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Industrial action

The law relating to industrial action is complicated and many aspects of the law are unclear, either because of conflicting court decisions or because of the absence of judicial interpretation of the key legislation.
Although few employers, particularly in the private sector, are directly affected by industrial action, those that are can suffer substantial detriment including adverse impact to reputation, productivity, sales and morale.
Speed is of the essence in dealing with industrial disputes. First, because they have an immediate impact on the employer's undertaking. Second, because any legal action is likely to take the form of seeking injunctions and the courts will not grant injunctions unless they are sought speedily. Before pursuing a legal response to industrial action, employers should seek specific advice from a suitably specialised lawyer reflecting the complexities involved.

Key points

  • industrial action is generally unlawful and exposes the organising trade union to claims for compensation and injunctions, unless it has a defence
  • this defence is available if the action is taken in 'contemplation or furtherance of a trade dispute' and a number of specific statutory requirements are complied with, including conducting a ballot before any industrial action, serving notice on the employer and a prohibition on secondary action and unlawful picketing
  • if the industrial action is lawful, and is endorsed or organised by the trade union, any dismissal for taking part is automatically unfair for at least 12 weeks from its commencement
  • employees dismissed during, and because of taking part in, unofficial industrial action (not authorised by the union) cannot pursue an unfair dismissal claim
  • it is lawful for employers to dock pay from employees participating in industrial action in certain circumstances, but not all, and caution should be exercised over the hiring of agency workers to backfill striking employees as it is prohibited by statute (although the government has promised to repeal this ban).

Recent developments

Trade Union Act 2016
This Act became law earlier this year and will be implemented in stages beginning in 2016. Its main provisions include that, for a strike to be lawful, there must be:
  • a minimum 50 per cent turnout in a strike ballot of those eligible to vote (there is an existing requirement for a majority of those voting to be in favour of taking action)
  • a minimum of 40 per cent of those eligible to vote supporting the strike if they work in the health, education, fire, transport, border security and nuclear decommissioning sectors (‘essential public services’)
  • a ballot paper detailing what the dispute is about, the type of action planned, and an indication of how long the action will last
  • 14 days’ notice of planned industrial action (previously employers had to be given seven days’ notice).
  • A mandate to strike will last six months, or up to nine months with employer agreement. Pickets must have picketing supervisors (giving legal force to a provision in the Code of Practice on picketing). The government intended that the legislation would lift the ban on hiring agency staff during strike action, but this measure does not appear in the final version of the Act. There was also an intention to end 'check-off' arrangements (which allow for union subs to be made as deductions from wages) but rule changes on this will now be restricted to the public sector and will not come in until 2017 or 2018 (see ‘Industrial action’ – in-depth).

Regulations were published on 6 December 2016, specifying which categories of public services workers were covered by the 40 per cent threshold requirement (see above). The services include:

  • Hospital services, such as A&E, intensive care, psychiatric and emergency midwifery services

  • Teachers of compulsory school-age children, and those working in further education

  • Fire-fighters, and fire and rescue service personnel organising a response to emergencies

  • London bus, national rail, and tramway personnel, including maintenance workers, and air traffic control, airport and port security services

  • Border control personnel, sea patrol and border intelligence officers.

The Trade Union (Wales) Act 2017 came into force on 13th September 2017. It reverses certain provisions contained in the Trade Union Act 2016 to apply in Wales only. The following parts of the Trade Union Act will now not apply in Wales:

  • the 40% ballot threshold
  • reporting of facility time
  • provisions relating to deduction of trade union subscriptions from wages.

The Act also ensures the continued prohibition on using agency workers to replace workers who are on strike. Although this practice is still currently prohibited in England and Scotland, the Government may remove the restriction in the future.