Employment Act 1990

Industrial action and ballots E+W+S

4 Secondary action. E+W+S

(1) Nothing in section 13 of the M1 Trade Union and Labour Relations Act 1974 (acts in contemplation or furtherance of trade disputes) prevents an act from being actionable in tort on a ground specified in subsection (1)(a) or (b) of that section where one of the facts relied on for the purpose of establishing liability is that there has been secondary action which does not satisfy the requirements of this section.

(2) There is secondary action in relation to a trade dispute when, and only when, a person—

(a) induces another to break a contract of employment or interferes or induces another to interfere with its performance, or

(b) threatens that a contract of employment under which he or another is employed will be broken or its performance interfered with, or that he will induce another to break a contract of employment or to interfere with its performance,

and the employer under the contract of employment is not the employer party to the dispute.

(3) Secondary action satisfies the requirements of this section only if it is done in the course of such attendance as is declared lawful by section 15 of the Trade Union and Labour Relations Act 1974 (peaceful picketing)—

(a) by a worker employed (or, in the case of a worker not in employment, last employed) by the employer party to the dispute, or

(b) by a trade union official whose attendance is lawful by virtue of subsection (1)(b) of that section.

(4) For the purposes of this section an employer shall not be treated as party to a dispute between another employer and workers of that employer; and where more than one employer is in dispute with his workers, the dispute between each employer and his workers shall be treated as a separate dispute.

In this subsection “worker” has the same meaning as in section 29 of the M2 Trade Union and Labour Relations Act 1974 (meaning of trade dispute).

(5) An act in contemplation or furtherance of a trade dispute which is primary action in relation to that dispute may not be relied on as secondary action in relation to another trade dispute.

Primary action means such action as is mentioned in paragraph (a) or (b) of subsection (2) where the employer under the contract of employment is the employer party to the dispute.

(6) In this section “contract of employment” includes any contract under which one person personally does work or performs services for another, and related expressions shall be construed accordingly.

(7) Other expressions used in this section and the Trade Union and Labour Relations Act 1974 have the same meanings in this section as in that Act.

Marginal Citations

M1 1974 c. 52.

M2 1974 c. 52.

5 Minor amendments relating to ballots. E+W+S

(1) In Part II of the M3 Trade Union Act 1984 and section 1 of the M4 Employment Act 1988 (ballots about industrial action) references to a contract of employment include any contract under which one person personally does work or performs services for another; and related expressions shall be construed accordingly.

(2) For the purposes of section 11 of the Trade Union Act 1984 (requirements to be satisfied in relation to ballots) a member of a trade union who throughout the period during which votes may be cast is in Northern Ireland shall not be treated as an overseas member—

(a) where the ballot is one to which subsection (1A) or (1B)(a) of that section applies (workplace ballots) and his place of work is in Great Britain, or

(b) where the ballot is one to which subsection (1B)(b) or (c) of that section applies (general ballots) and relates to a strike or other industrial action involving members both in Great Britain and in Northern Ireland.

(3) In relation to employment to which section 127 of the M5 Employment Protection Act 1975 (offshore workers) applies, the references in subsection (2) above to Northern Ireland include any area where the law of Northern Ireland applies and the references to Great Britain include any area where the law of England and Wales or Scotland applies.

(4) In section4(1B) of the Trade Union M6 Act 1913 and section 2(5) of the Trade Union Act 1984 (requirements with respect to voting papers in political fund ballot or ballot for union office), in paragraph (a) after “must” insert “ state the name of the independent scrutineer and ”

(5) In section 15(2) of the Employment Act 1988 (duties of trade union with respect to independent scrutineer in case of political fund ballot or ballot for union office), after paragraph (b) insert—

“(bb) must, before the scrutineer begins to carry out his functions, either—

(i) send a notice stating the name of the scrutineer to every member of the union to whom it is reasonably practicable to send such a notice, or

(ii) take all such other steps for notifying members of the name of the scrutineer as it is the practice of the union to take when matters of general interest to all its members need to be brought to their attention;”.

Modifications etc. (not altering text)

C1 S. 5 excluded by S.I. 1990/2378, art.5(1)(2)

Marginal Citations

M3 1984 c.49

M4 1988c.19

M5 1975 c.71

M6 2 & 3 Geo. 5. c. 30.

6 Responsibility of trade union for acts of officials, &c. E+W+S

(1) Section 15 of the M7 Employment Act 1982 (liability of trade unions in certain actions in tort) is amended as follows.

(2) In subsection (2) (acts for which the union is responsible) for “it was authorised or endorsed by a responsible person” substitute “it is to be taken, in accordance with the following provisions, to have been authorised or endorsed by the union”.

