the individual “. However it is maintained the view that indemnification of legal liabilities incurred on behalf of the union should be possible. The European Committee of Social Rights also take the view that in principle unions should be free to use their property as they consider appropriate.

    2.2 The Effect of Industrial Action on Individual Contracts of Employment

    As the most fundamental contractual obligation of an employee is to be ready and willing to serve the employer, the action of going on strike is likely to be regarded s constituting a breach of contract, giving the employer the right to dismiss summarily. In theory it may also entitle the employer to sue the employee for damages , although in practice the employer’s common law power to withhold wages in respect of non-performance. The orthodox view is that industrial action will be unlawful however it is organised, and even if strike notice is given it will be construed merely as notice of an impending breach . However this orthodox view was challenged by Lord Denning MR in Morgan v Fry where he suggested that where strike notice adequate length was given, the strike was not unlawful, since the notice had the effect of suspending the contracts, not breaking them:

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    “The truth is that neither employer nor workmen wish to take the drastic action of termination [of the contracts of employment] if it can be avoided. The men do not wish to leave their work forever. The employers do not wish to scatter their labour force to the four winds. Each side is, therefore, content to accept a “strike notice” of proper length as lawful. It is an implication read into the modern law as to trade disputes. If a strike takes place, the contract of employment is not terminated. It is suspended during the strike and revives again when the strike is over “

    The Donovan Commission considered the possibility of introducing the concept of suspension through strike notice, but thought it surrounded by problems ; in spite of this, it was introduced by the Industrial Relations 1971, s14, but disappeared with the repeal of that in 1974. The whole question arose for consideration by the EAT in Simmons v Hoover Ltd where, in reaffirming that an employer has a right to dismiss a striking employee, Phillips J held that there is no common law doctrine of suspension by strike notice, and refused to apply Lord Denning’s views in Morgan v Fry. He considered that those views were out of line with the modern statutory provisions relating to strikes, which operate on the assumption that participation in a strike is repudiatory conduct entitling the employer to dismiss, and then graft on special rules Simmons v Hoover Ltd shows a clear move back to the original view of strikes as breaches of contract and any mitigation of the potential harshness of this must be found in legislation.

    2.3 The Effect of Industrial Action on Statutory Employment Rights

    Participation in a strike or other industrial action is likely to have a highly detrimental impact on an employee’s statutory employment rights. The most serious consequence is likely to be the potential loss of the right to bring proceedings for unfair dismissal but other statutory rights of a striking employee will also be affected:

    1. the restrictions on deductions from pay do not apply to deductions in respect of a strike or other industrial action in which the employee took part;
    2. a striking employee’s right o a redundancy payment may be jeopardised
    3. a week during which an employee takes part in a strike will not count for the purposes of calculating that employee’s continuity of employment
    4. an employee is not entitled to a statutory guarantee payment where the failure to provide work is in consequence of a strike, lock-out or other industrial action involving his employer or an associated employer
    5. an employee may be disqualified from receiving statutory sick pay where there is a stoppage of work due to a trade dispute at his place of work
    6. rights to state benefits (for example jobseekers allowance) will be materially affected .

    2.4 Industrial Action and Unfair Dismissal

    When an employee strikes, their employer has the contractual right to dismiss them although this is very rarely exercised. Despite this being the case such dismissals can be unfair; indeed following the reforms introduced by the Employment Relations Act 1999, a dismissal may be automatically unfair where the employee is dismissed for taking “protected industrial action.” This protection is however contingent on the industrial action in question being official and normally lasting for no longer than eight weeks. If these requirements are not satisfied the pre-1999 law will still apply, which means that in some circumstances an employment tribunal will have no jurisdiction to hear an unfair dismissal complaint, while in others the tribunal will only be able to consider the complaint on its merits if the employer has discriminated between the participants by selectively dismissing or re-engaging them.

    An employee has no right to bring an unfair dismissal complaint where at the time of the dismissal the employee was taking part in an unofficial strike or other unofficial industrial action. The only exception is where it is shown that the dismissal was for family reasons, or because the employee has taken specified action in relation to health and safety, has acted as an employee representative or has made a protected disclosure under the “whistleblowing” provisions. In such cases, the dismissal will be automatically unfair; in all other cases, the reason for the dismissal is wholly irrelevant.

