Research Note: Injunctions as a Legal Weapon in Industrial Disputes in Britain, 1995–2005
| DOI | http://doi.org/10.1111/j.1467-8543.2006.00500.x |
| Author | Gregor Gall |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
British Journal of Industrial Relations
44:2 June 2006 0007–1080 pp. 327–349
© Blackwell Publishing Ltd/London School of Economics 2006. Published by Blackwell Publishing Ltd,
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Blackwell Publishing Ltd.Oxford, UKBJIRBritish Journal of Industrial Relations0007-1080Blackwell Publishing Ltd/London School of Economics 2006June 2006442327349Articles
Injunctions
as a Legal WeaponBritish Journal of Industrial Relations
Gregor Gall is at the University of Hertfordshire.
Research Note: Injunctions as a Legal
Weapon in Industrial Disputes in Britain,
1995–2005
Gregor Gall
Abstract
This research note examines the frequency, nature and context of employers
seeking legal injunctions in collective industrial disputes between 1995 and 2005.
The number of actual and threatened applications continues to be relatively
frequent compared with much of the period from 1980 to 1995, with employers
overwhelmingly gaining successful outcomes. However, usage is increasingly
concentrated in a small number of industrial sectors such as parts of the public
sector and semi-state industries.
1. Introduction
Despite much lobbying by trade unions of both the Labour Party prior to
1997 and the Labour Party in office since 1997 for reform of the Conserva-
tive governments’ (1979–1997) legislation which governs the conduct of
industrial action, the vast majority of this legislation remains intact and
unaltered (Smith and Morton 2001). This provides the basis for employers
to continue to seek, as before, injunctions
1
against trade unions to try to
prevent or end industrial action by union members. The purpose of this
research note is to examine the frequency, nature and context of employers
seeking injunctions in collective industrial disputes between September 1995
and August 2005 (i.e. a 10-year period). The time frame begins with the end
point at which previous research effectively concluded (see Gall and McKay
1996) and provides an opportunity to consider the possible impact and
influence of a number of wider and nonlegal phenomena concerning the
relationship between employer applications for injunctions and industrial
action.
328
British Journal of Industrial Relations
© Blackwell Publishing Ltd/London School of Economics 2006.
The consideration of these phenomena can best be undertaken when
expressed as a number of examinable propositions that help facilitate assess-
ment of the salient issues. The first group concerns industrial action
per se
.
The continuing decline in the number of strikes per annum will provide less
scope, if not need, for employers seeking injunctions. Moreover, the increasing
concentration of extant industrial action in the public sector will lead to less
scope for injunctions as public sector employers are less willing to seek
injunctions given their traditional pluralist management practice and ethos.
Furthermore, given that almost all industrial action is organized by unions,
the continuing decline in union membership will provide less of a basis on
which industrial action can take place, thus reducing the ambit for injunc-
tions. The second group concerns the changed industrial relations climate
since 1997. The rise of ‘partnership’ agreements will lead to less conflictual
industrial relations and therefore to less willingness to engage in confronta-
tion (strikes, injunctions). Employers, sensing the change in direction of
industrial relations under Labour governments (1997–2001; 2001–2005;
2005–) and the preference for treating unions as (junior) social partners, will
be less willing to engage in confrontation with trade unions through seeking
injunctions. Against this, the rise of the so-called awkward squad of new
union general secretaries since 1996 reflects a renewed willingness of unions
and their members to confront employers, leading to an enlarged possibility
of industrial conflict and, thus, scope for injunctions.
Applications by employers for injunctions in industrial disputes are appli-
cations, in the first instance, for an interim injunction, that is, a temporary
order granted by a judge to compel a trade union (or trade unions) to desist
from organizing industrial or strike actions pending a full hearing of the legal
issues at a later date when, in effect, the injunction can be confirmed or
rescinded. If the injunction is confirmed, it becomes an indefinite or per-
manent injunction. With the interim injunction, the burden of proof is less
onerous, merely focusing on whether there is an arguable case in law and that
the harm to be done to the employer is such that an eventual award of
damages would not be sufficient.
2. Methodology
The data for this research note were drawn from three secondary sources,
including (a) the periodic analyses of injunctions by the Labour Research
Department (LRD) and published in
Labour Research
(LRD 1995, 1997,
1998a, 2002); and (b) the LRD/TUC
Trade Union Trends
surveys on legal
actions against trade unions (LRD/TUC 1995, 1996a, 1996b, 1997a, 1997b,
1998, 1999, 2000, 2001, 2002, 2003). Although the first two sources are not
synonymous, there is some degree of overlap in the data collection. The
former is based on responses to enquiries to the major national unions. The
latter exclusively comprises returns from questionnaires sent to national
unions. On average, unions representing 52 per cent of the TUC’s affiliated
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