Strike action - is it legal?

  • By Josh Hall
  • 15 June 2011
Strike action - is it legal?

On 30 June, as many as a million workers could walk out of their jobs. The proposed coordinated strike could potentially be the largest industrial action since 1926.

With ballots being conducted this week, the prospect of strike action on a virtually unprecedented scale is a very real one – and, even if the actions on 30 June are not as widely supported as is anticipated, it seems certain that the country now faces many months of increasing industrial unrest.

As an employer, you need to understand your employees’ rights and responsibilities. While the right to withdraw labour is a fundamental one, the UK has some of the world’s strictest strike laws – and, in order to be legal, industrial action must follow a number of stringent requirements.

Conditions of legality

There are several clear conditions that must be met in order for an industrial action to be deemed legal. If these conditions are not met, participants in industrial action could be found to be in breach of their employment contract.

In order for industrial action to be legal:

• There must be a trade dispute – a dispute between workers and their own (not another) employer, that is wholly or mainly about a specific matter like pay and conditions.
• There must have been a ballot, conducted according to the rules described below.
• Notice must have been given to the employer. The notice must: be delivered at least seven days before the action starts; detail whether the action will be continuous or discontinuous; detail the ‘affected employees’ (that is, the categories of employee who will take part); be presented by an officer, official, or committee of the relevant union.
• It must not be a secondary action – also known as solidarity action.
• It must not be in support of an employee dismissed because of unofficial industrial action.
• It must not involve unlawful picketing. Further information on the legal conduct of industrial action is available below.
• It must not be used to promote or enforce a closed shop – that is, an arrangement in which an employer hires only members of a union.
• It must not be used to promote or enforce union membership.

In cases where these criteria are not fulfilled, participants in the action (or the union itself) could be subject to civil court proceedings.

Conducting a legal ballot

The ballot is one of the most complex areas of industrial action. Indeed, one need only look back to February’s British Airways ballot for evidence that even large unions sometimes struggle with their legality.

Again, there are several requirements that must be fulfilled in order for a ballot to be considered legal. These include the following:

• If more than 50 union members are entitled to vote, the ballot must be subject to independent scrutiny by a union-appointed ‘qualified person’. The scrutineer must produce a written report within four weeks of the date of the ballot.
• The employer must be provided with certain information at least seven days before the date of the ballot. This information includes the expected opening date, and a breakdown explaining how many employees are likely to be affected.
• The employer must be provided with a sample ballot paper, which itself must fulfil certain criteria. It must, for example, include the name of the scrutineer, a unique number, a return address, and an indication of whether the ballot relates to strike action or action short of a strike.
• Every member who will be induced to take part in the action must be given an equal chance to vote.
• As soon after the ballot as is “reasonably practicable”, the union must inform the employer and every member entitled to vote of: the number of votes cast; the number of spoilt ballots; the number of ‘yes’ votes; and the number of ‘no’ votes.

Conducting a legal action

There are several factors that could affect the legality of employees’ conduct during an industrial action. Picketing is particularly rife with legal complexity.

In order for a picket to be legal, certain conditions must be met. These include:

• It must generally be at or near the place of work. This requirement is waived if, for example, the worker has no specific place of work. In these cases, might picket at the employer’s premises.
• It must be peaceful.
• Pickets may be for the purpose of persuading people not to work, provided that this occurs peacefully.

With strike action set to increase in both frequency and severity, as an employer it is important to understand your legal position. You should note that nothing in this article is intended to be legal advice, and nor are the lists of conditions above exhaustive. You should always seek independent legal advice if you are in any doubt.

Read more about: Staying legal , Employee and HR