    Where the industrial action is official, the present position is that the dismissal will be automatically unfair if the reason for the dismissal is that the employee took “protected industrial action “, and one of the following three conditions is satisfied (i) the dismissal took place within eight weeks of the day on which the employee started to take protected industrial action; (ii) the dismissal took place after the end of that eight week period, but the employee has stopped taking protected industrial action before the end of that period or (iii) the dismissal took place after the end of the eight week period and the employee had not stopped taking part in the industrial action before the end of that period, but the employer had failed to take reasonable procedural steps to resolve the dispute. Industrial action is “protected” for those purposes If the employee is induced to take part in the industrial action “by an act which by virtue of section 219 is not actionable in tort “; in other words, the protection for the individual participants is contingent upon the union having complied with the complex legal requirements governing the organisation of industrial action; including the balloting requirements and the restrictions on certain forms of industrial action. As seen above, the unfair dismissal protection normally lasts for only eight weeks. However, a dismissal for taking protected industrial action will still be unfair where the industrial action has lasted for more than eight weeks, if he employer has failed to take “such procedural steps as would have been reasonable for the purposes of resolving the dispute to which the protected industrial action relates. ” In deciding whether the employer has taken reasonable procedural steps, the tribunal must have regard to whether the employer or the union had complied with the procedures laid down in an applicable collective agreement, and whether, afer the start of the protected industrial action, either party had offered or agreed to commence or resume negotiations, had unreasonably refused a request to use mediation services in relation to the procedures to be used to resolve the dispute.

    Where the industrial action is official but is not protected within the meaning of the new provisions, a tribunal will not have jurisdiction to consider an unfair dismissal complaint where, at the date of dismissal, the employer was conducting or instituting a lock-out or the complainant was taking part in a strike or other industrial action, unless the employee shows that either:

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    1. one or more relevant employees have not been dismissed; or
    2. a relevant employee has, before he expiry of the period of three months beginning with that employee’s date of dismissal, been offered re-engagement and the complainant has not been offered re-engagement.

    If the dismissals are selective, or only some of the relevant employees are selected for re-engagement, the tribunal will then have jurisdiction to consider the case in the ordinary way, which means that they must consider the reason for the dismissal, and, if it is a prima facie fair one, the reasonableness of the decision to sack or not to re-engage that particular employee in those circumstances; a selective dismissal is therefore not automatically unfair as such, and the employer may be able to show that it was reasonable in all the circumstances to dismiss or not to re-engage some of the strikers. If the dismissal is held to be unfair the tribunal is not entitled to take into account the mere act of participating in industrial action in deciding whether to reduce the award of compensation on the grounds of contributory fault, but the award may be reduced where there is individual blameworthy conduct by the applicant, additional to our separate from the mere act of participation in the industrial action, which contributed to the dismissal and which was sufficiently blameworthy to make it just and equitable for the tribunal to reduce the compensation .

    There has been some difficulty in interpretation of what amounts to strike action. In some cases, the dominant consideration for the tribunals in determining whether the circumstances amount to a strike or other industrial action within the meaning of the Act has been the purpose for which the action in question was taken, and in particular whether it involved the application of pressure on the employer . As an example in the case of Rassool v Hepworth Pipe Co (No 2) , the EAT held that attendance at an unauthorised union meeting during working hours did not amount to industrial action because the purpose was to discuss wages and not to apply pressure on the employer, even though the meeting did in fact result in some disruption of the production. However, while it is undoubtedly true that industrial action will usually be taken for the purpose of putting pressure of putting pressure on the employer, there may be circumstances where action is taken for a social or political rather than and industrial motive and it is highly likely that such action would in practice be held to be industrial action. Great emphasis is therefore likely to be placed on the nature and effect of the action, rather than the reasons for it .

    It is clear that the technical question of whether the action is in breach of contract is not conclusive, although once again it may be taken into account as a factor. Usually a strike will involve a breach of contract, but the lack of a need to show such a breach could be important in the case of a lock-out or, more especially, in cases of “other industrial action” – a wide phrase would have been held to cover not just actions arguably in breach, but also actions clearly not in themselves in breach, such as a refusal to work voluntary overtime which, if done collectively and with a coercive purpose, may constitute industrial action even-though individually each employee was perfectly entitled to refuse it .

