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Britain

Unlike several European countries, Britain does not have a constitutional right to strike, in fact no fundamental right to strike at all. Rather, Britain’s unions’ and members’ are protected from being pursued for damages by “immunities” (provided that the required legal procedures have been followed). And to attain these immunities a strike must only be in the pursuance of a “trade dispute”.

Once this is established unions are then required to follow set procedures laid down by parliament in order to be able to exercise their legal right to strike. It is a fact that this is not unique to Britain. For example, in Germany, it is caselaw rather than statutory law which defines what steps have to be taken in order to carry out legitimate strike action. However, here caselaw is more concerned with the aims and results of strike action than with the procedures to be followed prior to strike action occurring. Strikes must be “proportionate” to the goal pursued – ones which entail the “annihilation or erosion of the employer’s assets” are forbidden – and cannot start as long as negotiations are still taking place, even if the period of the “peace obligation” laid down by collective agreements in Germany is exhausted. What is of interest is that the principle of “ultima ratio” (last resort). In other words, they can be used only as a last resort.

On the other hand, private sector strikes in France are not subject to any restrictions, either by law or by the terms of a collective agreement. There is no obligation to engage in pre-strike conciliation procedures, no requirement to give notice of a strike, and no requirement that strike action be taken only as the “ultima ratio” (last resort). It is only when the public sector takes strike action when they are subject to certain legal requirements similar to those in Britain.

Except where less than 50 members are involved, the British union must organise a postal ballot of all members liable to take part in strike action. The ballot paper must conform to set legal requirements including a set wording. Occasionally a ballot paper has been contested by the employer where one word on the ballot paper is omitted or incorrectly inserted. On one occasion an employer argued that the letter ‘a’ was not included.

Following the above, the employer must then be given seven days notice of the ballot, and receive a copy of the ballot paper at least three days before the ballot opens. The trade union must tell the employer how many people are being balloted, what grades they belong to, the workplaces of these employees, how many employees in each grade and each workplace pay union dues by check-off, and an explanation of how these figures have been arrived at.

Once the votes have been counted, the employer must be given detailed information about the result “as soon as reasonably practical” (in practice: more or less straightaway), and so too must the members balloted.

The employer must be given at least seven days notice of a strike, which must be called within 28 days of the ballot result. Notice of the strike action must contain details about the numbers, categories and workplaces of those who will be striking.

Failure to follow strictly to any of the above can be contested by the employer in a British court who may subsequently rule a strike illegal such as where there has been a minor delay in informing the employer of the ballot result, where a union failed to inform its members individually (as opposed to via its website and noticeboards) of a handful of spoiled ballot papers, and where the inaccurate information provided by a union to an employer is due to the employer having given the union that inaccurate information. An example of how unions can be caught out by such laws came about in 2010 British Airways PLC v Unite The Union [2010] EWCA Civ 669.

In 2010 the Courts initially ruled that Unite had not correctly followed rules about contacting its members that worked for BA with strike result details. The decision was made because it had not told its members that 11 ballot papers had been spoilt in its latest vote on industrial action. This injunction was later appealed and won on a 2 to 1 majority, due mainly to the fact that the the ballot resulted in a large majority and that the union was:

not required to prove that every eligible member was personally sent an individual report and the infringements of the strict requirements necessary were minor and should not invalidate the ballot.

So the way in which law courts then go on to interpreted the laws simply adds another tier  to the problems which British workers have to encounter in trying to organise legal strikes.

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