Will the legislation actually reduce the incidence of strikes?

There have been numerous strikes since the general election last year, affecting the NHS, schools and rail companies such as Southern. Virgin East Coast Trains is the latest employer to face industrial action from its employees.

The RMT union is in dispute with the train company over job cuts, working conditions and safety. The union is believed to have balloted about 1,800 of its members involved in this dispute and, of those who voted, 84 per cent of them voted in favour of strike action. What we do not know is how many of 1,800 voted and this will become important in the future as a result of new legislation.

The Conservative party made a manifesto commitment during the 2015 election to ensure that unions had a democratic mandate before they called their members out to take part in industrial action. The result was the Trade Union Act 2016, which became law in May this year but which is not yet in force.

The Act makes two significant changes to the law on when a union can call a strike lawfully. To make a strike legitimate, a union will still be required to obtain a majority in favour of strike action out of those who have voted and, in addition:

  • At least 50 per cent of those entitled to vote in a ballot must have voted in all cases
  • Where those involved in the dispute work in an ‘important public service’ there will be a requirement that 40 per cent of those entitled to vote in the ballot have voted ‘yes’ to strike action

The government has yet to publish regulations setting out precisely what ‘important public services’ means, but we know it will include activities within the health service sector, the education of under-17-year-olds, fire services, and transport services (this includes rail services; border security; and the decommissioning of nuclear installations, and the management of radioactive waste, spent nuclear fuel). Once the regulations are published – and no timeframe has been given for this yet – the legislation should come into force.

The changes will make it more difficult for a union to call its members out to take part in industrial action and easier for an employer to challenge proposed strikes in the courts. For example, in RMT’s dispute with Virgin, while 84 per cent of those who voted said ‘yes’, under the new rules the employer would be able to challenge the union in two circumstances:

  • If fewer than 900 members actually voted, so the union would not meet the 50 per cent threshold requirement
  • If fewer than 720 members voted in favour of strike action, so the ballot would not meet the 40 per cent threshold 

Understandably, unions have been highly critical of these and other changes made by the Act. There is a question mark over whether the government has breached the European Convention on Human Rights by imposing these additional hurdles, particularly in relation to those union members employed in the specified public services.

The unions could try to challenge these changes both in the UK courts and ultimately in the European Court of Human Rights. However, it is worth pointing out that there may not be much appetite among unions to make such a challenge, as the courts have shown an unwillingness to use Convention rights to place limits on UK law when it comes to strikes. And, secondly, the government has a manifesto commitment to repeal the Human Rights Act 1998. So, if a union does want to challenge this legislation using that Act, it may have a limited window of time in which to do so.

The signs are that we are entering a period of increased industrial unrest. While the Trade Union Act will make it more difficult for unions to call strikes, it may also result in them seeking to cultivate more active support, so that they can gain the necessary numbers for industrial action. The new law may also result in more industrial disputes ending up in the courts.

One way or another, the industrial climate is likely to be eventful over the next few years.

Paul McFarlane is a partner at Weightmans LLP and chair of the Employment Lawyers Association’s committee that commented on the Trade Union Bill as it progressed through Parliament

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