Collective action in the United Kingdom including the right to strike in UK labour law is the main support for collective bargaining. Although the right to strike (or "industrial action" traditionally) has attained the status, since 1906, of a fundamental human right, protected in domestic case law, statute, the European Convention on Human Rights and international law, the rules in statute have generated significant litigation. The "right of workers to engage in a strike or other industrial action" is expressly recognised in the Trade Union and Labour Relations (Consolidation) Act 1992 section 180,TULRCA 1992 s 180 and has been recognised repeatedly by the Court of Appeal as "a fundamental human right".,London Underground Ltd v RMT ICR 170, per Millett LJ. Also Morgan v Fry 2 QB 710, 'It has been held for over 60 years that workmen have a right to strike...' per Lord Denning MR, referring to the Trade Disputes Act 1906 and the House of Lords (now Supreme Court).Crofter Hand Woven Harris Tweed Co Ltd v Veitch AC 435, 463, per Lord Wright, the "right of workmen to strike is an essential element in the principle of collective bargaining". Also Mogul Steamship Co Ltd v McGregor, Gow & Co AC 25, 'I have always said that a combination of workmen, an agreement among them to cease work except for higher wages, and a strike in consequence, was lawful at common law; perhaps not enforceable inter se, but not indictable. The Legislature has now so declared.' Lord Bramwell referring to the Trade Union Act 1871

However, UK law has become "the most restrictive on trade unions in the Western world",Tony Blair, 'We won't look back to the 1970s' (31 March 1997) The Times, 'The essential elements of the trade union legislation of the 1980s will remain. There will be no return to secondary action, flying pickets, strikes without ballots, the closed shop and all the rest. The changes that we do propose would leave British law the most restrictive on trade unions in the Western world. The scenes from Wapping, Grunwick or the miners' strike could no more happen under our proposals than under the existing laws.' through a series of rule changes from 1979. In order for a group of workers to take strike action, they must,

hold a ballot of the workforce who will go on strike; inform the employer of the timing and duration of the strike; not conduct the industrial action for a purpose unrelated to terms and conditions of the workers' employment contract; not take industrial action against anyone but the employer of the affected workers; remain peaceful when conducting picket lines.

If those rules are breached, a trade union will be liable for damages to the employer for the cost of the industrial action, an injunction may be issued against the industrial action going ahead, and workers may be fired even for a good faith trade dispute. The rules on industrial action in the UK have been subject to heavy criticism from the International Labour Organization and led to violations in the European Court of Human Rights.

History

The right of workers to collectively withdraw their labour has always been used to make employers stick to a collective agreement.E McGaughey, A Casebook on Labour Law (Hart 2019 ) ch 10. S Deakin and G Morris, Labour Law (2012) ch 11 At critical moments of history, it also combatted political repression (e.g. the Indian Independence Movement up to 1947), prevented military coups against democratic governments (e.g. the general strike in Germany against the Kapp Putsch in 1920) and forced governments to abandon unpopular policies (e.g. the Ulster Workers' Council strike). Anti-democratic regimes cannot tolerate social organisation they do not control, which is why the right to strike is fundamental to every democratic society, and a recognised human right in international law.e.g. Certification of the Constitution of the Republic of South Africa ZACC 26, , confirming the right to strike as more important than a right to lock-out. Historically, the UK recognised the right to strike in statute at least since 1906.Morgan v Fry 2 QB 710, 'It has been held for over 60 years that workmen have a right to strike...' per Lord Denning MR, referring to the Trade Disputes Act 1906 and there was widespread support at common law back into the 19th century.e.g. Mogul Steamship Co Ltd v McGregor, Gow & Co AC 25, 'I have always said that a combination of workmen, an agreement among them to cease work except for higher wages, and a strike in consequence, was lawful at common law; perhaps not enforceable inter se, but not indictable. The Legislature has now so declared.' Lord Bramwell referring to the Trade Union Act 1871

Historically common law judges, like international law today, argued the right to stop work in a good faith trade dispute was an implied term in every employment contract.In the US, see Commonwealth v. Hunt, 45 Mass. 111 (1842) On the other hand, differently composed courts have asserted that the common law position sits at odds with international law: that a strike is a breach of contract,cf P Elias, 'The Strike and Breach of Contract: A Reassessment' in KD Ewing, CA Gearty and BA Hepple, Human Rights and Labour Law (1994) ch 11 and this creates tortious liability for unions organising collective action,See Taff Vale Rly Co v Amalgamated Society of Rly Servants UKHL 1, Quinn v Leathem UKHL 2 and South Wales Miners' Federation v Glamorgan Coal Co AC 239, reversed by the Trade Disputes Act 1906. unless it falls within an immunity from statute.e.g. Rookes v Barnard UKHL 1 and Metrobus Ltd v Unite EWCA Civ 2009 On this view, even though an employer is not liable for economic loss to workers who are collectively dismissed, a union could be liable to the employer for taking collective action. Economic torts have been said to include conspiracy to injure,e.g. R v Mawbey (1796) 6 Term Rep 619, 101 ER 736, cf Timeplan Education Group Ltd v NUT IRLR 457 inducement of breach of contract,Lumley v Gye (1853) 2 E&B 216 and tortious interference with a contract.Tarleton v McGawley (1793) 1 Peake 270, 170 ER 153

