STRIKES AND EMPLOYMENT CONTRACTS

AuthorKen Foster
DOIhttp://doi.org/10.1111/j.1468-2230.1971.tb02327.x
Publication Date01 May 1971
STRIKES
AND EMPLOYMENT CONTRACTS
THE
Industrial Relations Bill
1971
has already caused
a
great deal
of controversy in the political cockpit but
it
also has far-reaching
consequences for the labour lawyer-as grent as the
1925
property
legislation had for the conveyancer,
if
not necessarily as permanent.
However, one issue of fundamental importance
to
the lawyer
has been neglected during the protracted debates upon the new Bill.
This is the question of the
effect
of strike action upon the contract
of employment. The answer
is
of crucial significance, for one of the
basic underlying principles of the Bill is that an employee is free to
withdraw his labour, subject only
to
the requirements of his
individual contract of employment.
It
is therefore vital
for
him to
know if and when strike action will be a breach of his contract.
This
was unclear before
the
Bill, and Parliament
has
attempted
to
clarify the issue by virtue of clause
188
of the Bill. In order to
understand the meaning and the significance of this clause, it is
necessary
to
discuss the previous law in some detail.
The major problem in assessing the legality of strike action is
whether
or
not the strike is in breach
of
contract.' Most
of
the
tortious liabilities which can be incurred at common law by strike
&ion require an initial unlawful act and
a
breach of the contract
of employment may be considered
''
unlawful
"
for such purposes.
The tort of inducing a breach of contract by definition requires
ah
initial breach of contract. In relation
to
the tort of intimidation,
a threat of a breach of contract has been held
to
be a threat
of
an
unlawful act, at least if the breach is of an absolute contractual
obligation not to strike at aka Conspiracy, in its narrow form,
consists of an agreement
to
commit an unlawful act;
it
is still
uncertain whether a breach of contract is an unlawful act for the
purpose
of
this tort.3 The tort of interference with business and
economic interest by unlawful means seems to include breaches
of
contract within the ambit
of
unlawful
mean^.^
1
For previous discussions of the topic see Professor Wedderburn's articles
in
(1962) 25
M.L.R.
513,
esp.
528-530;
(1964) 27
M.L.R.
257
esp.
268-270;
his
Cases and Materials
on
Labour Law,
p
525-526.
Lewis
[1968]
J.B.L.
24;
Cronin and Grime,
Labour
Law,
pp.
A445.
2
It
seems,
after the deoision in Morgan
v.
Fry
[l968]
2
Q.B.
710
that
only
where
there is such an obligation incorporated into each individual's contract
of
employment,
a8
in
Rookes
v.
Barnard
[1964]
A.C.
1129,
will
a
threat to
strike
in
breach
of the contrnct be sufficiently coercive to constitute intimida-
tion.
See
Rookes
v.
Barnurd
[1964]
A.C.
1129, 1180
per Lord Eversbed;
Stratford
Ltd.
v.
Lindley
[1!?65]
A.C.
269,
284,
306-307,
per Lord Denning
M.R.
and Salmon
L.J.
:
and
Morgan
v.
Pr
[lg68]
2
Q.B.
710,
730,
783,
'739,
per
Lord
Denning, Davies
and
Russell
LjJ.
respectively
8
The
point ww left
open
by
Lord Devlin
in
Rookes
v.
Birnard
[lW]
A.C.
1129,
1910.
See
Cfrunfeld,
Modern
Trade
Union Law,
p.
4-40:
Clerk
and
Lindsell,
Torts,
(13th
ed.)
pp.
416-417:
Street,
Torts
(4th
ed.)
p.
351.
4
Torquay
Hotel
Co.
v.
Cousins
[ISSO]
2
Ch.
106.
275

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