Burgess and others v Stevedoring Services Limited [2002] IRLR 810

Up until now, case law has held that a worker who sticks rigidly to his or her contract of employment with the object of disrupting her employer's business is taking part in industrial action Secretary of State for Employment v ASLEF (no.2 [1972] 2 QB 455 CA).

Trade unions have been hamstrung by the judgment of Lord Denning in that case who held that an employee who 'takes steps willfully to disrupt the undertaking...is guilty of a breach of his contract' even when the steps taken by the employee, such as a work to rule, would not usually be considered to amount to a breach of contract. This means that it is necessary to comply with the notoriously onerous balloting and notification provisions to protect both the union and the worker from legal action by the employer.

This perceived wisdom is now in doubt after the decision of the Privy Council in Burgess and others v Stevedoring Services Limited.

The case concerned an overtime ban by the Bermudan Industrial Union (BIU) in the port of Hamilton. The definition of 'industrial action' under Bermudan law includes 'any concerted course of conduct which...is carried out in breach of [the workers] contracts of employment...'. The Court held it to be unlawful industrial action and granted an injunction against the officers of BIU.

BIU applied for the injunction to be discharged. They failed before the courts in Bermuda and appealed to the Privy Council in London.

The Privy Council distinguished between two situations:

where the worker performs her duties within the confines of the contract in a way which does not suit the employer and is designed to be obstructive; and

where the worker refuses to do things outside the terms of the contract.
The first situation may amount to industrial action, whereas the second does not.

Although the judgment is helpful, it needs to be handled with caution. The legal analysis is over-simplistic and is hard to reconcile with the developing law on terms implied into contracts of employment.

We suspect that courts will be quick to distinguish other cases in the UK on their facts: a key feature of the overtime arrangements was that BIU was responsible for organising overtime gangs and workers were only required to undertake overtime once they had been assigned to a gang. If they were not assigned to a gang because of BIU's actions, then they could not be held responsible for failing to work overtime.

As the Privy Council said, however, if the workers had been assigned to gangs and then refused (on a concerted basis) to work overtime, then the legal position may have been different - ie the workers may have been participating in 'industrial action'. In practice, the latter scenario is likely to be more analogous to bans on voluntary overtime in this country, but tantalizingly the Privy Council blurred the distinction between voluntary and compulsory overtime in their example. However what is heartening about this case is the willingness of the Court to distance itself from the full impact of Lord Denning's judgment that has so often been used against trade unions in strike action injunctions.