Strike Action: An Autumn of Discontent?

2009-2010 witnessed a series of highly publicised strikes, on a scale unprecedented since the 1980s. In many cases, proposed industrial action became the subject of fiercely contested High Court litigation. However, this may prove to have been merely an appetiser for what lies ahead.

The TUC has called for a collective day of strike action on 30 November 2011 over pension rights. At least 14 trade unions appear committed to strike action, raising the spectre of up to 3 million public sector workers, including nurses, teachers and careworkers, participating in the most widespread industrial action since the 1926 General Strike. The unions have indicated that they plan a protracted campaign and that protests may run deep into 2012, affecting the summer Olympics and the Queen’s Jubilee.  Given the continuing poor state of the economy, there seems a real prospect that widespread industrial action could spread to the private sector.

The recent case law on industrial action offers clear lessons for those on both sides: perhaps most pointedly, to avoid own goals.

Given the complexity of the legislation, procedure and formalities matter. The principal battleground in recent litigation has been the detailed statutory scheme of balloting and notification requirements established in the 1990s. Initially, enterprising employers enjoyed considerable success in persuading the Courts that failures to comply with these detailed provisions meant that injunctive relief should be granted. These victories owed a great deal to unions failing to help their own cause.  Poor membership records and sloppy notification in particular often enabled employers to thwart strike action.

An important feature of these cases is that interim injunctive relief, rather than any ’final’ hearing, will most often prove the critical stage of the dispute. The ultimate success of a programme of industrial action can turn on whether a strike (scheduled to cause maximum disruption and exert maximum pressure) successfully goes ahead, or whether the employer’s lawyers are able to identify a procedural failing which can justify interim relief.

The Court of Appeal’s decision in Metrobus v Unite suggested that the courts would take a hard line on procedural compliance, and that even minor or technical failings could provide sufficient ammunition for an employer to frustrate planned industrial action. This was the case even where the strike manifestly enjoyed overwhelming support amongst the union membership. The unions, so it seemed, could not catch a break.  In BA v Unite (No 1), the union did themselves no favours by planning industrial action over Christmas – the most disruptive time possible, not just to BA but to the public.  Whilst this factor would have maximised the impact of the strike, in the end it merely served to encourage Cox J in granting an injunction.

However, the judicial pendulum appears to have swung. If the unions scored the first own goal, BA’s attempt to over-reach itself in its hard-fought confrontation with Unite might well be regarded as a second-half equaliser.

BA sought to open a new front in the strike litigation – arguing that the union’s failure to comply adequately with the requirements to notify its own members of the ballot result made the proposed action unlawful. While BA succeeded at first instance, a majority in the Court of Appeal rejected its case as opportunistic, and signalled that the legislation should not be interpreted simply as a series of traps for unwary unions, particularly where reliance is placed on breaches of provisions that exist for the protection of union members, rather than employers. Notably, the Court was divided with the Master of the Rolls and the Lord Chief Justice sharply differing in view – an important reminder that, even among the senior judiciary, the outcome in strike cases will very much depend on the sympathies of the Court.

The rebalancing between union and employer rights was continued by the important judgment of Elias LJ in RMT v Serco, given earlier this year. Elias LJ held that in some past cases the High Court had been overly generous to employers. He indicated that the legislation did not prioritise either side’s rights, but struck a balance between the competing interests.  While the procedural obligations on unions were important, the general principle of de minimis meant that strikes which enjoyed majority support and followed a fair ballot should not be regarded as unlawful merely on the grounds of technical or minor errors.  That still begs the question, of course, as to which breaches are to be regarded as merely technical or minor.

It remains to be seen how the recent guidance from the Court of Appeal will be interpreted and applied by the High Court in the context of the next wave of industrial action in the coming months.  Recent experience suggests that the quality of legal argument and tactics deployed on each side will be decisive in determining which side gains the industrial advantage.

Daniel Stilitz QC and Joseph Barrett are members of 11KBW’s Strikes team