Trade Union Immunity in Trade Disputes
If a recognised, independent trade union calls for industrial action (e.g. a strike, a work to rule or an overtime ban) or otherwise seeks to induce a breach of any contract in anticipation of, or during a trade dispute, the union may be immune from the legal action it would otherwise face through taking such action.
In Contemplation or Furtherance of a Trade Dispute
In order to gain immunity, the industrial action must be in the contemplation or furtherance of a trade dispute (as defined by statute). The dispute should relate to one or more of the following:
- terms and conditions of employment;
- physical working conditions; engagement, suspension or termination of employees;
- the allocation of duties;
- disciplinary matters;
- union membership or non-members; - trade union official facilities and trade union recognition.
It may only involve the employees concerned and their employer and may not be in support of a closed shop, nor may it be an unofficial strike or a sit in.
The Need for a Secret Ballot
Trade union immunity is also lost: if the union does not hold a secret ballot and initial action is not taken within 28 days of the ballot; if you, as the employer are not given adequate notice of the ballot or the action; or if certain ballot form and voting formalities are not observed (although certain accidental failures may now be disregarded).
The only form of secondary action which is permitted in law is picketing and even then it must be in the contemplation or furtherance of a trade dispute and limited to the relevant place of work and confined to discussion and peaceful persuasion - breach of these rules also removes trade union immunity.
Taking Action against a Union
If you, as an employer, feel that you may be affected by non-immune industrial action, you may seek an injunction or damages (up to a maximum sum depending on the level of union membership). Legal advice should be taken immediately, especially if an injunction is sought as action must be taken speedily in order to gain such relief.
Settling Trade Disputes
In trade disputes, the Advisory Conciliation and Arbitration Service (ACAS) has powers to offer assistance by conciliation or other means. If conciliation fails, ACAS can refer the dispute (if the parties agree) to the Central Arbitration Committee (CAC) for adjudication. Whilst not a legal requirement, a CAC adjudication is normally accepted.