In December, I published a piece arguing of No Deal that:

For the hundreds of thousands who will lose their jobs this is no joke; to save our democracy this is no drill; it is no rehearsal for the sick and the vulnerable who will suffer if the government’s planning fails.

If the government will not listen, if it refuses to recognise the supremacy of parliament, we must have a general strike.

I do not write to make that case again here. However, it is of the very nature of a General Strike that it is a response to multiple failures of the institutions of Government and the State. And, unsurprisingly, the ability to deliver a General Strike is closely constrained by the law.

With that in mind, I asked Bruce Carr QC to advise on whether and how such a thing might happen. Mr Carr was appointed by the Government in 2013  to lead an Independent Review of the Law Governing Industrial Disputes. He is a, if not the, pre-eminent trade union lawyer presently in practice.

His advice follows. If you are willing and able financially to support activities such as these please do so here.

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RE: A GENERAL STRIKE AS A RESPONSE TO BREXIT

OPINION

1. As the current deadline of March 29 approaches and the prospect recedes of a deal being concluded under which the UK continues some sort of relationship with the EU, the attention of many has turned to how to respond to a disorderly ‘no deal’ Brexit. One suggestion of has been that there should be some form of ‘general strike’ in order to show the strength of feeling across the country and as a means of forcing the government to re-think its strategy (such as it is). If this idea gains traction, it seems highly likely that at least some affected employers will wish to take action in response to it. The question then arises as to whether the calling of a general strike would be lawful and if not, what might be the response of (at least some) employers?
2. It may be helpful at this stage to set out a few basic legal principles which are relevant to the taking of strike action. A strike as most of us understand it – and as it is defined in section 246 Trade Union & Labour Relations (Consolidation) Act 1992 – involves a concerted stoppage of work. It is the concerted – or collective – aspect of the action which brings pressure on the employer and forces them to the negotiating table. From an individual’s perspective however, the legal analysis begins with that person’s contract of employment. Strike action will invariably involve a breach of contract by a worker – he or she has agreed under their contract to work at particular time – by taking strike action he/she has broken that obligation. The breach may be sufficient to justify termination of the contract (dismissal) but will certainly allow the employer to make a deduction from wages. However, such actions do not happen out of the blue and there is invariably a call for industrial action which leads the collective withdrawal of labour. The next issue therefore is what are the legal consequences for the person or organisation that calls for such action?
3. A call for industrial action will generally involve committing the tort of inducement to breach of contract. If A calls on B to withdraw his or her labour and this causes loss (or potential loss) to B’s employer C, C will have a cause of action in tort against A for inducing the breach of contract by B. C’s remedies will include an action for damages or an injunction, part of which may require A to take steps to withdraw the call or inducement. For the tort to be established, it must be shown that A knows that he is inducing a breach of contract and that the inducement was an operative cause of the breach – in other words, that the unlawful act (the breach of contract) would or might not have been done but for the intervention of A.
4. This (common law) position is modified in relation to trade unions who would otherwise obviously face inevitable bankruptcy if they called on their members to take strike action – potentially unlimited claims for damages would soon deplete their financial resources. To prevent this from happening and to allow worker to take industrial action, immunity is created in relation to actions based on what are known as ‘the industrial torts’ – of which inducement to breach of contract is by far the most common. The immunity is found in section 219 TURLCA which provides that:

 “an act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only – (a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance.” (emphasis added)

