When is it illegal to strike?

In the UK, never. But it’s often unlawful. The climate strikes have highlighted the draconian British anti-union legislation and exposed confusion about the law and the consequences of striking unofficially. Unite union activist Ian Allinson explains the current legal framework – and how it needs to be changed.

Climate strikes in Manchester, 20 September 2019. Photo: Ian Allinson

As the 20 September climate strikes approached, I produced a video attempting to help activists understand how to strike for climate in their workplace. It is not surprising that confusion reigned. It’s not just that the law is complicated. Only 23% of employees are union members, falling to 4.4% of those aged 16-24.[1] Just 39,000 workers took recorded industrial action in 2018.[2]

Now that thousands of workers have grappled for the first time with how to strike for the climate, it is a good time to explore what strikes are, how the UK anti-union laws work, and some of the misconceptions about them.

What strikes are

A strike is usually defined as ‘a temporary stoppage of work by a group of employees in order to express a grievance or to enforce a demand’.[3] This definition makes no restriction on who the target of the strike might be – it could be the employer, the government, another employer, a customer, or another group of workers. The use of the term ‘employees’ looks rather dated now, as many workers don’t have ‘employee’ status and the International Women’s Strike has popularised the idea of striking from work that isn’t paid at all.

British law is unusual in that workers have no right to strike, despite this being part of international human rights and labour law. By the early nineteenth century, the law of contract was replacing earlier ‘master and servant’ legislation under which disobedience was a criminal offence.[4] Contract law pretends that the employment contract is much like any other, as if it was freely entered into by equals without vast economic power inequalities, yet allows one party to order the other around. Once the threat of criminal conspiracy was removed from strikers in 1875[5], employers relied primarily on contract law to stop strikes. This meant reliance on civil law rather than criminal law. Whereas the state prosecutes and punishes under criminal law for offences seen as against society as a whole, civil law settles disputes between individuals and organisations, aiming to provide some form of redress.

It is common to hear people saying that a strike over climate (for example) would be illegal. This is wrong. Illegal means forbidden by law, but there is no law forbidding strikes. The problem we face is of some strikes being unlawful, which means there is no law permitting them, leaving strikers and unions that call such strikes open to civil litigation. A strike is unofficial if it hasn’t been called by a union. Until the end of the 1980s most strikes were unofficial, making Tory claims that they were caused by union leaders rather than workers’ grievances absurd.[6]

Origins of modern strike law

Judges proved highly creative at inventing new ‘torts’ (civil wrongs) which strikers and their unions could be sued for. The most famous example was the Taff Vale ruling in 1901, which enabled the employer (the Taff Vale Railway Company) to sue the union for losses sustained during a strike, making strikes less effective and preventing unions that called strikes being financially sustainable. This judgement played a key role in the creation of the Labour Party as union leaders wanted MPs who would protect unions from the law.

In 1906 the Labour Representation Committee won 29 seats and the Liberal government passed the Trade Disputes Act 1906 which created the foundations for modern strike law. Instead of providing a right to strike, it gave workers and their unions immunity from prosecution under civil law for any otherwise lawful act ‘in contemplation or furtherance of a trade dispute’, which was broadly defined.[7]

The Tory government’s Industrial Relations Act 1971 tried to replace the immunities model with direct state regulation, but this led to the jailing of the Pentonville Five dockers for picketing – only to be released after strikes spread. Labour repealed the Act in 1974 and restored the immunities.

Derek Watkins, Tony Merrick, Conny Clancy, Bernie Steer and Vic Turner became known as the ‘Pentonville Five’ when they were jailed for ignoring an injunction against picketing in July 1972. Photo from Warwick Modern Records Centre.

The Conservatives learned from the defeat of their 1971 Act. They were keen to avoid jailing activists, creating focal points for resistance.[8] Instead of overhauling strike law in one go and risking a powerful union response, they proceeded step-by-step, eroding union immunities between 1980 and 1993.[9] They tried to get union officials to police their members by targeting union funds rather than strikers themselves.

