Dealing with Discontent: Responding to Strike Action and Picketing

At the time of writing, nearly 50 UK universities have announced redundancy programmes, with many becoming the targets of industrial action as a result. Industrial action may also resume in relation to the USS Pension Scheme and pay and benefits issues. With the potential for further strikes this year, we consider what is permitted on the picket line and practical issues to address. This article has been provided ahead of the UHR 2024 Conference by the team at VWV.

Legal framework

Section 220 of the Trade Unions and Labour Relation (Consolidation) Act 1992, provides that it is lawful for workers to attend at or near their own place of work, and for trade union officials to accompany and represent them, in contemplation or furtherance of a trade dispute, solely for the purpose of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working. The following conditions must be met:

• The union must appoint a picket supervisor and provide them with a letter stating that the picketing is approved by the union.
• If requested, the picket supervisor must show the approval letter to any individual acting on behalf of the employer.
• The union or picket supervisor must take reasonable steps to tell the police—
• the picket supervisor's name;
• where the picketing will be taking place; and
• how to contact the picket supervisor.
• During the picketing, the picket supervisor must—
• be present and wearing something that readily identifies them as picket supervisor, or
• be readily contactable by the union and the police, and able to attend at short notice.

Code of Practice

The Code of Practice on Picketing provides practical guidance including:

• Location - Only attendance at, or near, an entrance to or exit from the "factory, site or office" at which the picket works is permitted.
• Peaceful conduct - Pickets may to seek to explain their case to those entering or leaving the picketed premises, and/or to ask them not to enter or leave the premises where the dispute is taking place. This may be done by speaking to people, distributing leaflets or carrying banners or placards putting the pickets' case. Any such activity must be carried out peacefully. Pickets must not require people to stop, or compel them to listen or to do what the picket asks them to do.
• Numbers - Large numbers on a picket line are likely to give rise to fear and resentment amongst those seeking to cross. Usually, no more than six pickets should attend at any entrance to, or exit from, a workplace. A smaller number will often be appropriate.
• Statutory immunity - Pickets and unions picketing lawfully are immune from the civil wrong of inducing employees to breach their contracts. It does not protect them from liability for other civil wrongs such as trespass or nuisance, or from criminal offences such as obstructing the highway or the entrance to premises or using threatening, abusive or insulting words or behaviour, or disorderly behaviour likely to cause harassment, alarm or distress.

Examples

Here are a few examples of picketing activities we have come across, that would likely amount to unlawful picketing:

• Unions and pickets using social media to invite external supporters to attend pickets, which can result in both excessive numbers and individuals joining the picket line who are not at their own place of work.
• Pickets seeking to block entrances to university buildings or campuses or obstruct vehicles seeking to enter or exit.
• Pickets using harassing or intimidatory language to those seeking to cross picket lines.
• Pickets refusing to identify a picket supervisor.

Practical options

As always in respect of industrial relations issues, clear communications with local representatives and senior trade union leadership are key, and can often resolve concerns or de-escalate infringing behaviour on the picket line. However, when such communications do not lead to a positive result, universities do have a number of other options for redress.

Where unlawful picketing has occurred and been endorsed by a union, a university could can pursue an application to the High Court for an injunction restraining the unlawful behaviour or a claim for damages. It is also possible to obtain injunctions against individuals who are engaged in unlawful picketing.

In a claim for damages, universities would need evidence of the wrongdoing and loss flowing from it, which may be more difficult for the University to establish than a commercial enterprise whose business is disrupted. Damages are limited by s22 TULRCA depending on the size of the union, as follows:

Universities can pursue the usual disciplinary actions against Individual employees who commit acts of misconduct during an unlawful picket. They can also take the same steps to remove trespassing picketers that they would take to remove any other trespasser.

If you have any queries please contact Bob Fahy, who specialises in employment law advice for our Higher Education clients on 07500 686 163.