The future of industrial action

by DLA Piper

Nicholas Jew, a Partner in our Birmingham office comments: 10 July 2014 may well be remembered as marking a potentially seismic shift in the UK Government’s approach to industrial action. On this day, an estimated one million public sector workers went on strike, bringing significant disruption to public services. Around one fifth of the UK’s schools were forced to close and council services, courts, job centres and airports were amongst the services affected.   This widespread interruption to the smooth running of public services has, once again, brought the issue of the UK’s strike laws into sharp focus. Hot on the heels of the disruption, the Conservative party announced that reforms to strike laws will form part of its election manifesto.

The law as it stands

The UK’s laws on industrial action are complex.  There is no right to strike as such.  Most types of industrial action are a breach of an employee’s contract of employment and a trade union commits the tort of inducing a breach of contract if it organises a strike.  However, the law does provide a union with a defence, provided that the industrial action is “official” and is taken “in contemplation or furtherance of a trade dispute” (the so-called “golden formula”). Strict rules on ballots and notification must also be complied with.  Employees may also be protected from dismissal provided certain conditions are fulfilled.

Industrial action will be “official” if the union whose members are taking part in it has authorised or endorsed it – and the action will meet the golden formula if the dispute relates wholly or mainly to terms and conditions of employment, engagement of workers, suspension/termination of workers, allocation of duties, disciplinary matters or membership of a trade union, including any procedures for negotiation or consultation on any of these matters.

A union must give the employer of any employees who are entitled to vote at least seven days’ notice before the ballot of the fact that the union intends to hold the ballot, the date on which the ballot will start and such information as helps the employer to work out the total number, categories and workplaces of workers affected.  At least three days before the ballot, the union must also send the employer a sample voting paper which complies with a number of specific requirements, including the name of the scrutineer and questions which require the respondent employee to answer ‘Yes’ or ‘No’ as to whether s/he is prepared to take part in a strike, and to answer ‘Yes’ or ‘No’ as to whether s/he is prepared to take part in action short of a strike.

As soon as reasonably possible after the date of the ballot, the union must notify the employer and the voters of the outcome of the ballot, including the number of votes cast.  The union must then give no less than seven days’ notice to the employer of the commencement of industrial action.  The action must begin within four weeks of the last voting day of the ballot unless the union and the employer agree an extension (of up to four weeks).

The controversy

The procedures which must be fulfilled prior to industrial action are technical and there is clearly scope for error, which could lead to a union inadvertently falling foul of the rules.  However, the real controversy in the process is that only a simple majority of those voting in the ballot have to agree to industrial action.  In recent years, where voter turn-out has often been relatively low, strikes have been called in circumstances where considerably less than 50% of the workforce has voted in favour of it. It is, therefore, perhaps understandable why many employers find it hard to swallow the impact that industrial action has on their businesses.

Calls for reform

Over recent years, both the CBI and the Mayor of London, Boris Johnson, have called on the Government to tighten up strike laws. The CBI have suggested that 40% of the balloted workforce should support the action plus a simple majority of those voting.  Boris Johnson has gone further and called for there to be a threshold of at least 50%. However, a 2011 private members’ bill, which would have made strikes unlawful if they were not supported by a majority of union members, was defeated – and until now none of the political parties have come out firmly in support of any major reform to the strike laws.

Conservative manifesto

However, in a follow-up to their promise in early July 2014 to reform strike laws if they are elected at the next general election, the Conservative party has now announced clearer details of its proposals. They include:

  • Introducing a 50% turnout threshold for strikes. This will effectively mean any strike will need a double majority to be lawful: an absolute majority of those eligible to vote participating in the ballot and a simple majority in favour of industrial action.
  • Forcing unions to provide specific details about the nature of the dispute and a requirement to vote on each aspect of the dispute. It would also require unions to set out clearly the form of the proposed action on the ballot paper (eg time of year, length).
  • Extending the notice period unions are required to give employers from seven days to 14 days before industrial action.
  • Removing  the requirement to trigger action within four weeks of a ballot and set a firm time limit of three months on the duration of the mandate. Currently, the mandate lasts indefinitely provided the original dispute is continuing.

These proposals are perhaps more wide-reaching than was expected. However, they set out a clear intention to overhaul the UK’s strike laws and potentially minimise the possibility of widespread disruption in the future.  There is a balance to be reached, however.  Reforms which potentially breach the right to freedom of association may be open to challenge.

Calls for electronic voting

In turn, the TUC has called for reforms of its own. The  TUC argues that the rules which govern strike ballots and voting need to be brought into the 21st century.  The TUC claims that there is no case for imposing a tougher turnout threshold; instead it should be made easier for members to vote. At present, voting must be done by post. The TUC claims that introducing an electronic means of vote casting will secure much higher turnouts.

Leverage tactics

In the meantime, the Government has already launched an independent review into the effectiveness of the existing legal framework in preventing inappropriate or intimidatory actions in trade disputes.  The review was launched in April 2014 and is expected to take six months to provide proposals and recommendations for change.

It is interesting times for this area of law; much is likely to hang on the outcome of next year’s general election; and until then employers do remain somewhat a hostage to fortune in dealing with trade disputes. Time will tell, however, whether any meaningful reforms are made or whether strike action will continue to feature regularly across the UK’s workplaces, and particularly in the public sector arena.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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