With industrial action continuing to be an issue, there are some doís and doníts to adhere to.
The past couple of years have seen industrial action on the front pages once again. A prominent feature of recent industrial action has been the increasing use of picketing and demonstrations to attract media attention and to heighten the public relations risks for the employer. There have been rooftop demonstrations, sit-ins, and site occupations across the country.
There is no sign of this phenomenon going away and many commentators suggest we will see a further increase in the coming years. One national broadsheet predicted that industrial action would be one of the top 10 features of life in 2010.
Picket lines are often highly-charged environments, and behaviour can easily deteriorate causing numerous problems for the employer, for non-picketing workers and for neighbouring businesses. Management usually want to exert control over the situation, but many are often too unsure of the legal position regarding picketing.
The first principle to get to grips with is that a peaceful picket line is, in itself, entirely lawful due to s220 of the Trade Union and Labour Relations (Consolidation) Act 1992. A peaceful picket line is one in which the pickets peacefully assemble at or near their own place of work (with a couple of exceptions). To be peaceful, the Acas Code of Practice on picketing suggests a maximum of six pickets, but this numerical limit must be treated with some caution now since the UK has adopted the European Convention on Human Rights into domestic law.
The second principle is that pickets can lawfully engage in only two types of activity on the picket line: they can peacefully obtain or communicate information; and they can attempt to persuade others, usually fellow workers and delivery drivers, to break their contractual obligations to work or deliver. However, pickets can only invite a person to listen to them; they cannot compel them to do so.
The third principle is that the right to picket peacefully does not legitimise any other behaviour that takes place on a picket line or demonstration. In particular, pickets are subject to the full rigour of our criminal law.
The types of unlawful behaviour that often occurs on a picket line and which employers can challenge are as follows:
Intimidation/harassment – Pickets are only entitled to communicate and seek to persuade peacefully. Pickets cannot use threatening, abusive, or insulting words or actions to try to pressurise others to act as the pickets want. Nor can they make express or implicit threats of physical harm or otherwise cause individuals to fear for their safety. If pickets do so, they can commit a variety of offences. The non-permitted behaviour can range from semi-childish (hiding an individual’s clothes, tools or property) to implicit menace (‘watching and besetting’ a place where an individual lives/works, or persistently following a person from place to place) to threats of or actual violence to a person.
Breach of the peace – Pickets are acting unlawfully if within a person’s presence they either actually harm or cause that person to fear that they will harm either him or his property. This can occur simply if the picket line becomes too large and/or unruly.
Damage to property – Pickets are acting unlawfully if they vandalise gates, fencing or vehicles that are entering or leaving the employers premises or if they throw objects into the employers property that cause damage.
Trespass – Pickets are only allowed to attend at or near the entrance to their workplace. They have no right to enter the employer’s premises or land without permission.
Obstruction of the highway – Pickets are entitled to gather peacefully at or near their place of work but they are not allowed to deliberately prevent other persons from using the public highway. This could include stepping in front of vehicles to force drivers to stop and listen to them or simply trying to make progress awkward for the employer, delivery drivers, or workers who continue to work.
Public order offences – A group of pickets, even a small group, who are or seem likely to use threatening or insulting behaviour, language or signage, or seem likely to cause nuisance, trespass may commit a variety of public order offences.
Types of permitted behaviour
- Peacefully attendance at the picket line (eg standing on the line)
- Peacefully communicating with other persons (eg holding placards, chanting/shouting lawful slogans)
- Attempting to persuade other persons to break their contractual obligations.
Types of unlawful behaviour
- Generally insulting, abusive or threatening words or actions
- Watching, following or threatening an individual
- Obstructing the highway
- Damage to property.
Simon Ost, partner, employment, Hammonds