Picketing | Public Interest Disclosures

Key points

• It is lawful for a person, in contemplation or furtherance of a trade dispute, to attend:
  1. at or near his own place of work, or
  2. if he is an official of a trade union, at or near the place of work of a member of that union whom he is accompanying and whom he represents,
  for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from work. Picketing is not actionable in tort if it meets these criteria. But it is actionable as a form of industrial action if it does not have the support of a ballot or is done in order to put pressure on an employer to dismiss a non-union member (or to discriminate against him) or to 'persuade' him not to hire non-union workers (sections 219, 220 and 222, Trade Union & Labour Relations (Consolidation) Act 1992).

  Note

  For these purposes, an official of a trade union is a full-time officer of the union or of a branch or section of the union. The term also applies to an employee who has been elected or appointed (in accordance with the rules of the union) to represent fellow- employees in negotiations with his (or her) employer, ie a shop steward. Section 220(4) of the 1992 Act states that a full-time official of a trade union is regarded as representing the interests of all the union's members, whereas a shop steward is treated as representing the interests of only those members who work at his own place of work.

Attendance at or near his own place of work

• The 1992 Act does not explain what is meant by the expression 'at or near his own place of work'. However, the Code of Practice: Picketing (1992) (see below) explains that lawful picketing normally involves attendance at an entrance to or exit from the premises (such as a factory, depot, shop or office block) at which the picket actually works. In other words, it is unlawful for a picket to attend at an entrance to, or exit from, any place of work which is not his own – even if those who work at that other place are employed by the same employer or covered by the same collective bargaining arrangements. Nor is it permissible in law for a person to picket in any part of premises which are private property. Pickets who trespass may be sued in the civil courts.

  Note

  Section 220(2) of the 1992 Act does, however, draw a distinction in the case of employees (eg mobile workers) who work at more than one place, and those for whom it is impracticable to picket at their own place of work because of the remoteness or location of the site. In those circumstances, it is lawful for such employees to picket those premises of their employer from which they work or from which their work is administered. Thus, it may be more appropriate for contract workers to register their protest at the entrance to their employer's administrative headquarters.

  In the case of an employee who is no longer employed and whose previous employment was terminated in connection with a trade dispute, his 'place of work' for these purposes will be his former place of work (ibid. section 220(3)).

Secondary action and picketing

• As was indicated above, it is lawful for employees, who are in dispute with their employer, to picket peacefully at or near their own place of work – always assuming that the industrial action they have embarked upon is 'official'. In other words, it must have the support of a ballot conducted in accordance with the provisions of section 226 to 235 of the 1992 Act, must have been authorised or endorsed by the person specified on their ballot papers, and must have started within the period of four weeks beginning with the date of the ballot. Such pickets will be immune from any civil action for damages notwithstanding that they may have induced other employees to break their contracts of employment, or that they have disrupted the flow of goods and services to and from their employer's premises (ibid. sections 219 and 220).
  
  
• Cases may arise, however, where a trade union may induce its members employed by a supplier not to deliver goods to the premises of the employer in dispute with his workers. This is known as secondary industrial action (or 'sympathy' action). Such action is no longer lawful. In such cases, the supplier would be well within his (or her) rights to sue the trade union (and/or its representatives) for damages arising out of inducing his employees to break their contracts of employment and the interference with his contract to supply goods or services to the employer in dispute.
  
  
• In other words, secondary industrial action is lawful and immune from actions in tort if, but only if, it is done by employees in the course of peaceful picketing at or near their own place of work.
  
  
• Pickets who obstruct the highway, who damage property, or who use violent, intimidatory, threatening or abusive language or behaviour to 'persuade' workers, members of the public, van drivers, and the like, not to cross their picket lines are liable to arrest and could be prosecuted under the criminal law.

Code of practice on picketing

• The Code of Practice: Picketing (1992) referred to earlier was made by the Secretary of State for Employment and came into force on 1 May 1992 (replacing an earlier code made under section 3 of the Employment Act 1980). The code, which is available from The Stationery Office contains practical guidance for employers and trade unions on, amongst other things, picketing and the criminal law, the recommended number of pickets, the organisation of picketing, the role of the police, and so on, and should be studied with care