    The right to complain of unfair dismissal is only removed from employees who were “taking part” in a strike or other industrial action at the date of the dismissal. Here, again the court of Appeal has emphasised that the question of whether or not an individual is “taking part” is ultimately a question of fact for the tribunal , but the cases nevertheless proved some guidance as to the correct approach. In Coates v Modern Methods and Materials Ltd , the employee has stayed away from work during the strike because she was frightened of crossing a picket line. The majority of the Court of Appeal held that the test to be applied is an objective one, focusing on what the employee in fact did, and not on her motivation; as Stephenson LJ put it “…. Participation in a strike must be judged by what the employee does and not by what he thinks or why he does it”

    It therefore follows that employees who are absence from work due to sickness or holiday leave during the industrial action may still be held to be taking part in it, particularly if they associate themselves with the strike. However, it seems that clear evidence of participation will be required before an employee who is off sick when the action begins will be found to be participating in it . Just as the employee’s subjective motivation is irrelevant, so is the subjective knowledge on the part of the employer, so that the employer’s reasonable but mistaken belief that the employee is taking part in the industrial action will not be sufficient if the employee ‘s actions and omissions do not justify the conclusion that he was in fact taking part in the action

    A threat to take industrial action does not of itself amount to taking part in industrial action within the meaning of the Act , but where an employee has stated his intention of joining the existing industrial action, he may be taking part in that action before the time when he is contractually due to work in fact arrives . In Lewis and Britton v E Mason & Sons , an employee was dismissed for refusing to drive a heavy goods vehicle which did not have an overnight heater unless he was given the allowance to cover the cost of overnight accommodation. On learning of the dismissal, one of his colleagues threatened the employer that there would be a strike the following day unless the dismissed employee was reinstated. The EAT controversially held that it was open to the tribunal to find that by making a definite threat not to come to work the following day, at a time when further negotiation could not have been allocated by the employer, the employees were taking part in industrial action.

    Where the industrial action is not official but not protected under the new provisions, the tribunal will have jurisdiction to determine the fairness of a dismissal where the employer has discriminated between “relevant employees” by selectively dismissing or selectivity re-engaging them. As defined in section 238(3) “relevant employees” means:

    1. in relation to a lock-out, employees who were directly interest in the dispute in contemplation or furtherance of which the lock-out occurred; and
    2. in relation to a strike or other industrial action, those employees at the establishment of the employer at or from which the complainant works who at the date of dismissal were taking part in the action.

    In the case of strikes and other industrial action, the definition of “relevant employees’ is restricted to those taking part in the action at the date of the complainant’s dismissal but Before 1982, the definition of relevant employees included all those who had taken part at any stage in the industrial action, so that an employee who had been on strike but had returned to work before the dismissal occurred was still a relevant employee. Accordingly, in Stock v Frank Jones (Tipton) Ltd , the House of Lords held that there had been selectivity where the employer had not sacked two employees who had returned to work before the date of the dismissals, so that the applicant could bring her case. The Employment Act 1982 reversed the decision in that case, thus enabling an employer to issue an ultimatum to those taking part in industrial action to return to work or face dismissal and then to dismiss all those who fail to comply, while still retaining the protection of the section against unfair dismissal proceedings brought by the dismissed employees.

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    A second significant amendment made by the 1982 Act was to introduce a time limit on re-engagement of relevant employees, so that the anti-discrimination provisions only apply where a relevant employee is offered re-engagement within three months of his dismissal; thereafter the employer is free to re-engage strikers selectively without conferring jurisdiction on the tribunal. Before 1982, any such re-engagement would lay the employer open to an unfair dismissal complaint, even if the taking on was at some time in the future . The time limit also enables the employer to make an initial limited offer of re-engagement – in effect sanctioning a “cooling off ” period and a phased return to work – provided that all those dismissed have been offered re-engagement within three months of their dismissal . The third amendment introduced by the 1982 Act dealt with the situation where there is industrial action at some or all of the plants of a multi-plant employer. Up to that time, if the industrial action all formed part of one dispute, the non-selectivity rule had to apply to all plants , so that an employer could not adopt a different approach to the industrial action in different plants, for example by dismissing the workforce at one plant but not another. However the 1982 Act restricted the definition of “relevant employees” to those employed “at the establishment of the employer at or from which the complainant works” so that any application of the selectivity principle has to be done on an establishment -by-establishment basis. One further potential difficulty for a large employer operating from several sites is that an employee dismissed for taking part in industrial action might be mistakenly re-engaged at another site within the three months period , so opening up the employer to unfair dismissal complai

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