“(3) For subsection (3) substitute—

(3) An act shall be taken to have been authorised or endorsed by a trade union if it was done, or was authorised or endorsed—

(a) by any person empowered by the rules to do, authorise or endorse acts of the kind in question, or

(b) by the principal executive committee or the president or general secretary, or

(c) by any other committee of the union or any other official of the union (whether employed by it or not).

(3A) For the purposes of paragraph (c) of subsection (3)—

(a) any group of persons constituted in accordance with the rules of the union is a committee of the union; and

(b) an act shall be taken to have been done, authorised or endorsed by an official if it was done, authorised or endorsed by, or by any member of, any group of persons of which he was at the material time a member, the purposes of which included organising or co-ordinating industrial action.

(3B) The provisions of paragraphs (b) and (c) of subsection (3) apply notwithstanding anything in the rules of the union, or in any contract or rule of law, but subject as follows.”.

(4) For subsection (4) substitute—

“(4) An act shall not be taken to have been authorised or endorsed by the union by virtue only of paragraph (c) of subsection (3) if it was repudiated by the principal executive committee or the president or general secretary as soon as reasonably practicable after coming to the knowledge of any of them.”.

(5) For subsection (5) substitute—

“(5) Where an act is repudiated—

(a) written notice of the repudiation must be given to the committee or official in question, without delay, and

(b) the union must do its best to give individual written notice of the fact and date of repudiation, without delay—

(i) to every member of the union who the union has reason to believe is taking part, or might otherwise take part, in industrial action as a result of the act, and

(ii) to the employer of every such member.

(5A) The notice given to members in accordance with paragraph (b)(i) of subsection (5) must contain the following statement—

“Your union has repudiated the call (or calls) for industrial action to which this notice relates and will give no support to unofficial industrial action taken in response to it (or them). If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal.”

(5B) If subsection (5) or (5A) is not complied with, the repudiation shall be treated as ineffective.”.

(6) After subsection (6) (no repudiation if subsequent behaviour inconsistent with purported repudiation) insert—

“(6A) The principal executive committee, president or general secretary shall be treated as so behaving if, on a request made to any of them within three months of the purported repudiation by a person who—

(a) is a party to a commercial contract whose performance has been or may be interfered with as a result of the act in question, and

(b) has not been given written notice by the union of the repudiation,

it is not forthwith confirmed in writing that the act has been repudiated.”.

(7) In subsection (7) (interpretation), at the appropriate place insert—

““commercial contract” means any contract other than—

(a) a contract of service or apprenticeship, or

(b) any other contract under which a person agrees personally to do work or perform services for another;”;

and omit the definition of “official” and “employed official”.

(8) After subsection (8) add—

“(9) In proceedings arising out of an act which is by virtue of this section taken to have been done by a trade union, the power of the court to grant an injunction or interdict includes power to require the union to take such steps as the court considers appropriate for ensuring—

(a) that there is no, or no further, inducement of persons to take part or to continue to take part in industrial action, and

(b) that no person engages in any conduct after the granting of the injunction or interdict by virtue of having been induced before it was granted to take part or to continue to take part in industrial action;

and the provisions of this section apply in relation to proceedings for failure to comply with any such injunction or interdict as they apply in relation to the original proceedings.”.

Marginal Citations

M7 1982 c.46

7 Calling of industrial action with support of ballot. E+W+S

(1) In section 11 of the M8 Trade Union Act 1984 (requirements for ballots on industrial action), after subsection (4) insert—

“(4A) The voting paper must specify who, in the event of a vote in favour of industrial action, is authorised for the purposes of section 7 of the Employment Act 1990 to call upon members to take part or continue to take part in the industrial action.

The person or description of persons so specified need not be authorised under the rules of the union but must be within section 15(3) of the Employment Act 1982.”.

(2) Industrial action shall not be regarded for the purposes of section 10 of the Trade Union Act 1984 or section 1 of the M9 Employment Act 1988 as having the support of a ballot unless it is called by a specified person and the following conditions are satisfied.

(3) The conditions are that—

(a) there must have been no call by the trade union to take part or continue to take part in industrial action to which the ballot relates, or any authorisation or endorsement by the union of any such industrial action, before the date of the ballot;

(b) there must be a call for industrial action by a specified person, and industrial action to which it relates must take place, before the ballot ceases to be effective in accordance with section 8 below.

(4) For the purposes of this section a call shall be taken to have been made by a trade union if it was authorised or endorsed by the union; and the provisions of subsections (3) to (7) of section 15 of the M10 Employment Act 1982 apply for the purpose of determining whether a call, or industrial action, is to be taken to have been so authorised or endorsed.

(5) In this section—

• “date of the ballot” has the same meaning as in Part II of the Trade Union Act 1984;

• “specified person” means a person specified or of a description specified in the voting paper for the ballot in accordance with section 11(4A) of the Trade Union Act 1984; and

• “trade union” has the meaning given by section 28 of the M11 Trade Union and Labour Relations Act 1974.

