The number of annual working hours lost to strikes has declined dramatically since the 1970s and 80s but recent spikes in activity, especially in the public sector, seem to have persuaded the government to legislate for further restraint. Carolyn Harris and Guy Bredenkamp from DAC Beachcroft explain.
Urging workers to break their contracts of employment by striking is generally unlawful. However, unions organising strikes are immune from legal action if they follow a detailed statutory balloting and notification procedure. If they get it wrong, employers can obtain an injunction from the High Court, effectively preventing the strike from taking place.
The required process is intricate: carefully-timed notices must be sent to the employer, including detailed information about the intended action and the constituency for the ballot. The ballot must be conducted in secret and by post. However a simple majority of votes cast will give the union a mandate to call a strike, even if the turnout of eligible members is very low.
Although in recent years Courts have allowed unions a wider margin of error in complying with these requirements, unions still argue that the statutory mechanism is an unfair hindrance on their members' right to strike.
The government's new Trade Union Bill, if passed, will 'raise the bar' for unions organising industrial action. The Bill proposes:
· A minimum 50% turnout for strike ballots (currently no minimum)
· A minimum 40% backing from eligible members for strikes in 'important public services' (currently no minimum)
· That the mandate for strike action will expire 4 months after the ballot (currently 'discontinuous' strike action ballots can provide an indefinite mandate)
· 14 days' notice for strike action (currently 7 days)
· More requirements on unions to provide information about the process
· That employment agencies can provide workers to cover for strikers (currently a criminal offence)
· To ban direct deduction of union subscriptions by 'check-off'
· New rules about supervision of picketing (currently covered by a Code of Practice which has limited legal effect).
The unions and human rights organisations strenuously oppose the bill, arguing that it is unfair, unnecessary and undemocratic. Interestingly however, Unite offered to drop its resistance to turnout thresholds if the government would allow online balloting. The government refused, citing evidence that online balloting was vulnerable to fraud. Perhaps both sides' positions were influenced by a perception that online balloting would make voting easier and therefore increase turnout. More than 1,000 workers turned out to rally before Parliament on 2 November claiming that the proposed bill threatens the basic right to strike and is akin to Victorian oppression of workers.
Most of the Bill looks likely to become law, which will be welcomed by health sector employers, given that it provides a greater chance to prepare for industrial action and put in place contingency plans – including hiring agency staff to cover for strikers. What remains to be seen, however, is whether the legislation will have the unintended consequence of an increase in unofficial, un-balloted 'wildcat' strikes, in which unions can be powerless to intervene. Unofficial action is risky for those who take part because they can lose legal protection – including the right to claim unfair dismissal if they are dismissed whilst taking part in unofficial industrial action. Such disputes can escalate rapidly if not handled carefully.
Consultations closed on 9 September and the Bill had its third reading on 10 November at report stage and is now progressing to the House of Lords for further scrutiny. The government has already backed down on social media measures which would have required all those taking part in industrial action to tell the police how they planned to use social media sites. Watch this space!
Guy Bredenkamp, Partner, Employment & Pensions Newcastle Carolyn Harris, Solicitor, Employment & Pensions, Newcastle