Trade Union Law in the United Kingdom

Introduction

Trade union law in the United Kingdom governs the formation, regulation, and activities of trade unions, as well as the rights of trade union members and the conduct of industrial action. The law is governed principally by the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), which consolidated earlier legislation including the Trade Union Act 1984 and the Employment Act 1988. The law has been shaped by the tension between the recognition of collective bargaining rights and the regulation of industrial action to protect the public and the economy.

Trade Union Recognition

Trade unions may seek recognition from an employer for the purposes of collective bargaining. Recognition may be voluntary (agreed between the employer and the union) or statutory (compelled by the Central Arbitration Committee (CAC) under Schedule A1 to TULR(C)A 1992).

The statutory recognition procedure enables a trade union to apply to the CAC for a declaration that the union should be recognised by the employer for collective bargaining. The union must have at least ten per cent membership in the proposed bargaining unit, and a majority of the workers in the unit must be likely to support recognition. The CAC may order a ballot, and if a majority of those voting and at least 40 per cent of those eligible support recognition, the CAC must issue a declaration of recognition.

Collective bargaining under the statutory procedure covers pay, hours, and holidays, unless the parties agree otherwise.

The Right to Strike

The right to strike is not a positive right in UK law but is protected through a complex framework of immunities from tort liability. Section 219 of TULR(C)A 1992 provides that an act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort unless it is an act that is not protected by the immunity.

The immunity protects trade unions and their officials from liability for the economic torts (including inducing breach of contract, intimidation, and conspiracy) that would otherwise arise from calling or organising industrial action. The immunity is lost if the industrial action is not supported by a properly conducted ballot or if the union fails to give the employer proper notice of the action.

Ballots and Notices

The requirement for a ballot before industrial action is one of the most important restrictions on the right to strike. Section 226 of TULR(C)A 1992 requires that before authorising or endorsing industrial action, a trade union must hold a ballot and secure a majority of those voting in favour of the action.

The ballot must be fully postal, with voting papers sent to the members’ home addresses. The union must appoint an independent scrutineer to oversee the ballot. The ballot paper must specify the type of industrial action (whether strike action or action short of a strike) and the period within which the action is authorised.

The Trade Union Act 2016 introduced additional requirements: a minimum turnout of 50 per cent of those eligible to vote; and for important public services (health, education, fire, transport, and border security), a requirement that at least 40 per cent of those eligible to vote support the action.

The union must give the employer at least 14 days’ notice of the industrial action, specifying whether it is strike action or action short of a strike. The action must begin within a specified period (currently 12 weeks) after the ballot, or the union must re-ballot.

Picketing

Picketing — attendance at or near a workplace for the purpose of persuading workers to take part in industrial action — is lawful only if it is carried out peacefully and in accordance with the Code of Practice on Picketing. Section 220 of TULR(C)A 1992 provides immunity from liability in tort for peaceful picketing in contemplation or furtherance of a trade dispute.

The Code of Practice provides that the number of pickets at any entrance to a workplace should not exceed six. Pickets should not obstruct the highway, should not use threatening or abusive language, and should not attempt to prevent non-striking workers from entering the workplace.

Trade Union Internal Affairs

Trade unions are required to maintain a register of members, to hold elections for their principal executive committee at least every five years, and to keep accounting records. Section 24 of TULR(C)A 1992 gives members the right to terminate their membership at any time.

The Certification Officer oversees trade union regulation, including the maintenance of the list of trade unions, the certification of independent trade unions, and the investigation of complaints by union members about breaches of union rules.

Liability of Trade Unions

Trade unions may be liable in tort for acts authorised or endorsed by the union, including the calling of unlawful industrial action. Section 23 of TULR(C)A 1992 sets out the circumstances in which acts are taken to have been authorised or endorsed by the union.

The liability of trade unions in tort is subject to statutory caps on damages, which vary according to the size of the union: £10,000 for unions with fewer than 5,000 members; £20,000 for 5,000 to 25,000 members; £50,000 for 25,000 to 100,000 members; and £250,000 for 100,000 or more members.

Conclusion

Trade union law in the United Kingdom provides a complex framework that balances the right of workers to organise and take collective action against the need to protect employers, the public, and the economy. The statutory recognition procedure, the immunities for industrial action, and the requirements for ballots and picketing reflect the legislative compromise between collective labour rights and individual freedoms.