Are there any penalties which can be imposed on a union for intimidating behaviour by its representative or individual employees on a picket line?

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Published on LexisPSL on 12/01/2018

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Are there any penalties which can be imposed on a union for intimidating behaviour by its representative or individual employees on a picket line?

Are there any penalties which can be imposed on a union for intimidating behaviour by its representative or individual employees on a picket line?

The ‘right to picket’ provisions in section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) provide protection from any liability arising from a worker’s attendance at or near certain premises for the purpose of peaceful picketing. It is a right to be at a certain place so as to have the opportunity of persuading fellow workers and/or suppliers not to cross the picket line. The 'right to picket' does not itself include a right to persuade. However, the actions on a picket line may give rise to a number of potential liabilities in tort for both the pickets and the organising union (such as the ‘industrial tort’ of inducing a person to break a contract).

TULR(C)A 1992, s 220, provides no defence against any of these torts, but it may be possible by virtue of the statutory immunity offered by TULR(C)A 1992, s 219 to engage in the activity of peaceful persuasion without incurring liability, provided that:

  1. the person’s attendance and purpose fall within the peaceful picketing provisions

  2. the various other requirements for statutory immunity are fulfilled (for further information, see Practice Note: The right to take industrial action—Statutory immunity from liability)

  3. the action does not fall

  1. into a category in respect of which the statutory immunity is removed. For further information, see Practice Note: Unlawful types of industrial action)

For further information, see Practice Note: Picketing.

In general, where a trade union official attends with his or her members on the picket line, their legal position is the same as that of their members with regard to the protection against the industrial torts afforded by TULR(C)A 1992, s 219.

Activities that do not enjoy statutory immunity by virtue of TULR(C)A 1992, s 219, or fall outside TULR(C)A 1992, s 220, are not protected, and may give rise to criminal and/or civil liability depending on the circumstances. Indeed, the mere presence of a picket in these circumstances, without more, might, for example, involve the torts of trespass or nuisance (non-industrial torts); and threatening or abusive behaviour is likely to constitute a criminal offence.

Once peaceful persuasion becomes coercion by unlawful threats, or threatening or insulting behaviour, the perpetrators may find that they lose all their trade dispute defences against the industrial torts under TULR(C)A 1992, s 219. Indeed, if the activities are such that the true purpose of the picket itself can be shown to fall outside the confines of TULR(C)A 1992, s 220, it could lead to attendance of the pickets being held to be unlawful or illegal.

If a picket is organised by a trade union (or a union encourages its members to take part in it) then there are further supervision requirements which must be complied with to make it lawful (TULR(C)A 1992, s 220A). If a union does not comply with these supervision requirements the union and its members will not be protected from legal proceedings which claim that they have induced someone to break their contract or interfered with a person’s performance of a contract.

For further information about:

  1. picketing activities giving rise to criminal liability, see: Harvey NII [3521]–[3570]: Criminal assemblies

  2. picketing activities giving rise to liability in tort (non-industrial torts: trespass and nuisance), see: Harvey NII [3411]–[3520]: Tortious assemblies

  3. industrial torts, see: Harvey NII [701]–[3520]: The Industrial Torts, in particular the commentary on intimidation at Harvey NII [1601]-[1660]: Intimidation

Where a trade union official is present on the picket line, the union may be vicariously liable for torts committed.

Where the union is sued for trespass, nuisance, negligence, defamation or for any tort other than one of the 'industrial' torts, then the usual, common law test of vicarious liability applies to determine whether or not the union is liable, whether the tort is committed by an employed officer of the union (its servant) or by a shop steward or some other official of, or person representing, the union (its agent). For commentary on the doctrine of vicarious liability in this context, and an overview of the relevant case law, see: Harvey NII [3907]-[3920]: Non-industrial torts.

When it comes to the industrial torts (which includes the torts of intimidation, inducing a person to break a contract, causing loss by unlawful means and conspiracy), the vicarious liability of the union depends exclusively on the test set out in TULR(C)A 1992, s 20. The act is to be taken as done by the union if it is authorised or endorsed by the union (TULR(C)A 1992, s 20(1)), and it is to be taken as authorised or endorsed by the union if (to paraphrase) it was done, authorised or endorsed: (a) in accordance with the rules or (b) by the union leadership or (c) by some lesser authority within the union (TULR(C)A 1992, s 20(2)); save that in case c the union leadership may repudiate the acts of an underling provided that it does so promptly and in the prescribed manner. For detailed commentary on this, see: Harvey NII [3923]–[3950]: Truly official.

When it comes to possible penalties against a trade union where vicarious liability can be established, an employer may wish to consider:

  1. making an application for injunctive relief

  2. bringing proceedings for damages

There is a statutory cap on the amount of damages that can be awarded against a union for a tort committed in the course of an industrial dispute depending on the size of the union membership.

For further information, see Practice Notes:

  1. Trade union liability for industrial action

  2. Industrial action—guidance for employers

For further information, see: Harvey NII [3953]-[3980]—Limit on

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