Government may challenge validity of industrial action says High Court

In a case involving a proposed strike by sixth form college teachers, the High Court accepted that the Secretary of State could challenge industrial…

In a case involving a proposed strike by sixth form college teachers, the High Court accepted that the Secretary of State could challenge industrial action in light of the public interest involved.

This is understood to be the first case of its kind as, usually, a challenge to industrial action can only be brought by the affected employer.

The facts

A strike or other industrial action will usually involve the union in a tort (a breach of the civil law). This is most likely to be the tort of inducing a breach of the employees’ contracts. If there is a genuine ‘trade dispute’ (and the industrial action is properly organised in accordance with strict balloting and notification rules) the union will be immune from liability.

However, if an employer thinks these requirements have not been met, it can apply to the High Court for an ‘interim injunction’ to stop the industrial action taking place. Although this is technically only a provisional measure, the granting of an interim injunction will very often put a permanent stop to industrial action.

In this case, the National Union of Teachers (NUT) called upon teachers in sixth form colleges to carry out a day of industrial action, primarily regarding pay and funding cuts. Although the colleges were state-funded, they were independent institutions and the teachers were employed directly by the colleges and not by the Secretary of State.

The Secretary of State argued that the proposed action was unlawful as it was not being taken ‘in furtherance of a trade dispute’. The Government sought to stop the strike from going ahead, arguing that its predominant purpose was the ‘political’ objective of securing increased funding for sixth form colleges.

The decision

The High Court accepted that the Secretary of State’s responsibilities included sixth form colleges and that any strike would affect the public. On these grounds, the Court was satisfied that it was in the public interest to consider the Secretary of State’s application to stop the industrial action from going ahead.

However, the High Court rejected the assertion that the proposed action was not a ‘trade dispute’. If the case ever proceeded to a full trial, the Court found that it would have been likely it would have held that part of the purpose of the action was to protect jobs (by securing increased funding for sixth form colleges’). While the strike would cause disruption, the Court said this was ‘classic trade dispute territory’ and the strike should be allowed to go ahead.

Comment

Although, on the facts of this case, a declaration was not granted, and the strike was allowed to go ahead, this decision indicates that the Court may be willing to consider interventions by the Secretary of State in appropriate cases. This is a significant development as previously only an employer would be allowed to challenge the validity of a proposed strike.

In this case the colleges, who employed the striking staff, had not sought to challenge the industrial action and supported the call for increased funding. However, the Secretary of State, who had no legal ‘cause of action’ in the case, was permitted to bring a challenge because she was both the ‘target’ of the strike action and ‘the guardian of Education in England and Wales’.

The Government’s Spring Budget has paved the way for a fresh round of cuts across a broad range of sectors. Against this background, it is extremely difficult to draw a line between ‘politically’ motivated action and a ‘private’ dispute strictly between employer and employees.

The Government’s recent announcement that all schools will ultimately be given academy status and will receive funding directly from central government may further blur these lines in the education sector.

While the full impact of this decision remains to be seen, it may open up the door for the Government to directly challenge strike action in future cases.

 

Paul McFarlane (paul.mcfarlane@weightmans.com) is a Partner in the Employment, Pensions and Immigration Team at Weightmans LLP and is based in London. He specialises in advising employers in relation to trade union issues and industrial disputes.

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