5. There are two important points to note from this extract. The first is that the statutory immunity is not exclusively the territory of trade unions – the section is clear in its terms in that the immunity (when it applies) applies to any person not simply to a trade union. There are however additional consequences which flow in relation to trade unions and which I will deal with below. The second point is that the immunity applies only to actions done “in contemplation or furtherance of a trade dispute”. The question which then flows (and which is answered by section 244 TULRCA) is – what is meant by a trade dispute? The opening words of section 244 are important in that they define a “trade dispute” as being one “between workers and their employer”. There then follows a fairly extensive list of sorts of issues that arise in employment relationships including terms and conditions of employment, matters of discipline and machinery for consultation and negotiation.
6. Two consequences therefore flow from section 244 and which then feed back into the immunity from suit provided for under section 219 – first, there must be a dispute between workers and their employer. Plainly a general strike called in opposition to the government’s handling of Brexit would not involve (expect perhaps in the case of civil servants – as to which see below) a dispute between workers and their employer. The dispute would of course be one between those taking strike action and those responsible for a potential ‘no deal’ exit from the EU. Indeed there may be many employers who are sympathetic to the cause but who are nevertheless faced with their workers going on strike. Secondly, even if one were to get over the hurdle of the necessary parties to the dispute (worker and employer), a Brexit-inspired general strike would not fit into any of the subs-sections of section 244 as it would not involve terms and conditions of employment or any of the other 6 gateways set out in section 244(1)(b) – (g).
7. This second difficulty would of course also impact on civil servants who might wish to take such strike action. Although they may be in dispute with their employer and although they are treated as workers for the purpose of TULRCA (by virtue of section 245 – which thus avoids subtle and unresolved questions about the contractual status of those employed by the Crown), the nature of the trade dispute would still mean that it is unprotected within the scope of section 219. Even if one were to try to argue that the strike was motivated by concerns about the stability or terms of their employment post a no deal Brexit, it is highly likely that the dispute would be seen as essentially a political one and therefore not a ‘trade dispute’ within section 244 and thus outside the immunity provided under section 219. There is well-established authority for the proposition that politically motivated disputes fall outside the statutory immunity – see Mercury Communications v Scott-Garner [1983] ICR 74, a case involving a dispute found to be primarily about opposition to the privatisation of telephone network.
8. The upshot of all of this is that anyone calling for a general strike leaves themselves exposed to a risk of actions in tort based on inducement to breach of contract and in relation to which there is no immunity from suit under section 219. As far as trade unions are concerned, even if there were a means by which the difficulties I have outlined in relation to section 219 could be overcome, they would nevertheless by required to undertake a statutory ballot is provided by section 216 TULRCA. In other words, for a trade union to have immunity from suit, not only must any action be done “in contemplation or furtherance of a trade dispute”, but they must also have conducted a ballot of their membership and achieved a majority vote based on at least a 50% voter turn-out – see section 226 TULRCA.
9. It is perhaps worth making the point though that an inducement to breach of contract has to be exactly that – an inducement which then operates on the worker so as to cause him or her to desist from working. There is therefore some scope for taking action which falls short of being an inducement – for example by indicating one’s own intended course of action and leaving others to make up their own minds. It can of course still be argued that even an announcement at that level will operate as an inducement but the level of risk could be reduced by making sure that any announcement made it clear that it was not an invitation to others to follow suit and that if they did so they would in all probability be acting in breach of their contracts of employment which might in turn lead to a negative response from their employer. One notes however, that when conducting a ballot for strike action, trade unions are required as a matter of statute, to put a ‘health warning’ on the ballot paper informing their members that strike action will amount to a breach of contract – see section 229(4). Thus it can be inferred that simply telling someone that what they are doing is unlawful does not make an inducement cease to be one. The strategy of leading by undeclared example therefore remains a risky one, particularly if one rolls forward to the potential cross-examination of a striking worker who says that they took the action they did because they saw others publicly announcing an intention to do something similar.
10. Is there any way of successfully defending an action based on inducement to breach of contract, at least where the inducement is otherwise established? There is, in theory at least, a potential defence based on justification. In OGB v Allen & others [2007] IRLR 608, the House of Lords expressly recognized the existence of such a defence (see for example, Lord Nicholls at paragraph 193). However the scope of the defence remains uncertain and its application to a political dispute such as one based on the government’s Brexit policy, extremely tenuous. In addition, even if one were to run a defence of justification, a defendant’s conduct needs to be justified as against the claimant – see Grieg v Insole [1978] 3 All ER 449. In other words, those calling for a general strike because of what the government was doing or not doing, would have to justify an infringement of the rights of employers who are likely to be wholly innocent of any connection with government policy and who in many cases may in fact be sympathetic to the objectives of their striking workers.
11. Which of course leads to another potential lifeline for those wanting to take strike action. A legal case, if one is brought, is likely to be instigated by a pro-Brexit employer who is affected by strike action – the owner of a chain of public houses might be one possible example. On the other hand an employer sympathetic to the idea of strike action would not only be much less likely to bring a claim but may in fact go one step further and sanction the absence of his or her employees from work. If therefore the action became less ‘general strike’ and more ‘general shutdown’ the risks to the instigators of the action would be substantially reduced. If therefore the call were therefore one made to both employers and employees to show their dis-satisfaction by ceasing their respective economic activities, then the likelihood of legal action recedes. The call would not be for workers to breach their contract but for workers and employers to show their opposition to a potentially catastrophic government policy. However, whilst there are likely to be many employers who are in line with the opposition to a no deal Brexit, the question of how many would be prepared to allow a shut for a day or more as part of that opposition, remains very much an unanswered one. Such action would be unprecedented in my experience – but then, we are living in unprecedented times.

BRUCE CARR QC

Devereux Chambers

27 February 2019