Are industrial relations laws anti-union?

Unite, the union's recent annual conference held in Manchester on 31 May 2010, Unite's joint leader Tony Woodley called for what he described as "anti-union laws" to be repealed because "the right to strike is hanging by a thread".

Clearly this is a reference to the recent litigation with BA when, first on 17 December 2009 and then on 17 May 2010, the High Court granted interim injunctions against Unite preventing industrial action. The 17 May decision was short-lived, however, as this was overturned by the Court of Appeal on 20 May 2010.

So are the laws anti-union and is the right to strike hanging by a thread? I will try to keep this as apolitical as possible (no mean feat, given the subject area) but the answer must be a resounding no.

First, there is no general right to strike in the UK and there never has been. Instead, the law has been framed as varying levels of immunity from prosecution as a result of taking industrial action that would otherwise be unlawful.

A short history lesson: prior to 1871, trade unions were unlawful in the UK. Although post-1871 they were lawful, their precise legal status remained unclear until two decisions in 1901 which established that the unions would be liable in tort for losses caused to employers by industrial action. For all intents and purposes, therefore, these decisions made striking unlawful.

This did not fit in with the ideals of the Liberal government that came into power shortly after these decisions, which therefore brought into force the Trade Disputes Act 1906 which first introduced immunity from liability for the unions, provided the industrial action was in contemplation or furtherance of an industrial dispute.

That general principle remained until the Conservative government of the early 70s repealed the 1906 Act and replaced it with the Industrial Relations Act 1971. This Act established the National Industrial Relations Court, which was empowered to grant injunctions against injurious industrial action. The trade unions adopted a policy of non-compliance with the new legislation, beginning with a "Kill the Bill" campaign, and it was repealed by the Labour government of 1974.

Then came Margaret Thatcher who, having learnt from the failure of the wholesale 1971 reforms, took a piece-by-piece approach to union reform - although this was obviously punctuated by some major conflicts, most notably the miners' strike of 1984-85. A need for the unions to ballot for industrial action was introduced in 1984 and this culminated in the Trade Union & Labour Relations (Consolidation) Act 1992.

By this time, the ability to strike and the protection for employees who did strike had been severely curtailed and it took the Blair government to change this. This was in the form of the Employment Relations Act 1999, which introduced a category of protected official industrial action, during which it was automatically unfair to dismiss employees for participating in the action provided the union has complied with the balloting and other technical requirements of the legislation. This protected period, originally eight weeks and increased to 12 weeks in 2004, was of major benefit to the unions and the main reason why it is inaccurate to refer to the current law as "anti-union".    

It appears to be with these technical requirements that Woodley has his main gripe, as it is on the basis that Unite failed to comply with these requirements that the injunctions were granted. 

But is compliance with these requirements so difficult? It should not be. The main problem may be that the relevant sections of the legislation are peppered with references to what is "reasonably practicable" and so import a level of ambiguity as to what is required, which is inherent with such a test. But that uncertainty goes with so much of the territory in employment law and it is worth noting that it is usually the employer who has to grapple with this uncertainty. This is one of the few examples where it is the employees, or their representatives at least, who are at risk if a court disagrees with their assessment of what is reasonable and you will not hear the unions expressing much sympathy with the employer's predicament in this respect?

So we have a Liberal-Conservative coalition with rather a lot on their plate. There is no mention in the coalition agreement of how they propose to deal with industrial relations law but I suspect that union law reform, particularly any reform that makes it easier to take industrial action, is going to be rather low on their list of priorities.


Philip Hodges is a senior associate in the employment team at law firm Halliwells LLP