Tag Archive: industrial action

Trade Union Act 2016


Yesterday the most significant piece of trade union legislation in decades, the Trade Union Act 2016, gained Royal Assent. The Government has had to make a number of concessions in order to get the controversial legislation passed before the end of the parliamentary session. The main changes which will come into effect when the Act is brought into force are:

  • Lawful industrial action will require a minimum turnout of 50% of those entitled to vote, in addition to a majority voting in favour;
  • In essential public services (including health, education, fire and transport), at least 40% of those who were entitled to vote in the ballot will be required to vote in favour of action;
  • The voting paper must include a summary of the matter or matters in issue in the trade dispute to which the proposed industrial action relates;
  • Unions will be required to give employers 14 rather than the current 7 days’ notice of industrial action, unless the union and employer agree otherwise;
  • A ballot for strike action will cease to give the union a mandate to take action 6 months after the ballot, extendable to 9 months if the employer agrees;
  • Unions will be required to appoint an identifiable supervisor when engaged in picketing;
  • After a transitional period of at least 12 months, all new trade union members will be required to pay into union political funds only if they have actively opted in; and
  • The Government will commission an independent review on electronic balloting for industrial action.

More significant restrictions on picketing were abandoned at an earlier stage. Provisions to repeal the ban on the use of agency workers to cover for striking workers are not contained in the Act but may be introduced by secondary legislation

Permanent link to this article: https://www.dlapiperbeaware.co.uk/trade-union-act-2016/

Government releases details of Trade Union Bill

With the disruption caused by last week’s tube strikes still fresh in people’s minds, the Government has today published a press release providing further details on its proposals for strike reform.

The proposals are in response to a number of strikes in recent years which have arguably caused significant disruption to business and consumers, despite, on the figures, not being supported by a majority of the particular workforce.  This situation has arisen because a lawful strike needs only the support of a majority of the workers voting, meaning that very low turnouts of voting workers can still result in legitimate industrial action.

The Government has now confirmed that it will introduce a Trade Union Bill which will implement:

  • A 50% threshold for ballot turn-outs;
  • An additional threshold of 40% of support to take industrial action in key public services such as education and transport;
  • A 4 month time limit for industrial action from the date of the ballot;
  • Changes to the ballot paper to give a clear description of the trade dispute and the planned industrial action;
  • A requirement for members to make an active choice of opting-in to contributions to political funds; and
  • Safeguards to ensure non-striking members of a workforce are able to continue work without intimidation.
  • The Government will consult on a number of its proposed measures including:
  • The proposed introduction of the 40% threshold for strikes in essential public services;
  • Reforming and modernising the rules and codes of practice on picketing and protests linked to industrial disputes; and
  • The repeal of a ban on the use of agency workers.

The consultation will open today and run until September 2015.

Trade unions are, unsurprisingly, highly opposed to the proposed reforms, stating that the proposals will make legal strikes “close to impossible”. UNITE has gone further and indicated this week that it has passed a motion to remove from its rule book the words caveating strike action, “so far as may be lawful”.

The real impact remains to be seen, however.  There is no doubt that the reforms will have a significant impact on sectors which have traditionally seen low levels of turnout, for example in essential public and civil services – where not only a 50% turnout but also a 40% threshold of support will apply.  However, whether this will lead to a reduction in strikes remains to be seen; given the potential sanctions for trade unions in relation to illegal strike activity, unlawful action seems unlikely, despite UNITE’s  amendment to its rules. Employers should, however, remain vigilant to potentially unlawful activity.  Where legal picketing is curbed, employers may see more ancillary protests where employers need to look more broadly at the laws of nuisance and other non-industrial torts, and become more creative about how they deal with concerted action by trade unions. Unions may also adopt a more militant approach in an attempt to galvanise the workforce into turning out and voting.  However, a number of sectors, such as transport, have historically had high levels of turnout in support of industrial action and would already meet the new thresholds. In the rail industry, RMT recently obtained a 60% turnout with an 80% vote in favour of strike action.  In practice, therefore, the impact of the new reforms may be limited in some sectors.

Where lawful strike action does take place, being able to use agency workers to cover striking workers may also not be the ideal solution it seems; this is potentially a piecemeal approach which does not adequately meet the needs of employers or their customers.  The outcome of the consultation on this will therefore be awaited with interest.

We will report on the progress of the Bill in future alerts.