The Employment Act 1980 began narrowing the immunities by making secondary picketing (away from a worker’s own workplace) and much secondary action (in disputes with other employers) unlawful.[10] The big issue with losing immunity wasn’t the risk of damages, but of ‘interlocutory injunctions’. These are temporary court orders, supposedly to preserve the status quo pending a full hearing, which rarely happens. If the defendant breaks the injunction, the plaintiff can initiate contempt of court proceedings, which can lead to unlimited fines and sequestration (seizing) of assets to enforce compliance, making injunctions much more powerful than damages.

The Employment Act 1982 enabled claims and injunctions against unions rather than just individuals, and injunctions became the employers’ key legal weapon. The bar to obtain an injunction against a union is extremely low. The plaintiff merely has to show that there is a serious question to be tried, not that they are likely to win. ‘Balance of convenience’ and ‘public interest’ tests are heavily stacked against unions, and unions get little or no time to prepare for hearings.[11] The Act further restricted immunity for secondary action and from strikes deemed primarily political, such as against privatisation.[12]

Unions didn’t meekly submit. Though unions complied with some injunctions, others were defied, leading to fines and sequestration of assets in key ‘trial of strength’ battles where injunctions formed a subsidiary part of a wider onslaught, including violent mass policing and arrests, resulting in high profile union defeats and a ‘demonstration effect’ discouraging both strikes and defiance of the legislation.[13]

The 1984-5 miners’ strike and its aftermath

The most important of these battles was the 1984-5 miners’ strike. Consistently defeating the unions was central to government strategy, to build the ‘demonstration effect’, deterring other workers.[14] Despite throwing everything into the dispute, the government was cautious about using its new legislation.

The strike began in March 1984, before the Trade Union Act 1984 came into force in September.[15] The National Coal Board (NCB) quickly obtained an injunction against secondary picketing; miners responded with more. The NCB did not seek enforcement for fear of solidifying resistance, while other nationalised industries did not seek injunctions. Mass policing and arrests were under (or outside) existing public order legislation, which the Conservatives later strengthened.[16]

It was only after opportunities for breakthroughs by solidarity, mass picketing, or broadening of the battle had passed that National Union of Mineworkers (NUM) funds were sequestrated through cases brought by a transport contractor and working miners. Sequestration wasn’t decisive, but added to the miners’ difficulties. Injunctions didn’t prevent the other great battles at Wapping in 1986 and P&O Ferries in 1988, but made some contribution to these defeats. While overt repression was not a feature of most strikes, it made a dramatic impression, and went alongside undercover methods.[17]

The Trade Union Act 1984 further restricted immunities by requiring pre-strike secret ballots and these became the main focus for injunctions.[18] Ballots often delivered large majorities that probably strengthened action.[19] Successive legislation built on the 1984 Act by complicating the balloting process, enabling injunctions against otherwise lawful action.[20] The Employment Act 1988 enabled members to bring cases and banned unions disciplining strike-breakers. The Trade Union Reform and Employment Rights Act 1993 made pre-strike ballots fully postal (rather than workplace ballots) and introduced advance ballot and action notices to the employer.

Contrary to popular myth, the anti-union laws weren’t decisive in the defeats of the 1980s. The balance of power was shifted by high unemployment, mass sackings, mass violent policing, falling union membership density and organisation – and high profile defeats. Anti-union legislation was part of the picture, and has certainly made recovery more difficult since, but it didn’t stop big strikes at the time.

New Labour did almost nothing to reduce the legal barriers to striking. Blair boasted that the British labour market remained the most lightly regulated of any leading economy.[21] When the Tories returned to office they faced very low strike levels, and it is debateable whether their further restrictions owed more to reliving the 1980s than to heading off twenty-first century industrial resistance. The best known part of the Trade Union Act 2016 is its introduction of turnout thresholds for industrial action ballots, but it contains much more.

