Sir Patrick Elias and the Right to Strike

Abstract This paper addresses Sir Patrick Elias's contribution to the right to strike, looking particularly at RMT v Serco Ltd; ASLEF v London & Birmingham RailwayLtd (2011). The decision brought to an end an intense period in which employers were able to obtain injunctions to prevent or discontinue industrial action, sometimes on what appeared to be insubstantial grounds. In doing so, the Court of Appeal reset the judicial approach to industrial action, acknowledging the ‘right to strike’ with implications for the substance of the law as well as the law relating to remedies. The paper explores the background to the decision and explains the significance of its content, while also assessing its impact and implications. In doing so, attention is devoted to the recent decision of the Irish Supreme Court in H A O’Neil Ltd v Unite the Union (2024) which expressly adopted an important passage from Serco, but in doing so raised important questions about the future development of the economic torts which continue to form the foundation of legal liability during industrial action