Modifications etc. (not altering text)

C2 Ss. 7, 8 excluded by S. I. 1990/2378, art. 7(1)

Marginal Citations

M8 1984 c. 49.

M9 1988 c. 19.

M10 1982 c. 46.

M11 1974 c. 52.

8 Period after which ballot ceases to be effective. E+W+S

(1) Subject to the following provisions, a ballot ceases to be effective for the purposes of section 7(3)(b) at the end of the period of four weeks beginning with the date of the ballot.

(2) Where for the whole or part of that period the calling or organising of industrial action is prohibited—

(a) by virtue of a court order which subsequently lapses or is discharged, recalled or set aside, or

(b) by virtue of an undertaking given to a court by any person from which he is subsequently released or by which he ceases to be bound,

the trade union may apply to the court for an order that the period during which the prohibition had effect shall not count towards the period referred to in subsection (1).

(3) The application must be made forthwith upon the prohibition ceasing to have effect—

(a) to the court by virtue of whose decision it ceases to have effect, or

(b) where an order lapses or an undertaking ceases to bind without any such decision, to the court by which the order was made or to which the undertaking was given;

and no application may be made after the end of the period of eight weeks beginning with the date of the ballot.

(4) The court shall not make an order if it appears to the court—

(a) that the result of the ballot no longer represents the views of the union members concerned, or

(b) that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.

(5) No appeal lies from the decision of the court to make or refuse an order under this section.

(6) The period between the making of an application under this section and its determination does not count towards the period referred to in subsection (1).

But a ballot shall not by virtue of this subsection (together with any order of the court) be regarded as effective for the purposes of section 7(3)(b) after the end of the period of twelve weeks beginning with the date of the ballot.

(7) In this section—

• “date of the ballot” has the same meaning as in Part II of the M12 Trade Union Act 1984; and

• “trade union” has the meaning given by section 28 of the M13 Trade Union and Labour Relations Act 1974.

Modifications etc. (not altering text)

C3 Ss. 7, 8 excluded by S. I. 1990/2378, art. 7(1)

Marginal Citations

M12 1984 c. 49.

M13 1974 c. 52.

9 Dismissal of those taking part in unofficial industrial action. E+W+S

(1) In Part V of the M14 Employment Protection (Consolidation) Act 1978 (unfair dismissal), after section 62 (dismissal in connection with lock-out, strike or other industrial action) insert—

“62A Dismissal of those taking part in unofficial industrial action.

(1) An employee has no right to complain of unfair dismissal if at the time of dismissal he was taking part in an unofficial strike or other unofficial industrial action.

(2) A strike or other industrial action is unofficial in relation to an employee unless—

(a) he is a member of a trade union and the action is authorised or endorsed by that union, or

(b) he is not a member of a trade union but there are among those taking part in the industrial action members of a trade union by which the action has been authorised or endorsed.

Provided that, a strike or other industrial action shall not be regarded as unofficial if none of those taking part in it are members of a trade union.

(3) The provisions of subsections (3) to (7) of section 15 of the Employment Act 1982 apply for the purpose of determining whether industrial action is to be taken to have been authorised or endorsed by a trade union.

(4) The question whether industrial action is to be so taken in any case shall be determined by reference to the facts as at the time of dismissal.

Provided that, where an act is repudiated as mentioned in subsection (4) of that section, industrial action shall not thereby be treated as unofficial before the end of the next working day after the day on which the repudiation takes place.

(5) In this section the “time of dismissal” means—

(a) where the employee’s contract of employment is terminated by notice, when the notice is given,

(b) where the employee’s contract of employment is terminated without notice, when the termination takes effect, and

(c) where the employee is employed under a contract for a fixed term which expires without being renewed under the same contract, when that term expires;

and a “working day” means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971.

(6) For the purposes of this section membership of a trade union for purposes unconnected with the employment in question shall be disregarded; but an employee who was a member of a trade union when he began to take part in industrial action shall continue to be treated as a member for the purpose of determining whether that action is unofficial in relation to him or another notwithstanding that he may in fact have ceased to be a member.”.

(2) Nothing in section 13 of the M15 Trade Union and Labour Relations Act 1974 prevents an act from being actionable in tort if the reason, or one of the reasons, for doing it is the fact or belief that an employer has dismissed one or more employees in circumstances such that by virtue of section 62A of the M16 Employment Protection (Consolidation) Act 1978 (dismissal in connection with unofficial industrial action) they have no right to complain of unfair dismissal.

(3) Expressions used in subsection (2) above and the M17 Trade Union and Labour Relations Act 1974 have the same meaning in that subsection as in that Act.

Marginal Citations

M14 1978 c. 44.

M15 1974 c. 52.

M16 1978 c. 44.

M17 1974 c. 52.