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Under section 20 of the Trade Union and Labour Relations (Consolidation) Act 1992, a union is liable for the unlawful acts of its members if it can be said to have authorised or endorsed them.
In Gate Gourmet London Ltd v Transport and General Workers Union and ors (IRLR 2005, 881), the High Court decided that the union had authorised unlawful picketing.
However, the judge also said that picketing law had to take account of the rights to peaceful assembly and of freedom of expression under the Human Rights Act.
The T&G instructed Thompsons to act on behalf of their members.
Gate Gourmet, which supplies in-flight meals for airlines, had been in consultation with the T&G for some time about changes that it wanted to make in the hope of resolving its financial problems.
Although the union reached agreement with the company, 98 per cent of the membership rejected the proposals in a ballot held in July 2005.
The two sides were due to start mediation talks on 12 August, but on 10 August the employees on the early shift held an unofficial sit in, as a result of which the company ended up sacking 622 of them.
The dismissed employees set up pickets on a number of sites, only one of which was designated. The company complained that some of their employees were being intimidated by the pickets to the point where they were going off sick or even resigning, and applied to the High Court for an emergency injunction.
It asked the court to limit the number of pickets to ten and to order them to engage in peaceful protests only. It also asked for the union to be included in the injunction, along with 37 named defendants and an unknown number of unnamed defendants.
The union argued that it should not be included in the proceedings. It said that there was not enough evidence to establish a case against it, the 37 named employees, or the "persons unknown" in the injunction. It pointed out that any order against unnamed defendants would be hard to enforce and that the Human Rights Act 1998 created a right to picket (Article 11 guarantees the right to peaceful assembly).
The Judge said there was evidence that, because union officials had frequently been present at the pickets, they knew and "understood the types of unlawful activity which were being routinely perpetrated".
That being so, officials could be said to have authorised those unlawful acts and as the union had not "repudiated" them, the injunction should include the T&G.
The Judge ordered that the number of pickets should be limited to six at one site because of the alleged level of intimidation there. And he ordered the strikers at another site to restrict their picketing to that area and not to make contact with employees going to and from work.
He also granted an injunction against some of the named defendants who had allegedly made threats or stopped employees from moving on. Although this would curtail the right of the strikers to "reason with others and to attempt to dissuade them from working" (a perfectly lawful activity), the Judge said it was necessary to curtail the unlawful activities that had been going on.
However he refused to include in the injunction employees who were not making any threats against the workers, saying he had to take account of the Human Rights Act and the right of peaceful assembly.
This case is important for a number of reasons. Firstly, the T&G successfully relied on the Human Rights Act to protect peaceful assembly in relation to a trade dispute.
Secondly, the public support for the dismissed workers has highlighted the artificial nature of the law of secondary action.
Lastly, by winning support at both the TUC and Labour Party conferences, the T&G has restored the issue of industrial law to the political agenda.