What is secondary (or sympathy) industrial action and is it unlawful?

Secondary action (or sympathy strikes as they are sometimes known) would occur if a trade union induces its members to take industrial action against their employer in support of fellow union members employed by a different employer where a trade dispute exists. For example, union members are in a dispute with their employer ("A") and in order to exert industrial pressure to settle the dispute the union calls upon its members employed by a different employer ("B") who is a supplier of services to A to refuse to handle supplies of those services to A.

Secondary action is rendered unalwful in the UK by section 224 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Recently, the RMT union asked the European Court of Human Rights to determine whether the UK's ban on trade unions to call for secondary action was consistent with Article 11 of the Convention (the freedom of assembly and association).

In a judgment handed down in April 2014 the Court decided that although industrial action was protected by Article 11, including secondary action, it would be permissible for a government to ban secondary action if it could show that by doing so it was pursuing a legitimate aim and to be necessary in a democratic society to achieve those aims.

The Court concluded that the UK did have a legitimate aim in protecting the rights and freedoms of parties who were not a party to the industrial dispute ("B" in the example above). As regards whether the ban on secondary action can be regarded as neccesary in a democratic society, the Court considered that in the UK had been able to show that in insituting the ban it was operating with the "wide margin of appreciation" afforded to governments, and that the ban was a proportionate means of protecting the rights and freedoms of those not directly involved in the trade dispute.

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