Strike laws today

Today, the definition of a ‘trade dispute’ is incredibly narrow compared to 1906. You can only lawfully strike against your own employer, while employers are free to divide themselves into multiple legal entities, outsource and subcontract work. The solidarity on which workers have always relied is now unlawful. Instead of any issue in connection with employment, strikes are only lawful if they relate wholly or mainly to a narrow set of issues which exclude issues such as the sale of the part of the business you work for. Demanding that your employer or the government tackle climate change falls well outside the law.

The process for getting a lawful strike now involves:

  • Getting accurate lists of all members involved
  • Provide a detailed notice to the employer and members, at least one week before
  • Posting ballot papers to members with scary and misleading words on
  • Getting at least 50% of voters to support action
  • Getting at least 50% of members to vote
  • If you are in ‘important public services’, getting at least 40% of all potential voters to support action
  • Providing a detailed notice to the employer and members with the result, before
  • Providing a detailed notice to the employer and members at least two weeks before each piece of industrial action

The official justification for all the notices to employers is to enable them to prepare and reduce the impact of the strike. In reality, the complexity provides employers with opportunities to seek injunctions.

Defying the strike laws

Despite all this, unofficial strikes are common enough not to make the news, but they are concentrated in certain industries. Employment in construction is usually too volatile to make compliance with the legislation realistic. As I write this workers at Fabricom near Hull are on their fourth day of unofficial strike against blacklisting. These days unions deny responsibility for unofficial strikes, but sometimes give behind the scenes support. Workers rely on sticking together to protect themselves from victimisation rather than any legal protection.

Matthew Malcolm on Facebook: Unofficial strikers from Fabricom, Engenda, Brand and Motherwell Bridge, September 2019.

Workers and their unions usually try to comply with the law, but often use creativity to do so. Strikes rarely have just one cause, so a lawful trade dispute can be identified while workers may be motivated by other grievances. There is potential to do this around climate – creating trade disputes around terms and conditions of employment, physical working conditions or allocation of work. For example, demands for a shorter working week, working fewer days a week, less travel for work, better insulated buildings, greener vehicles, a free zero-carbon canteen, bike shelters, a shuttle bus to the station, or being allocated work nearer home might be the basis of trade disputes linked to climate.

On 20 September, most strikers I spoke to were taking unofficial action. They had the confidence to do so not because of solid participation, as in many construction strikes, but because they didn’t believe their employers would sanction them for striking. In some cases this was because of explicit employer support – a few employers announced their support for the strikes and either closed up or encouraged workers to take part. In most cases it was more ambiguous, with workers putting pressure on management to live up to their claims of green credentials.

Changing the law

The unofficial strikes are a very exciting development. Historically, workers have won rights by breaking unjust laws. We can make the anti-union laws unenforceable by linking strikes to mass movements with popular support. But we still need the law changed – that would give more workers the confidence to strike.

After years of New Labour it is a massive step forward to see the Labour leadership supporting strikes, union membership and extended union rights. What’s more worrying is the focus on repealing the Trade Union Act 2016. This Act was, if you like, the insult added to the injury – and we need to tackle the injury itself.

Labour’s policy is heavily based on the Institute for Employment Rights’ Manifesto for Labour Law. While scrupulously researched and full of good ideas, it doesn’t call for the repeal of all the Tory anti-union legislation. Labour conferences have called for this, but it remains absent from the commitments made by Labour’s leaders, who seem to think such a move would open them to Tory attacks, while lacking public support. We need to push our unions to be more full-blooded in support of the climate strikes – and to use them to put the case for a genuine right to strike.

The law pretends to be even-handed, but intervenes to force us to work when we want to strike, but won’t force an employer to reinstate a worker who has been unfairly dismissed. Going back to the law as Thatcher left it isn’t good enough.

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Footnotes

[1] Department for Business, Energy & Industrial Strategy, Trade Union Membership: Bulletin [online] (30 May 2019).

