Industrial action

Overview

Tamsin Wallace, Eversheds Last Modified  08 September 2016

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).