Permanent link to this article: https://www.dlapiperbeaware.co.uk/government-releases-details-of-trade-union-bill/

New employment legislation on the horizon

Clare Gregory, a Partner in our Sheffield office, comments: On 27 May 2015 the Queen unveiled the Government’s legislative programme for the new Parliament, the first exclusively Conservative programme for nearly 20 years. This included a number of employment-law reforms, particularly in the fields of industrial action and immigration, none of which come as a surprise having been heavily trailed before and since the election.

The Trade Unions Bill will create more barriers for trade unions wishing to call a strike. First, more than 50% of a union’s eligible members must vote in order for the ballot to be valid. Second, if the strike affects “essential public services” at least 40% of those entitled to vote must be in favour of the strike. The Bill will also lift the ban on the use of agency staff to provide cover when strike action takes place. There is to be a new time limit on the ballot for industrial action and a promise to tackle intimidation of non-striking workers, although it is unclear how this would be done. The Government said the point of the bill was to “ensure that disruption to essential public services has a democratic mandate”. The Bill would also force trade union members to opt in if they want to pay a political levy.

An attempt to fulfil a Conservative manifesto promise to reduce regulation on small businesses, the Enterprise Bill would cap redundancy pay to public sector workers. The new Business Secretary Sajid Javid has said that the Bill also intends to “cut red tape for business by at least £10 billion over the next five years.” It is not clear precisely what red tape will be targeted, but the CBI is calling for further deregulation in the field of employment. Savid Javid has said, however, that he will not be going back to the controversial Beecroft proposals for no fault dismissals.

The Immigration Bill will create a new enforcement agency to tackle the worst cases of exploitation as well as creating an offence of illegal working and enabling wages to be seized as the proceeds of crime. Ministers promise to consult on the introduction of a new visa levy on businesses that recruit overseas labour to fund extra apprenticeships for British and EU workers.

More profound changes may ultimately result from the EU Referendum Bill which will set in law an in-out vote as to whether the UK should remain in the EU before the end of 2017. David Cameron has indicated that he is not necessarily looking for a EU exit, but continued EU membership is dependent on the UK negotiating more acceptable terms including reforms to support business growth and job creation and restrict EU migrants claiming benefits in the UK. An EU exit would provide the Government with more flexibility to make changes to employment laws such as TUPE and the Agency Worker Regulations.

Notably, the Queen’s Speech stopped short of a legislative plan to scrap the Human Rights Act, but it did confirm government plans to present proposals for reform. Human rights as set out in the European Convention have impacted the employment relationship; particularly the right to a private and family life; to freedom of thought, conscience and religion; to freedom of expression; to freedom of assembly and association; and the right not to be discriminated against. At this stage it is unclear how repeal of the Human Rights Act might impact on employment rights.

The day before the Queen’s speech, other employment law changes came into effect with little fanfare: Exclusivity clauses in zero hours contracts became unlawful as from 26 May.  This change, which was a key feature of the employment law reforms contained in the Small Business, Enterprise and Employment Act 2015, came into force 2 months after the Act was passed.

Under the new law, any clause in a zero hours contract which prohibits a worker from “doing work or performing services” under another contract, or prohibits him or her from doing so “without the employer’s consent”, will now be unenforceable by the employer. The new law has, however, been described as toothless by some commentators as a worker cannot currently claim detriment as a result of an employer trying to enforce such a clause. However, there is further scope under the Act for the Government to add this protection for zero hours workers.  Draft rules, which were attached to the coalition government’s response to its public consultation on the exclusivity ban earlier this year, have not yet been brought into force. These included a new right not to suffer any detriment should the workers take a job under other contracts and an extension of the scope of the exclusivity ban to workers on very low weekly pay/working hours. Until these anti-avoidance measures are in place, the ban will not create any meaningful protection for zero hours workers. However, it is likely to be only be a matter of time before this protection is introduced. Employers who operate zero hours contracts may wish to remove any offending clauses from their contracts in anticipation of this.

The government, in its response to the consultation on the new law, pledged to review and improve existing guidance available to employers and workers regarding zero hours contracts. Such guidance would help to correct the confusion which often surrounds the rights of zero hours workers, particularly in relation to working time and holiday pay.

The following employment-related provisions also came into force on 26 May:

  • Increase in the penalty which can be imposed on an employer who pays less than the National Minimum Wage; the maximum penalty is now £20,000 per worker, rather per employer; and
  • Provision giving power for the Secretary of State to make regulations to prevent discrimination by NHS employers against job applicants on the grounds that they appear to be NHS whistleblowers.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/new-employment-legislation-on-the-horizon/

The future of industrial action

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.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/the-future-of-industrial-action/