Secondary action: legal dilemma

I am an HR director at a company that specialises in oil derivative products and services. The recent haulier strike almost affected us and I was concerned that many of our employees who are members of unions said they would not undertake work that would jeopardise the position of the strikers – in other words secondary action. What is the employer’s position should they be affected by secondary action?

Typical of most industrial action issues the answer is complicated as the UK has an intricate and relatively unusual immunity system provided by the Trade Union and Labour Relations Consolidation Act 1992.

Cutting through the legal complexities, your workers will almost certainly be in breach of contract if they refuse to honour their contractual obligations or unreasonably refuse to follow a legitimate management instruction out of sympathy for another company’s workers. They will not have any statutory immunity if they are not actually in dispute with your company. This would mean that you could take disciplinary action against them up to and including dismissal in some circumstances (although there may be some procedural hurdles).

If anyone, most obviously a trade union, induces your workers to take industrial action to apply/maintain pressure on a third party then they do not obtain statutory immunity either (due to sections 219 and 224 of the act) and they will be liable to compensate your company for any consequential loss. It would also open up the possibility of an injunction to legally restrain the trade union from inducing your workers further.

However, there is a very real, practical scenario in which a trade union official or a union member can induce your workers to take secondary action … and yet obtain statutory immunity. This is when they do so while engaged in lawful picketing. In practice, this tends to occur when one of your employees is persuaded not ‘to cross a picket line’. While your worker would be vulnerable to action by you, the trade union official or third party worker who persuaded them would be immune by virtue of s.220 of the above Act. In that situation you would need to carefully scrutinise whether the picketing was technically ‘lawful’.

Simon Ost, employment partner, Hammonds

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