LRD Booklets February 2010

Taking industrial action - a legal guide

Introduction

Evidence of state interference with workers’ attempts to join together and improve their pay and conditions dates back to the Statute of Labourers 1351. The motivation has been both economic (to prevent workers negotiating terms which are more costly for employers) and political (to prevent workers forming a shared platform to gain support).

Above all, the state has tried to insulate employers from the disruption caused by strikes. Under the 19th century Master and Servant Acts, refusal to work was a criminal offence — routinely punished by imprisonment. Even when the power to impose such disproportionate sanctions became socially unacceptable and was revoked, the courts could be unsympathetic to workers’ concerns. For example, in Quinn v Leathem [1901] AC 495, the House of Lords considered the case of an employer who had lost business as a result of a strike and awarded damages, ruling that: “A threat to call men out given by a trade union official to an employer of men belonging to the union and willing to work with him is a form of coercion, intimidation, molestation or annoyance…”.

However, against the background of industrialisation and its appalling working conditions, legislation on trade union activities tended towards greater liberalisation until the 1970s. This decade coincided with massively increased numbers of people looking for work — specifically, the “baby boomer” generation came of age and women were routinely participating in the workforce. However, this was accompanied by increased mechanisation resulting in a diminished requirement for workers, plus spiralling inflation and limited public spending which was dictated by the International Monetary Fund following a loan taken during the sterling crisis of 1976.

The situation became so severe during the social unrest which culminated in the “winter of discontent” in 1978 that Labour prime minister Jim Callaghan considered declaring a state of emergency. Trade unions were a convenient scapegoat to blame for the chaos and unsurprisingly, the Thatcher Conservative government elected to power in 1979 was ready for an epic conflict with the union movement.

The ensuing struggle culminated in the infamous deployment of every arm of the state to undermine the 1984 Miners’ Strike and the legal reforms instituted by prime minister Thatcher (now in the form of the Trade Union and Labour Relations Consolidation Act 1992 — TULRCA) have barely been moderated since. To this day British trade union legislation, specifically the taking of industrial action, remains amongst the most restrictive in the developed world.

The consequences of a failure to observe the provisions of TULRCA when going out on strike are severe, and against this background knowledge of the law of industrial action is vital for trade unionists.

This booklet is designed to present to union reps the relevant information about taking industrial action so that they clearly understand the process. At this current point in time with the economy in downturn, the looming threat of severe public service cuts, tax increases and substantial job losses, particularly in the public sector, it is clear that knowing how to take industrial action, and being prepared for the obstacles that employers may put in place, is crucially important.