Unlawful types of industrial action
Unlawful types of industrial action

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Unlawful types of industrial action
  • Secondary action
  • Action to enforce union membership or impose recognition
  • Action in response to the dismissal of unofficial strikers

Industrial action will usually give rise to tortious liability at common law, both on the part of the participants and the trade union that organised it (for further information, see Practice Note: The right to take industrial action—Common law liability).

In some circumstances, particularly where action is taken in contemplation or furtherance of a trade dispute, statutory immunity from an action in tort may arise (see Practice Note: The right to take industrial action—Statutory immunity from liability).

However, certain types of industrial action are deemed to fall outside the protection against tortious liability provided by the statutory immunities, even if the conditions necessary for the immunities to apply are otherwise satisfied:

  1. secondary action (see: Secondary action below)

  2. action to enforce union membership or impose recognition (see: Action to enforce union membership or impose recognition below)

  3. action in response to the dismissal of unofficial strikers (see: Action in response to the dismissal of unofficial strikers below)

Secondary action

The statutory immunity against tortious liability will not apply where the industrial action in question:

  1. amounts to secondary action

  2. which is not lawful picketing

In a trade dispute, ‘secondary action’ is:

  1. action that:

    1. induces another person to breach a contract of employment, or

    2. interferes or induces another person to interfere with the performance of a contract of employment, or

    3. consists of a threat to do any of those things

  2. where the employer

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