The Conspiracy and Protection of Property Act 1875, repeated in the Trade Disputes Act 1906 after the Taff Vale case created the "golden formula" that collective action by a trade union becomes immune from any liability in tort if done "in contemplation or furtherance of a trade dispute". UK tradition inspired the International Labour Organization Convention 87 (1948) articles 3 and 10,B Gernigo, A Odero and H Guido, 'ILO Principles Concerning the Right to Strike' (1998) 137 International Labour Review 441 the case law of the European Court of Human Rights under article 11,RMT v UK ECHR 366 and the EU Charter of Fundamental Rights article 28. However, the scope of the right to take collective action has been controversial. Reflecting a series of restrictions from 1979 to 1997, the law was partially codified in the Trade Union and Labour Relations (Consolidation) Act 1992 sections 219 to 246, which now falls below international standards.

Economic tort Taff Vale Rly Co v Amalgamated Society of Rly Servants UKHL 1 Quinn v Leathem UKHL 2 South Wales Miners' Federation v Glamorgan Coal Co AC 239 Trade Disputes Act 1906 Torquay Hotels Ltd v Cousins Rookes v Barnard AC 1129, UKHL 1

Right to strike

The Trade Union and Labour Relations (Consolidation) Act 1992 section 180 expressly recognises "the right of workers to engage in a strike or other industrial action", and section 219 contains the classic formula that collective action by a trade union becomes immune from any liability in tort if done "in contemplation or furtherance of a trade dispute". This said, various further hurdles must be jumped for a union to be certain of immunity from employers suing for damages, or an injunction to stop a strike.

The meaning of a "trade dispute" under TULRCA 1992 section 244 is confined to mean a dispute "between workers and their employer" and must mainly relate to employment terms. In BBC v Hearn ICR 686 Lord Denning MR granted an injunction against a strike by BBC staff to stop broadcast of the 1977 FA Cup Final to apartheid South Africa. He reasoned that this was a political dispute, not a "trade dispute", unless the union was requesting "putting a clause in the contract" to not do such work. Strikes against government legislation (rather than an employer),Express Newspapers Ltd v Keys IRLR 247 or privatisation,Mercury Communications Ltd v Scott-Garner ICR 74 or outsourcing before it happens,University College London Hospitals NHS Trust v Unison ICR 204, surviving an ECHR article 11 challenge in Unison v United Kingdom IRLR 497 have been held unlawful. However, at the least, any dispute over the terms or conditions on which workers do their jobs will allow protection.In re P (a minor) UKHL 8,

In re P UKHL 8 Demir and Baykara v Turkey ECHR 1345 Industrial Relations Act 1971, repealed by Trade Union and Labour Relations Act 1974, amended by Employment Act 1982

1926 United Kingdom general strike

Economic torts and common law

Lumley v Gye (1853) 2 E. & B. 216 Allen v Flood AC 1 Taff Vale Railway Co v Amalgamated Society of Railway Servants AC 426, Quinn v Leatham AC 495 South Wales Miners' Federation v Glamorgan Coal Co AC 239 Hill v CA Parsons & Co where the cause of the dispute was a union attempting to enforce a closed shop

Common law right? Crofter Hand Woven Harris Tweed v Veitch AC 435 Morgan v Fry 2 QB 710, Lord Denning MR says there has been a right to strike in the UK for over 60 years provided proper notice is given London Underground Ltd v RMT ICR 170

Immunity Trade Disputes Act 1906 and TULRCA 1992 s 219 Stratford (JT) & Son Ltd v Lindley AC 269 Rookes v Barnard AC 1129 Torquay Hotel Co Ltd v Cousins 2 Ch 106 Merkur Island Shipping Corporation v Laughton 2 AC 570 Barretts & Baird (Wholesale) Ltd v IPCS IRLR 3 Falconer v NUR IRLR 331, rail passenger gets £173 damages for strike without ballot TULRCA 1992 s 244, meaning of trade dispute Express Newspapers Ltd v Keys IRLR 247 BBC v Hearn 1 WLR 1004 Dimbleby & Sons Ltd v NUJ ICR 386, corporate veil precludes strikes against parent Mercury Communications Ltd v Scott-Garner Ch 37, no strike against potential takeover bidder University College London Hospitals NHS Trust v UNISON ICR 204, no strike against privatisation policy

International law and European Convention

Wilson and Palmer v United Kingdom IRLR 568 in the EHCRThe ECtHR's press release British Airways plc v Unite the Union (No 2) IRLR 809

Secondary action and company groups