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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 07 AUG 2017

Can the Withdrawal of Voluntary Tasks Amount to Industrial Action?

Can the Withdrawal of Voluntary Tasks Amount to Industrial Action?
Joanne Oliver
Senior Associate,
Veale Wasbrough Vizards


In the case of Ministry of Justice v The Prison Officers' Association, the High Court considered whether to issue injunctive relief against a trade union following its instruction to members to withdraw from certain voluntary tasks and roles.

This case focuses on the dispute around the treatment of voluntary work by prison officers and highlights that within many sectors employers can be heavily reliant on volunteering and goodwill to meet operational demands.


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Facts

In February 2017, the Prison Officers' Association (POA) issued a circular to members which instructed them, amongst other things, to only attend their workplaces at the official start time, to withdraw from a range of duties described as 'voluntary tasks' until further notice and embark on a course of withdrawal from an overtime scheme.

The Ministry of Justice (MoJ) sought a declaration that the circular amounted to industrial action (prohibited for Prison Officers) and an injunction requiring the POA to withdraw the circular.

High Court Decision

The High Court granted final declaratory and injunctive relief. It held that, although the circular was not an instruction to work to rule (ie working strictly to the exact terms of their contract to frustrate the employer's business), it did amount to an inducement by the POA for prison officers to breach their employment contracts, because:

  • prison officers are contractually obliged to undertake 'instructed services'
  • prison governors are empowered to issue instructions under the Prison Rules requiring prison officers to undertake some or all of the tasks that would otherwise be considered voluntary should the need arise and also have power to instruct officers to undertake additional hours in order to ensure that minimum staffing levels are fulfilled

The tasks were therefore only voluntary until the point that the prison governor issued a lawful instruction for their completion - prior to this, there was no contractual duty to perform them (distinguishing the case from 'work to rule' cases). The fact that prison officers had to comply with the reasonable lawful instructions of governors meant that a contractual obligation to perform the tasks crystallised at the stage at which the instruction was issued, changing their status from voluntary to contractual. The POA's instruction to the officers to withdraw from voluntary tasks without any express carve-out for those tasks required as a result of the governors' reasonable instructions led the High Court to conclude that a reasonable prison officer would believe they were being told to withdraw from all voluntary tasks, even if their governor instructed them to perform them.

What Could this Mean for Employers?

It may be appropriate to undertake an audit of these arrangements and to ensure suitable contingency measures are in place should goodwill suddenly be withdrawn. In some cases it might be prudent to consider re-profiling certain tasks as contractual rather than voluntary or recruiting additional staff, where under-resourcing is an issue.
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