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Breaches of Contract of Employment: Strikes

Brief : 108223

Delivery Date : 9/2/06

The courts have generally assumed that a strike, as a total cessation of work, will always constitute a breach of the contract of employment, regardless of the circumstances which provoked it." How far is this a reflection of the legal situation today and to what extent does the law protect all the parties involved in an industrial dispute?

OUTLINE

Introduction

- set context English labour law, define salient terms of strike and industrial action.

- brief reference socio-economic perspective to contextualise the law.

Analysis

Basic principles: Common law takes a strict line/ modified by balanced legislation for worker/employer protection

Simmons v Hoover Ltd [1976][1]: Philips J - a strike is a repudiatory breach of contract - consequence - employer may accept repudiation of contract and immediately terminate employment.

Distinction between official/unofficial industrial action - action must be authorised or endorsed by trade union. See provisions on ballots and notices etc.

Trade Union and Labour Relations (Consolidation) Act 1992 s.237 - no right to unfair dismissal claim on unofficial action. Also see: section.238

Employment Relations Act 1999

Employment Relations Act 2004

increases protection against the dismissal of workers taking official, lawfully-organised strike action, extension of protected period from 8 to 12 wks; lock out days exempted from 12 wk protected period; closer definition of the actions to be undertaken by employers and unions in industrial dispute resolution procedure; simplification of law on industrial action ballots, ballot notices

Discussion

Legal stance subject to prevailing political agenda. White Paper "Fairness at Work" (1998).[2] General trend and specific improvement of worker rights. Protected industrial action/employer’s reasonable procedural steps (see http://www.dti.gov.uk/er/union/employers-pl870.htm).

Conclusion

- emphasise need to strike balance between competing interests and the difficulty of achieving that equilibrium. Achieved by official/unofficial action distinction, fine-tuning procedural requirements.

- refer to the political and socio-economic context - days lost due to strike at lowest levels since records began in 1891[3]- due more to social economics than law.

- statutory immunities introduced to soften the impact of common law (workers interests) restricted by conditions safeguarding employer.

- striking workers receive more protection today than past decades, interests of employers protected by procedural rules on authorising strikes.

[300 words exactly]

RESEARCH TRAIL[4]

A good up-to-date standard legal text is a reliable point of departure for research trails in all but the most nascent legal contexts, where the Internet will often prove more useful. For the purposes of researching the question at hand, three books were chosen to establish the primary legal framework and derive further information channels. It is useful to examine at least two and preferably three different primary sources to guarantee an eclectic, balanced and comprehensive overview of the subject under review. The following sources were selected:

John Bowers, Michael Duggan and David Reade, The Law of Industrial Action and Trade Union Recognition (2004) Oxford University Press;

Brian Willey, Employment Law in Context, (2003) FT Prentice Hall;

Gwyneth Pitt, Employment Law, (2003) Sweet and Maxwell

Cross-referencing a selection of books allows key themes and provisions to be identified, it facilitates the verification of information and it allows gaps to be filled in and ambiguities which occur in one source to be understood. Read in combination, the above textbooks provided a both foundation of basic knowledge and information to allow the research trail to be developed to symbiotic effect along four specific and mutually supportive lines:

1. Case Law (textbook)

Simmons v Hoover Ltd [1976][5]

Williams v Western Mail & Echo [1980][6]

Bolton v Roadways Ltd v Edwards and Others [1987][7]

2. Legislation, including EU influences (DTI/Gov online full text sources supplemented by commentaries)

Employment Relations Act 2004

Employment Relations Act 1999

Trade Union and Labour Relations (Consolidation) Act 1992

EU Charter of Fundamental Rights trail (Nice EU summit)

3. Policy Documents and Proposals (derived from textbook further reading sections and keyword internet searches)

Department of Trade and Industry: http://www.dti.gov.uk/er/pres-rel.pdf

White Paper "Fairness at Work" (1998)[8]

DTI Press Releases[9]

Industrial Action and the Law PL870 (REV 6)[10]

TUC website[11]

4. Academic References (derived from textbook reference sections)

K Ewing, The Right to Strike (1991) Clarendon Press

Supported by Internet searches: keywords eg: UK strike law, industrial action law

And LexisNexis research system: http://www.lexis.com/.

Given the nature of the subject it was appropriate to focus research on the useful Government briefings available on the internet for authoritative and up-to-date material set out in an accessible fashion. Most of the best information can be derived from these sources and thereafter applied to cogent effect in answering the question posed.

See eg Research Trail:

DTI Home >

> Employment Relations >

> Union >

> Industrial Action and the Law PL870 (REV 6) http://www.dti.gov.uk/er/union/employers-pl870.htm >

> Unfairly Dismissed? PL712 (Rev 20) - URN 05/1911 http://www.dti.gov.uk/er/individual/unfair-pl712.htm

Law is an organic subject in a constant state of flux and development. In order to reflect the dynamism of the field and provide the most up to date and thus most useful and reliable response it is necessary to draw on the most up to date material, which if you are fortunate, will be available in recent newspapers or more likely on the vast information resource of the Internet. Publishing schedules which apply to most quality academic journals result in a delay of six to twelve months from submission to publication, thus, while offering an invaluable intellectual perspective, refereed articles do not provide the best resource for contemporary material and authority in the fertile field of industrial relations law. Out of date law can prove dangerously misleading and render a research trail nugatory.

In this regard it was also deemed appropriate to research using the IDS Brief Internet resource on employment: http://www.idsbrief.co.uk/# > recent case database (searchable archive), legislation > specific briefs. This material provided a useful supplement to the DTI resources studied, enriching my answer.

[600 words exactly]

THE END WORD COUNT: as per brief specification 300 (outline) and 600 (research-trail) (excluding footnotes and bibliography)

BIBLIOGRAPHY

Brian Willey, Employment Law in Context, (2003) FT Prentice Hall

John Bowers, Michael Duggan and David Reade, The Law of Industrial Action and Trade Union Recognition (2004) Oxford University Press

Gwyneth Pitt, Employment Law, (2003) Sweet and Maxwell

K Ewing, The Right to Strike (1991) Clarendon Press

White Paper "Fairness at Work" (1998) (CM. 3968)

Industrial Action and the Law PL870 (REV 6): http://www.dti.gov.uk/er/union/employers-pl870.htm.

Unfairly Dismissed? PL712 (Rev 20) - URN 05/1911 http://www.dti.gov.uk/er/individual/unfair-pl712.htm

LexisNexis Research System: http://www.lexis.com/

IDS Brief: http://www.idsbrief.co.uk/#

DTI Press Releases as cited

Cases as cited

Legislation as cited

1


Footnotes

[1] 3 WLR 901 EAT.

[2] (CM. 3968).

[3] http://www.dti.gov.uk/er/pres-rel.pdf

[4] It is submitted that a research trail on this question should consist of a description of the research undertaken, how it was accomplished and why it was necessary.

[5] 3 WLR 901 EAT.

[6] IRLR 222 EAT.

[7] IRLR 392.

[8] (CM. 3968).

[9] See eg: http://www.gnn.gov.uk/environment/detail.asp?ReleaseID=129922&NewsAreaID=2&NavigatedFromDepartment=False.

[10] http://www.dti.gov.uk/er/union/employers-pl870.htm.

[11] http://www.tuc.org.uk/index.cfm.


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