News

ALL OUT! The Right to Strike in Modern Britain

Fri 11th Aug 2017

As the Trade Union Act 2016 comes into force practitioners are wrestling with all new problems of procedure, practice and legal duty. With non-compliance carrying the risk of indemnity costs and potential criminal conviction- there has never been a more important time for clear industrial relations advice.

BALLOTING AND NOTICE

Trade Union balloting has been strictly regulated ever since the passage of the Trade Unions and Labour Relations Act 1992. In the case of British Airways and Unite [2010] EWCA Civ 669 the Master of the Rolls went as far as to comment that the rules could appear ‘strict’ and ‘unnecessarily prescriptive.’

The traditional duty to ballot on action short of strike (s229(2) TULRCA 92) and to warn members they risk breaching their personal employment contracts (s229(4) TULRCA 92) remain in place. Added to this is a new duty to summarise the issues on the ballot and to set out concrete ‘short of strike’ plans (s5 TUA 2016.) An indication of timescales and likely affected periods must also be given on any valid ballot.

Under the old Act employers were entitled to seven clear days notice. Unions are now to give fourteen days notice- leaving additional time for negotiations and pre-emptive legal action (s28 TUA.) For a notice to be valid it must detail likely numbers and outline affected classes of employee (s234 TULRCA 92.) There remains no obligation to disclose participants’ names or other identifying information.

THE THRESHOLD FOR ACTION

The most controversial provisions of the new Act relate to balloting thresholds.

Trade Union ballots will now only be capable of indemnifying action if 50% of relevant members engage (s2 TUA 2016.) With turnout in local, regional and European elections often falling below this level, one can understand union alarm regarding the viability of future action. A review has been ordered regarding electronic voting and other means of boosting turnout- however no action is promised at this time.

Strikes affecting ‘important public services’ (namely health, education, transport and border control) are to be subject to an enhanced balloting check (s3 TUA 2016.) Union leaders will be required to demonstrate both 50% turnout and that 40% of their total membership support action. In the event of a simple majority turnout the new rules require an effective 4 to 1 split before any strike action can take place.

Studies of ballots carried out between 1997 and 2015 indicate that the changes are likely to have a significant dampening effect on industrial action (Darlington and Dobson (2015).) 46% of ballots reviewed fell foul of new turnout requirements; 39% of public sector ballots fail the enhanced thresholding test. Unions wishing to remain relevant will have to find ways of bolstering turnout or (alternatively) develop new non-tortious ways of exercising influence.

PROTEST AT WORK

Industrial protest has been subject to strict regulation for some time- with prohibitions on sympathy action (s219 TULRCA) and so-called ‘flying pickets’ (s220 TULRCA 92.)

The new legislation requires trade unions to actively supervise and monitor pickets (s10 TUA.) The Act requires the appointment of supervisors, the wearing of identifiable clothing, pre-disclosure of details to the police, the preparation of letters sanctioning action and the ready disclosure of such letters. Breach of any one of these technical requirements can render a picket unlawful and subject to legal action.

THE CONSEQUENCES OF NON-COMPLIANCE

As balloting, notice and supervisory requirements continue to tighten the risk of breach and litigation increases. At first blush the statutes appear to offer little legal flexibility to unions. Full compliance must be shown and proven to ensure immunity from suit (s219 TULRCA)

The tough statutory wording has however been tempered by the Court of Appeal adopting a purposive and to some extent pragmatic view of industrial litigation. In the Unite case [2010] Lady Justice Smith specifically commented that ‘the policy… of the Act is not create a series of traps or hurdles for the union to negotiate. It is to ensure fair dealing between employer and union.’ In the context of notice requirements the Lord Chief Justice stated that Unite’s process ‘was far from perfect…it could have been improved, but in my judgment it was enough.

As the new Act comes into force judges will have to carefully balance Parliament’s demand for compliance with broader principles of purpose and industrial democracy. The balance struck will determine what the right to strike means in 21st Century Britain.

CHRISTOPHER STYLES

 

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