New laws regarding industrial action now in effect

Following their victory in the 2015 general election, one of the Conservatives’ key manifesto issues was to rein in a Trade Union Act which they believed was overly punitive for UK employers.

With 704,000 days lost to strikes in the year to April 2015, the Government felt that something had to be done to curtail the perceived increased power of trade unions. In what was described as “the biggest clampdown on strikes since the Thatcher era”, the Government produced the Trade Union Act 2016 (“the Act”), the contents of which would significantly curtail the power of unions up and down the country. Whilst the Act became law in May 2016, the key provisions did not come in to force until 1 March 2017. In this article, we review some of the key changes brought in by the Act and how it may affect your business.

The key changes which came into effect on 1 March 2017 include:

New ballot thresholds

The Act introduces a new ballot threshold, requiring a minimum turnout of 50% of those eligible to vote before a vote for industrial action can be legally binding. 

In addition to the above requirement, where the vote is in relation to “important public services”, at least 40% of those entitled to vote must vote in favour of industrial action. The term “important public services” includes services such as transport, education and health.

New expiry period for action following a ballot

Previous legislation did not place a limit on how long after a positive ballot a strike could take place, which created uncertainty for employers.

The Act has now removed this uncertainty, and any industrial action must now take place within 6 months of the ballot. This can be extended to 9 months if the union and employer agree.

New notice requirements

To the relief of employers, the notice period for industrial action has been extended from 7 to 14 days, although a 7 day notice period is still permitted if the employer agrees.

New information requirements

In an attempt to make things more transparent, the Act has introduced a number of new requirements relating to the provision of information, including a requirement that the ballot paper must now include a “summary” of the matters in dispute, the type of action proposed and when this is expected to happen. This particular requirement was introduced to address complaints that voting members were unsure of what they were voting for, and, in some instances, the repercussions of the same.

New requirement to supervise picketing

Every picket must now have a recognised supervisor whose details are given to the police. The supervisor must have a letter of authorisation identifying themselves as the picket supervisor and be easily identifiable as the same.

The above changes will clearly be welcomed by employers throughout the UK. The new thresholds make it harder for unions to produce a positive result in ballots, any industrial action must then take place within a specified period and employers will also have longer notice of any such action. This will give employers extra time to prepare for strike action and to make any contingency plans necessary for the running of their business.

It is not all good news for employers, however, as the guidance provided by the Government on the “important public services” provision hints that the unions will be given broad discretion as to whether the 40% threshold applies. This will no doubt lead to further litigation in the future.

At the time of writing this article, the Welsh Government has sought to overturn the Act in Wales, with murmurings that the Scottish Government is looking to do the same. We will keep you updated should either of these actions come to fruition.

What should you be doing now?

All management and HR departments should familiarise themselves with the new legislation regarding industrial action.

Whilst these changes have arguably made industrial action more difficult in some respects, employers must still tread carefully in this area, as workers still have strong protection against being subjected to any detriment and/or being dismissed because of trade union related matters, including the fact that they are members of an independent trade union or are taking part, or have taken part, in trade union activities.

What does this mean for you or your business?

We would encourage all employers to continue to maintain good relations with the unions. However, employers should take a stand where actions outside the remit of the new legislation are attempted.

Recommended Reading

The Department for Business, Energy and Industrial Strategy has updated its code of practice relating to industrial action, which you might find useful. A copy of this can be found here.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.