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Taking action over Industrial Action

20th April, 2017

For many, there is an underlying feeling that trade unions and their members in the UK are increasingly likely to resort to industrial action, particularly since the economic recession in 2009. On 14 April 2015, in the run up to the General Election that May, the Conservative party published its manifesto which expressly committed to the protection of the British public from what it described as “disruptive and undemocratic strike action”. Despite there being a number of high profile strikes over recent months, it is clear that steps are being taken in an attempt to reform current practices surrounding industrial action and meet this promise. This article will consider the current regulations around industrial activity before going on to look specifically at recent strikes within the airline industry, rail industry and medical sector. It will also outline the changes imposed by the Trade Union Act 2016 (“TU Act 2016”) and speculate as to the potential effects of this new legislation on the resolution of conflict in the workplace.

The role of trade unions in industrial relations in the UK has become increasingly restricted, largely as a result of Conservative Government policies between 1979 and 2017. Currently, issues arising between trade unions and employers are governed by the provisions contained within the Trade Union and Labour Relations (Consolidation) Act 1992 which sets the basic requirements in respect of balloting, notice of industrial action, peaceful picketing and time off for union representatives and union members. Where a union induces employees to strike without complying with these requirements it will be liable in tort for inducing a breach of its members’ employment contracts. It is therefore critical, to establish that it is not liable in tort, a trade union can show that; the industrial action is in contemplation or furtherance of a trade dispute, they have gained the support of simple majority following a valid ballot, the action does not amount to unlawful picketing and it is not for a prohibited purpose.

Probably the most widely publicised industrial dispute in recent years took place between junior doctors and the Department of Health. This dispute originally arose in 2012 when proposals were made by the Government to change the contracts under which junior doctors were employed. In the summer of 2015, following a series of unsuccessful talks and the general breakdown of communications, the Health Secretary Jeremy Hunt announced that the Government intended to unilaterally impose the contractual changes in the absence of an agreement. In response the British Medical Association (“BMA”), which is the registered trade union for doctors in the UK, balloted its approximately 40,000 members with 98% voting in favour of strike action. Three strikes planned for December 2015 were eventually called off and talks resumed in early 2016 through Acas. Unfortunately, no significant progress was made and on 12 January 2016 thousands of doctors participated in a 24 hour strike which was the first of its kind in 40 years and lead to the cancellation of around 4,000 operations and procedures. Further strikes followed which propagated a media frenzy around the dispute and ultimately led to a deal being reached in May 2016 which saw significant compromise from both sides. The publicity surrounding this strike as well as the potential impact on the public serves as a clear demonstration of the power of industrial action, particularly where it takes place within the public sector.

Recently, another significant industrial dispute, between Southern Rail (“Southern”) and a large number of its train drivers, has resulted in strike action. The strikes were initially called by the RMT (Rail, Maritime and Transport) union as a result of long running disagreements over the role of train drivers and conductors. In 2016 Southern proposed implementing a ‘Driver Only Operation’ system, where the driver will assume responsibility for checking and closing the train doors on departure (rather than a guard) allowing the train to be operated by a single individual in certain circumstances. In addition, train guards will be replaced with ‘On-Board Supervisors’ as part of plans described by Southern as intended to modernise the railway. However, RMT are arguing that these moves are simply an attempt by the company to cut staff numbers and impose greater obligations on train drivers in the long term which will lead to reduced safety for both employees and passengers. The dispute deepened in December 2016 when the ASLEF (Associated Society for Locomotive Engineers and Firemen) union joined the RMT’s strike meaning that around 19,500 further train drivers became involved in the dispute including many London Underground and freight services causing widespread travel disruption, particularly within London. Employees were quoted as saying that they do not feel “valued by the company” and defending the strikes as a necessary means of educating the public and giving existing issues the necessary exposure. On 2 February 2017, ASLEF and Southern reached an agreement which saw a number of concessions being made by both sides. However, the dispute with RMT remains ongoing and there is considerable and mounting pressure on Southern, and the Department for Transport (who hold control of the relevant routes), to take decisive action in response to the demands of the union and bring an end to the months of disruption within Britain’s transport network.

Recent strike action has not been confined to the public sector and the long running dispute between British Airways (“BA”) and the Unite union over cabin crew pay has caused a huge amount of travel disruption for passengers since 2009. The dispute was triggered by BA announcing its plans to cut 1,700 jobs and freeze cabin crew pay in October 2009. Despite an initial High Court ruling that strike action in this case was unlawful based on an invalid ballot, talks between the parties collapsed in early 2010 and, in light of a re-balloting of its members by Unite, strikes commenced in March 2010. Various strikes and legal challenges, by both sides, continued to take place until May 2011 when an agreement was finally reached. However, the arguments were later re-ignited in 2016 when BA cabin crews voted overwhelmingly in favour of further strikes based on arguments that arose surrounding pay for cabin crew who have joined BA since 2010. Again, this dispute is ongoing and the various attempts to resolve these longstanding issues have so far been unsuccessful, however what is undeniable is that industrial action has had, and continues to have, serious financial implications for BA.

The TU Act 2016, which was brought into force on 1 March 2017, appears to continue with successive Conservative Government’s apparent efforts to curb the power of the trade unions and make taking industrial action increasingly difficult. One of the key requirements contained within the TU Act 2016 is that it requires a minimum threshold of 50% turnout in all industrial ballots and, where the action relates to ‘important public services’ (including health, education, fire, transport and border security services), at least 40% of those entitled must vote in favour of striking. There are also new requirements in relation to what information must be provided by the union, what information must be given to employers and arrangements surrounding the timing and duration of industrial action. In addition the Government has obtained new regulation making powers in resect of paid time off for trade union activities and activities in the public sector. It seems likely that these new obligations, in particular the minimum thresholds for voting, will make it increasingly difficult for trade unions to undertake legal industrial action in the future, especially in cases where disputes are relatively trivial or there are alternative means of resolving issues.

Whilst employers have recently been quick to blame the trade unions for what they consider to be increasing militancy, the unions have put forward their own view that there is a greater tendency of late for some employers to impose quick changes with minimal consultation. Undoubtedly the recession compelled many employers to reassess the efficiency and/or profitability of their businesses whilst simultaneously encouraging trade unions to more vociferously protect their members from redundancies, pay cuts and deteriorating working conditions. It is also apparent that this situation is likely to be at least a partial cause of the recent spate of high profile industrial activity. However it seems that, through the TU Act 2016, the Government are looking to restrict the remit of the trade unions and make legitimate strike action more difficult in future, possibly in the hope of encouraging alternative means of resolution.

For a review of your policies or any further advice regarding protecting your business, please contact our Employment team today.

As produced by Helen Watson for Gap Insight March/April 2017

To read the March/April 2017 issue of Gap Insight in full please click here

Helen Watson

Partner & Head of Employment Law
Email: [email protected]
Tel: 01244 405565

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