Connex v RMT [1999] IRLR 249
The Court of Appeal has decided that industrial action consisting of a ban on overtime and rest-day working constituted strike action rather than industrial action short of a strike.
The distinction between the two types of industrial action is crucial as it can affect the lawfulness of the action. The union must, by law, ask members on the ballot paper which type of industrial action they want to take part in - strike action or action short of a strike. Only the type of action that a majority of members vote for will then be protected and immune from legal action by the employers or others.
The RMT balloted its members for industrial action over train conductors' conditions of work with Connex. The union asked its members, on the ballot paper, whether they would be prepared to take part in industrial action consisting of a strike. A majority voted "yes" and the union issued its notice indicating when the action was to start and that it would take the form of a ban on overtime and rest-day working. Connex sought an injunction to prevent the action, arguing that the RMT only had the protection of the law for strike action and a ban on overtime and rest-day working was action short of a strike.
A "strike" is defined in section 246 of the Trade Union and Labour Relations (Consolidation) Act 1992 as any concerted stoppage of work. There are two questions. What is a 'stoppage of work' and what is 'concerted'. The Court of Appeal said that concerted means mutually planned and that any refusal to work, if mutually planned, will be within the definition of a strike. A strike is a case where an employee refuses to work for a period of time for which he or she is employed to work.
While this was good news for the RMT in the Connex case, the decision has potentially serious ramifications for unions preparing for industrial action. The RMT had put the correct label on the industrial action and so neither the court nor the employers could prevent it taking place.
But the judgment widens the definition of strike and also leaves grey areas and questions unanswered. The difficulty of distinguishing between the two types of action remains. The judgment does not, for example, necessarily extend to a voluntary overtime ban. If you fail to volunteer to work overtime which you are not contractually bound to do, is that a period of time that you are employed to work for?
The view has often been taken in the past that industrial action consisting of a ban on overtime or rest-day working or, for example, a work to rule, is industrial action short of a strike. Now even more care will need to be taken to analyse whether the action proposed fits the definition of strike. The consequence of getting it wrong can be fatal to the action.
The case highlights the absurdity of the law. The Court of Appeal has lost sight of the purpose of the law and anyway it never fulfiled the purpose the Conservative government claimed for it. The reason for categorising the two types of industrial action, the Thatcher government would have us believe, was to enable trade union members to know exactly what they were being asked to vote for and take part in. Let the members decide in true democratic fashion. But the law defines the meaning of strike (section 146) and that meaning is not what most people think.
The Court of Appeal agreed that most members of the public think a strike means a refusal to work at all, but that was irrelevant. In other words, it did not matter what the people being asked to tick the ballot box thought they were voting for. So, the RMT had to ask members to take part in a 'strike' on the ballot paper by law.
But in practice, to explain to the members what that meant, the union explained in a circular that members were not being asked to go on strike but for a rest day and overtime working ban. The irony was missed - there was no legal obligation on the RMT to send the helpful circular. Nothing could demonstrate more clearly the uselessness of the law and the way in which employers can seek to exploit legal technicalities to stop industrial action.
But now, unions balloting for industrial action consisting of rest day working or an overtime ban, will need to ask members whether or not they are prepared to take part in industrial action consisting of a strike on ballot papers. Action caught by this wide definition of a strike may extend beyond a ban on over-time, possibly to a refusal to carry out defined tasks. Industrial action involving members not performing work which was available for them to do could possibly, after the Connex case, be classified as strike action.
This obviously has profound implications in terms of the likely outcome of any ballot. It may be that members are more likely to vote in favour of industrial action short of a strike than for strike action. Yet they may be in favour of the action contemplated, but are put off by it being termed 'strike' action. The law is therefore a barrier to the members knowing what they are being asked to vote for.
The effect of the Connex case will be reversed in part by an amendment introduced into the Employment Relations Bill by the Government. Section 229 of the Trade Union and Labour Relations (Consolidation )Act 1992 will be amended so that an overtime ban and a call-out ban will constitute industrial action short of a strike for the purposes of the ballot paper. It may be that the industrial action under consideration in the Connex case would fall within the revised section 229.
However, there may well still be types of industrial action which, after the Connex case, count as strike action and are not within the scope of the new section 229. The difficulty for trade unions is that where there is uncertainty, there is the scope for litigation by employers to challenge the action and history has shown the eagerness with which some employers take unions to court.