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“Leverage”: A dangerous and unpredictable approach to industrial action?

The recent industrial dispute at Grangemouth has highlighted the willingness of the Unite union to use “leverage” to attempt to persuade an intransigent employer to change its mind about making changes to the terms and conditions of the workforce which the employer said were necessary to save the business.

After talks broke down, Unite arranged for around 30 people to stand outside the home address of one of the directors and sent “wanted” posters to the daughter of another director.

Ultimately Unite were unsuccessful and it was forced to agree to the business’s terms, not least because the business made it clear that it intended to close the plant down, with the potential loss of around 800 direct jobs and hundreds of others in the community.

Is this type of action lawful and what options are open to employers faced with such action? 

“Leverage” is a catch-all term for a wide variety of action short of industrial action. It can include action within the workplace, such as flash protests, but also, as happened at Grangemouth, activities against the Company’s directors, shareholders, investors, customers and suppliers.  Unlike secondary picketing (which was banned years ago, largely as a result of its use during the miners’ strike of the 1980’s) leverage is lawful provided it does not contravene other civil or criminal laws.

Picketing is also lawful provided it takes place on a public highway outside the workplace.  Pickets are free to try and persuade anyone who may be willing to listen to support their action by not working. The basic right to picket is enshrined within Articles 10 and 11 of the European Convention on Human Rights, namely the right to freedom of expression and the right of freedom of peaceful assembly. However, it is fairly limited: the police are still entitled to take action to prevent a breach of the peace, and that can include requiring a perfectly orderly picket line to move along if a breach of the peace is reasonably believed to be imminent.

So-called “secondary picketing” arises when the picket steps outside these statutory provisions either by way of picketing somewhere other than at his own workplace, or intends to, or uses other methods of “persuasion” such as violence (or the threat of violence). In Grangemouth, the tactics operated were not classed as secondary picketing because they were intended to influence the management and not the employees.  This is an interesting distinction and given the adverse publicity generated, one that the Government may look to close down in the future (more on this later).

As a tactic within an industrial dispute, leverage is certainly potentially direct, hard-hitting and likely to attract attention (and as Unite found out there is such a thing as bad publicity).  There is a careful balancing exercise to be carried out by trade union, employee and employer in this type of situation: a trade dispute can easily be won or lost if public opinion turns against one side, regardless of the legitimacy of their arguments.

One of the key considerations for a business subjected to leverage action is whether or not the activities are in breach of any law. Whilst the activities may not fall foul of the Trade Union and Labour Relations Act 1992 as secondary picketing, there are other laws to consider: trespass, nuisance, harassment and defamation to name but a few. Employees will need to decide if they are prepared to take the risk of civil actions or even prosecution in the furtherance of their objectives.  Employers will need to ensure that they are ready to gather evidence quickly, and are prepared to update key clients and suppliers as to any risks they may face.  They also have to be prepared to take speedy legal action either by way of reports to the police, or applications for injunctions if that is deemed more appropriate.

Following the dispute, the Government has announced an inquiry into industrial dispute legislation to assess whether the law needs to be tightened in order to prevent intimidation and harassment. There have also been calls for a review of strike laws generally, particularly in light of at least two cases being pursued in the European Court of Human Rights which, if successful, would have the effect of concluding that UK law on strike balloting is incompatible with Article 11.

With an election on the horizon, industrial relations are likely to be a key area of the battleground in the months ahead, and as a consequence employers may find they have to deal with leverage sooner than they expected.