[2] Office for National Statistics, Labour disputes in the UK: 2018 [online] (17 May 2019). Official UK figures are voluntarily collected and exclude political strikes, as well as most very short or small strikes, so underestimate the numbers of strikes and strikers. However, the scale of unrecorded strike action has been relatively low in recent decades.

[3] Florence Peterson, ‘Methods used in strike statistics’, Journal of the American Statistical Association, 32:197 (1937), 90-6.

[4] Philip Selznick, Law, Society and Industrial Justice (New York: Russell Sage Foundation, 1969).

[5] It has been used against strikers such as the Shrewsbury 24 more recently, but not for simply striking.

[6] Department of Employment, Unofficial Action and the Law (London: HMSO, 1989).

[7] John Saville, ‘The Trade Disputes Act of 1906, Historical Studies in Industrial Relations, 11:45 (1996), 11–45.

[8] Peter Dorey, ‘Weakening the Trade Unions, one step at a time: the Thatcher governments’ strategy for the reform of Trade-Union law, 1979–1984’, Historical Studies in Industrial Relations, 37 (2016), 169–200.

[9] Gregor Gall, and Stephen McKay, ‘Research note: injunctions as a legal weapon in industrial disputes’, British Journal of Industrial Relations, 34:4 (1996), 567–82; Dave Lyddon, ‘The changing pattern of UK strikes, 1964-2014’, Employee Relations, 37:6 (2015), 733–45.

[10] Doug Pyper, Trade union legislation 1979-2010 [online] (CBP-7882) (London: The Stationery Office, 2010).

[11] Kenneth Wedderburn, The Worker and the Law, 3rd edn. (Harmondsworth: Penguin, 1986).

[12] Keith Ewing and W. M. Rees, ‘Meaning of trade dispute: Mercury Communications Ltd. v. Scott-Garner’, Industrial Law Journal, 13:1 (1984), 60–2.

[13] Stephen Evans, ‘The use of injunctions in industrial disputes’, British Journal of Industrial Relations, 23:1 (1985), 133–7; Dave Lyddon, ‘Rediscovering the past: recent British strike tactics in historical perspective’, Historical Studies in Industrial Relations, 5 (1998), 107–51; Dave Lyddon, ‘Strikes: industrial conflict under New Labour’, in: Trade Unions in a Neoliberal World: British Trade Unions under New Labour, ed. Gary Daniels and John McIlroy (London: Routledge, 2009), pp.316–41.

[14] Allan Kerr, and Sanjit Sachdev, ‘Third among equals: an analysis of the 1989 ambulance dispute’, British Journal of Industrial Relations, 30:1 (1992), 127–43.

[15] Dave Lyddon, ‘Why trade union legislation and the Labour Party are not responsible for the decline in strike activity’, International Socialism [online], 158 (2018).

[16] College of Policing, National Public Order – A Compendium of Legislation (2012).

[17] Rob Evans, ‘Covert police unit spied on trade union members, whistleblower reveals’, The Guardian [online] (13 March 2015); Rob Evans, ‘Officers likely to have passed personal files to blacklisters, says Met’, The Guardian [online] (23 March 2018).

[18] Stephen Evans, ‘The use of injunctions in industrial disputes May 1984-April 1987’, British Journal of Industrial Relations, 25:3 (1987), 419–35.

[19] Sefton Bloxham, ‘Strike ballots: breaking in the Trojan Horse’, The Liverpool Law Review, 8:2 (1986), 131–151.

[20] Dave Lyddon, ‘A historical perspective on recent legal restrictions on the right to strike in the UK’,  Employment Policy and Equalities Research Group Seminar (Keele, 2013).

[21] Richard Hyman, ‘The historical evolution of British industrial relations’, in: Industrial Relations: Theory and Practice, ed. Paul Edwards (Oxford: Blackwell, 2003), pp. 37–57.

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References

Sefton Bloxham, ‘Strike ballots: breaking in the Trojan Horse’, The Liverpool Law Review, 8:2 (1986), 131–151.

