Powers to the people

Employers could see trade unions start to flex their muscles as enhanced
rights for strikers start to bite. Simon Horsfield takes a closer look at
exactly what is allowed by the new laws

The song used to say, in strident, triumphal tones, that you couldn’t touch
them, but no one believed it. Employment legislation certainly did them no
favours.

Employment tribunals were left with no jurisdiction to hear an unfair
dismissal complaint presented by an employee dismissed for taking part in
strike action, unless other "striking" individuals had been treated
differently.

Additionally, employees who were dismissed for taking part in unofficial
strike action – that had not been authorised by the union – had no right
whatsoever to complain of unfair dismissal. So no matter how loudly they sang,
the tribunals simply could not hear them.

However, on 24 April 2000, employment legislation changed and unfair
dismissal protection was given to those taking part in protected strike action
– that is strike action taken "in contemplation or furtherance of a trade
dispute".

Employers must be aware that it is now automatically unfair to dismiss an
employee if the principal reason for dismissal is that he or she has taken part
in protected industrial action and:

– The dismissal takes place within eight weeks of the day on which the
employee began to take part in the action;

– The dismissal takes place after the period of eight weeks, but the
employee had stopped participating in the action before the end of the period;
or

– The dismissal takes place after the eight-week period, the employee is
still taking part in the action, but the employer has not taken reasonable
steps to resolve the dispute.

Union immunity for protected action

The starting point to understanding the concept of immunity is that without
it, any trade union that authorises or endorses industrial action may be sued
by:

– Any employer or its customers or suppliers who suffer damage as a result
of the action; or

– Anyone from whom goods or services are withheld because of the action.

However, provided the union’s action is taken "in contemplation or
furtherance of a trade dispute" and provided certain other statutory
conditions are met, the union has immunity from civil claims. It is to such
"protected action" that these new laws apply.

Period of grace

As can be seen, the new legislation gives an eight-week period of grace for
employees to take part in protected strike action without fear of reprisals.

Given the nature of the protection available to employees during the
eight-week period, employers will need to understand fully how they should
calculate the period. In particular, they should bear in mind that the period
begins with the day on which the particular employee first takes part in the
action, so it is quite conceivable that the eight-week period will not be the
same for each individual employee.

It also appears to be irrelevant whether subsequent action is continuous or
intermittent. So if the action is intermittent, the eight-week period of grace
will begin on the first day of the first bout of action.

Employers must attempt resolution

Employers will also have to give consideration to how they can take
reasonable steps to resolve any protracted dispute with the union which results
in strike action lasting beyond eight weeks.

When considering reasonableness, tribunals will look at whether or not
either side to the dispute has:

– Complied with the provisions laid down in any applicable collective
agreement;

– Offered or agreed to begin or resume negotiations;

– Unreasonably refused to make use of the services of Acas;

– Unreasonably refused the services of a mediator.

Tribunals will not, however, concern themselves with the merits of the
underlying dispute.

Industrial action ballots

The statutory provisions on ballots and notice requirements used to be
complex and pedantic with mistakes potentially costing the union dear in terms
of their losing protection from civil claims.

However, the Government has significantly revised the old statutory
provisions and, as a consequence, has published a new draft code of practice on
industrial action ballots and notice to employers (see above). The new draft
code enshrines the Government’s desire to make the 1995 Code easier to
understand and more concise. As a result, the unions have further reason to
lead their members in a rousing chorus of the old song.

No doubt we will shortly begin to see the unions taking advantage of these
new provisions as they once again begin to flex their muscles.

Clearly, the employer’s most frequently brandished weapon (the statutory
provisions on ballots and notice) has been blunted by the changes in the law.

However, there are still some pitfalls for unions, not least the draft Code
itself which, while it imposes no legal obligation, is admissible as evidence
and will be taken into account in any proceedings relating to lack of immunity.

So perhaps you will be able to touch them after all.

Simon Horsfield is a solicitor at Beachcroft Wansbroughs in Manchester

Draft code of practice on industrial action ballots – major changes

Ballot notices information

The information that must be given to the employer on a ballot notice has
been simplified. Case law which suggested unions should name individuals they
believed were entitled to vote, has in the past, caused confusion.

To clarify this, and to protect the union from having to disclose individual
names against the wishes of its members, unions will only have to give
information as to the number, category or workplace of the employees concerned.
A notice will not fail to satisfy the requirements because it does not name
individual employees.

Sample ballot papers

Where more than one employer’s workforces are being balloted by a union
about proposed industrial action, it will now be enough for the union to send
each employer a sample of the ballot paper it intends to send to that
employer’s workers.

This contrasts with the old position where the law required employers to
receive a sample voting paper and all variants.

Content of ballot papers

The most visible change in the legislation concerns additional wording to be
included at the end of the statutory warning that already appears on ballot
papers.

In addition to the warning that ‘taking part in industrial action may be in
breach of contract’, it will now go on to notify employees that dismissal for
taking part in official strike action will be deemed unfair if it takes place
fewer than eight weeks after an employee starts taking part in the action.

Disregarding small mistakes

The union is supposed to give every member who is likely to be induced to
take part in industrial action the opportunity to vote in an industrial action
ballot.

Again, this was a pitfall for unions. However, new provisions acknowledge
the complexity and margin for error in organising industrial action ballots and
adopt a more pragmatic approach, so that any accidental failure to involve
everybody in the ballot (or to involve too many people) that is unlikely to
affect the result of the ballot will not invalidate the ballot itself.

Suspension of industrial action

After continuous industrial action has been suspended by agreement with the
employer, unions are no longer required to give a further seven days’ notice
before resuming industrial action where:

– The union has agreed with the employer that industrial action will cease
to be authorised or endorsed from a specified date to allow negotiations to
take place, but that it may be authorised or endorsed again on or after a
subsequent date; and

– The union in fact ceases to authorise or endorse the industrial action
with effect from the agreed suspension date; and

– The union authorises or endorses the resumed action after the agreed
period of suspension has ended.

The effect of this is mitigated slightly in the draft code which warns that,
for the exception to apply, the resumed industrial action will have to be of
"the same kind" as that covered in the original notice. This will not
be the case if the action is taken, for example, by different or additional
workers.

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