11 November 2014

By Professor Alan Bogg, University of Oxford and Professor K D Ewing, King’s College London.

How should workers respond to bullying and intimidation tactics used by employers during industrial action disputes? Two leading academics consider the current dispute in the university sector.

It is a remarkable feature of British labour law that the worker who takes industrial action is usually regarded as having committed a repudiatory breach of contract. This is true in relation to strikes, as well as industrial action short of a strike, such as a work-to-rule or a refusal to undertake certain duties.

This remains true even if the strike is a lawful strike, directed at legitimate purposes and fully compliant with the strict rules on notice and ballot requirements. It also remains true regardless of the purpose of the action – whether it is designed to improve terms and conditions of employment, or, in the case of the current UCU dispute, defend long established terms and conditions of employment.

The legal status of industrial action means that employers have several sanctions they can impose on staff. In the current dispute between the universities and their staff over pensions, employers are no doubt being advised by their lawyers about how best to retaliate. These lawyers are likely to have been trained by the very people against whom they are now advising. One line of advice we have seen is that the employers may seek to recover from academic staff any losses incurred by the university, should the university be sued by students as a result of the dispute.

Historically, there are examples of legal steps of this kind in the law reports. They stand out because the practice of suing strikers for breach of contract is exceptional. Most employers during a dispute want nothing more than to resolve the strike through negotiation. Most employers realise that bullying individual strikers through suing for breach of contract is petty, short-sighted, and inflammatory.

It is a matter of surprise and horror that some university employers are threatening precisely to take such action against individuals participating in an assessment boycott in the current dispute over the pension settlement. The senior management teams of at least three universities seem to be taking us back to Taff Vale with this intimidation of individual strikers. Taff Vale was the infamous case in 1901 in which a railway company sued a trade union for damages caused by a strike.

What is being proposed now over 100 years later is of course much worse. Employers can no longer sue trade unions for damages in lawful disputes such as the UCU pensions dispute. Even if they could, there would be a cap on the amount that could be extracted by way of damages from a union – a cap laid down in a statute introduced by the Thatcher government. But there is no such protection for individuals, this having been thought to have been unnecessary in our more civilised industrial past.

We have no idea who is providing legal advice to employers. It appears, however, that this is not the first time that this tactic has been contemplated by employers and others. In the course of a previous dispute in the university sector, a leading law firm advised that

…. if a university is sued by a student for breach of contract, in relation to the impact of the industrial action, the university could seek to join members of staff to that litigation and to recover from them any damages which are awarded to the student. This is, of course, not necessarily a line which universities would wish to take. Nevertheless it may be something which could be communicated to staff as a possibility by institutions wishing to take a particularly robust position in relation to the dispute. For example when communicating any policy on deductions, universities could also state that they reserve their legal rights to join members of staff as parties to any litigation brought by students.

We suspect that the current threat to sue is an empty threat, designed to intimidate individuals and discourage them by spreading fear. So far as we are aware, there has been no reported case since 1959 in which an employer - university or otherwise - has sued an individual striker for breach of contract. The last employer to do so was the National Coal Board, which brought proceedings against pit deputies who had refused to take part in Saturday working, bringing production to a standstill as a result.

Apart from the fact that it was decided so long ago, the notable feature of the pit deputies case is that the principles for the assessment of damages in unusual cases of this kind are very unclear. As a result, the decision provides absolutely no basis for the universities’ facile claim that they will (i) seek to recover damages from employees, (ii) assessed on the basis of any losses they suffered as a result of an action by students. It is not so simple, no matter how hard the employers may bark otherwise.

In the pit deputies case, there was no question of the workers being liable for the loss of production caused by the industrial action. At best, they were responsible for the losses incurred in hiring replacements to provide the cover necessary on a Saturday. Although only a small sum of damages was eventually assessed, as a result the decision remains highly contestable, not least because it takes no account of the employer’s duty to mitigate its losses in contract claims.

If the threats are empty gestures by bullying employers, the universities issuing such threats may be regarded as breaking the employment contract through a breach of the term of mutual trust and confidence. This has been used as a standard to challenge other forms of workplace bullying and harassment by employers, and the issuing of threats known to be empty but with the objective of intimidating, particularly in an otherwise lawful dispute, would seem to constitute a repudiatory breach of contract by the employer.

Why is this important? One reason is that it is unfair to dismiss an employee for taking part in lawful industrial action. To engage in conduct during industrial action that by its bullying nature constitutes a repudiation on the part of the employer would provide for employees to leave en masse and to claim that they had been constructively dismissed. By their conduct, university managers run the risk of exposing their institutions to even greater liability than they probably anticipated.

More importantly, however, on 8 April 2014, the European Court of Human Rights published a crucially important decision in a complaint brought by rail union RMT about restrictions in British law on the right to strike. Although the claim was unsuccessful on the merits, the Court held that the right to strike is ‘clearly protected’ by the European Convention on Human Rights, Article 11. Penalising strikers in lawful disputes through threats to sue appears to be incompatible with the growing case law under Article 11.

The imposition of financial penalties on individual workers for participating in lawful industrial action is a basic violation of workers’ human rights as recognised by the Strasbourg court. Under the Human Rights Act, domestic courts must have regard to that European jurisprudence in developing the common law, including implied terms such as mutual trust and confidence. The management teams at the ‘Taff Vale’ universities, as well as their wise legal advisers, will surely be aware of these recent developments.

While these new developments are being processed, we note that some of these universities portray themselves as defenders of human rights, with fancy human rights programmes. What are students to make of this hypocrisy? That these universities are prepared to trade in human rights only as a commodity? That these universities do not respect the human rights of those they employ? That these institutions have been so damaged by their managers that they have no intellectual credibility? Intellectual credibility is also a commodity.

The university employers have provided an open goal for the Strasbourg court, by ruthlessly exploiting one of the last unprotected frontiers of British labour law. As we have explained, British workers who take part in a strike or other industrial action have a right not to be dismissed for doing so. But they have no express protection against action short of dismissal of the type now threatened by the ‘Taff Vale’ employers, unless they were to resign and claim that they had been constructively dismissed by the bullying conduct of their employer.

But no one should have to resign from their employment to assert their human rights or to protect their human rights from the bully. If these threats are carried out, their union would surely support the workers in question - to hold these employers to account in the domestic and European courts. It would be remarkably ironic if these human rights defenders were to become human rights defendants It would also be extremely helpful to workers everywhere if by their stupidity the university employers were unwittingly to contribute to the introduction of legislation protecting the right of every worker not to suffer detriment for engaging in lawful activity.

That would be quite a legacy.