College of Policing, National Public Order – A Compendium of Legislation (2012).

Department of Employment, Unofficial Action and the Law (London: HMSO, 1989).

Department for Business, Energy & Industrial Strategy, Trade Union Membership: Bulletin [online] (30 May 2019).

Peter Dorey, ‘Weakening the Trade Unions, one step at a time: the Thatcher governments’ strategy for the reform of Trade-Union law, 1979–1984’, Historical Studies in Industrial Relations, 37 (2016), 169–200.

Rob Evans, ‘Covert police unit spied on trade union members, whistleblower reveals’, The Guardian [online] (13 March 2015).

Rob Evans, ‘Officers likely to have passed personal files to blacklisters, says Met’, The Guardian [online] (23 March 2018).

Stephen Evans, ‘The use of injunctions in industrial disputes’, British Journal of Industrial Relations, 23:1 (1985), 133–7.

Stephen Evans, ‘The use of injunctions in industrial disputes May 1984-April 1987’, British Journal of Industrial Relations, 25:3 (1987), 419–35.

Keith Ewing and W. M. Rees, ‘Meaning of trade dispute: Mercury Communications Ltd. v. Scott-Garner’, Industrial Law Journal, 13:1 (1984), 60–2.

Gregor Gall, and Stephen McKay, ‘Research note: injunctions as a legal weapon in industrial disputes’, British Journal of Industrial Relations, 34:4 (1996), 567–82.

Richard Hyman, ‘The historical evolution of British industrial relations’, in: Industrial Relations: Theory and Practice, ed. Paul Edwards (Oxford: Blackwell, 2003), pp. 37–57.

Allan Kerr, and Sanjit Sachdev, ‘Third among equals: an analysis of the 1989 ambulance dispute’, British Journal of Industrial Relations, 30:1 (1992), 127–43.

Dave Lyddon, ‘Rediscovering the past: recent British strike tactics in historical perspective’, Historical Studies in Industrial Relations, 5 (1998), 107–51.

Dave Lyddon, ‘Strikes: industrial conflict under New Labour’, in: Trade Unions in a Neoliberal World: British Trade Unions under New Labour, ed. Gary Daniels and John McIlroy (London: Routledge, 2009), pp.316–41.

Dave Lyddon, ‘A historical perspective on recent legal restrictions on the right to strike in the UK’,  Employment Policy and Equalities Research Group Seminar (Keele, 2013).

Dave Lyddon, ‘The changing pattern of UK strikes, 1964-2014’, Employee Relations, 37:6 (2015), 733–45.

Dave Lyddon, ‘Why trade union legislation and the Labour Party are not responsible for the decline in strike activity’, International Socialism [online], 158 (2018).

Office for National Statistics, Labour disputes in the UK: 2018 [online] (17 May 2019).

Florence Peterson, ‘Methods used in strike statistics’, Journal of the American Statistical Association,  32:197 (1937), 90-6.

Doug Pyper, Trade union legislation 1979-2010 [online] (CBP-7882) (London: The Stationery Office, 2010).

John Saville, ‘The Trade Disputes Act of 1906, Historical Studies in Industrial Relations, 11:45 (1996), 11–45.

Philip Selznick, Law, Society and Industrial Justice (New York: Russell Sage Foundation, 1969).

Kenneth Wedderburn, The Worker and the Law, 3rd edn. (Harmondsworth: Penguin, 1986).

 

2 COMMENTS

  1. People have used mass sickies, but this doesn’t really get round the problem. If the employer doesn’t believe the sickness is genuine they could discipline workers. Anyone organising it would be inciting people to break their contracts – exactly as if they called a strike. A mass sickie is just a label for an unofficial strike that makes some people more confident. It has the disadvantage that it makes it harder to participate in action on the strike day – if you get spotted your employer can add dishonesty to the disciplinary charges. As with standard unofficial action, the only real protection is mass participation and a determination to stay out if anyone is victimised.

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