Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+

Employee relationsIndustrial action / strikesInformation & consultationTrade unions

Thomas Cook case reveals what unions must tell employers about industrial action plans

by Nick Chronias 3 Jan 2018
by Nick Chronias 3 Jan 2018 Thomas Cook tried unsuccessfully to stop pilots from striking on the grounds that insufficient information was provided to authorise industrial action. Photo: Tim Goode/Pa Wire/PA Images
Thomas Cook tried unsuccessfully to stop pilots from striking on the grounds that insufficient information was provided to authorise industrial action. Photo: Tim Goode/Pa Wire/PA Images

What does a union have to tell its members and the employer about planned industrial action? Nick Chronias explains.

When travel company Thomas Cook went to court in September 2017 the new provisions of the Trade Union Act 2016 (TUA) faced their first High Court test. The company was trying to prevent pilots represented by the British Airline Pilots Association (Balpa) from striking on the grounds that the information contained on the ballot paper had been insufficient to properly authorise industrial action.

The unsuccessful injunction application shines a spotlight on one of the TUAs central tenets – that unions preparing to call industrial action should provide both members and employers with much more information than in the past. However, based on this decision, this is not as much information as employers thought they would receive.

The Thomas Cook decision points to complexity and uncertainty on how much information unions have to provide under the new law.

The legal starting point (the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) as amended by the TUA) is that there are several key points in a dispute where a union must provide information to its members, to an employer, or to both as follows.

Before the ballot

More on trade union information and consultation

Model policy: agreement on information and consultation with employees

Informing and consulting on employment matters

As a first public step in balloting for industrial action, at least seven clear days before the opening of a ballot, a union must provide any affected employer with notice that there will be a ballot, and give the opening and closing dates.

The union must also provide information on the workers to be balloted; whether they pay dues automatically through the employer’s payroll system (check off) or by direct debit. However, for the second group, unions are required to provide more detailed information about those employees than they are for the first.

Where union members pay their dues by check off, the employer will already have a clear picture of how many members are employed and in which parts of the business. That means when industrial action is on the cards a union will only need to convey whatever information is necessary to let the employer know which of them are to be balloted – at a single site employer this could be as brief as “union members in warehouse roles”.

However, where members pay their dues directly to the union, it’s likely that an employer will have little idea which employees are union members and the balloting process will be a point where a union will have to show its hand by indicating how many members are in any given group or location.

In my experience, information on those employees being balloted is the most common area for employer challenges. Although they do not have to, unions often choose to present detailed breakdowns for members that can be at odds with the information the employer holds.

The TUA did not change the law to force unions to provide names, national insurance numbers, or any identification information to the employer during a ballot.

The union must provide the employer with a sample ballot paper no later than the third day before the opening day of the ballot. In practice, unions will often send this along with the notice of ballot.

The ballot paper

The first ballot information that must be provided to union members by law comes on the ballot paper itself. Because the union must send the employer a sample three days ahead of the ballot going to members, an employer will know what is to be put to a vote.

The TUA has introduced three more substantive requirements to the information to be provided to employers:

  1. That the union provide a summary of the matters in issue in the dispute.
  2. That if industrial action short of a strike is proposed, details are given of the types of action planned.
  3. That details be given on when industrial action is expected to take place.

The TUA is not prescriptive about wording; unions are likely to have a fair amount of freedom to frame the dispute in the way that maximises member support. There is no requirement to provide any detailed history of negotiations. However, the new requirements will be more helpful for employers, because they:

  • Take away the element of surprise from action short of a strike, such as work-to-rules or overtime bans
  • Provide some extra opportunity for contingency planning and messaging to employees and customers
  • Give a clearer sense of what the dispute is about, which was not always the pre-TUA position
  • May also work to lock a union in to the action specified, in the timescale specified, over the issues specified. It has yet to be tested to what extent any shift in issues or tactics may invalidate the mandate of the ballot and require a new vote. However, there is an argument that where multiple disputed issues are summarised on the ballot and influence a “Yes” vote, but some are resolved by the time action began, that the ballot does not lawfully mandate that action. Similarly, what if the employer’s response to the issues in dispute is “that’s news to me”? That’s likely to raise a different factual question on whether there is actually a dispute between union and employer on the issue(s). These points are highly likely to be the subject of future case law.

The dispute in the Thomas Cook pilots’ case was over whether a voting paper proposing industrial action “on dates to be announced over the period from 8 September 2017 to 18 February 2018” met the requirement to “indicate the period within which the industrial action … is expected to take place”.

The court held that it was only necessary for a trade union to specify the period within which action was expected to take place, taking into account the dynamic nature of industrial action and the desirability for both sides of allowing flexibility.

So, employers hoping the law would require unions to actually specify the dates on which action is planned will be disappointed. The Thomas Cook case could strip this duty of any meaning by allowing unions to simply state that action could take place at any time over the six-month period for which the ballot result remains live.

It will take time and future legal challenges to show exactly where the balance between certainty and flexibility lies. We anticipate it will fall somewhere between giving exact date(s) and a six-month window.

Results of the ballot

As soon as the ballot result is known, unions must alert members and affected employers. The timescale here is tight – “as soon as reasonably practicable”– and following amendments from the TUA 2016, detailed information must be provided to both members and employers on the number of individuals entitled to vote, the number of votes cast, the numbers answering “Yes” or “No” to each question on the paper or returning invalid ballots, and information on whether new turnout thresholds brought in by the TUA are met.

Moving to industrial action

Under the additional provisions inserted by the TUA, employers will not only have a clearer picture in advance of a ballot what action is being planned, and of how much member support it has garnered, they will also have more notice of any action taking place.

Unless the employer and union agree that seven days’ notice of industrial action is sufficient (we do not expect this to happen often), 14 days’ notice must now be given – a helpful extension both for attempts to resolve the dispute, and any legal action.

This notice must be clear on the workgroups and locations of workers who will be taking action, what the action will be, and specifically whether it will be continuous or discontinuous.

Sign up to our weekly round-up of HR news and guidance

Receive the Personnel Today Direct e-newsletter every Wednesday

OptOut
This field is for validation purposes and should be left unchanged.

However, oddly, it does not have to specify the type of action short of a strike proposed. What if a union changes its mind between the ballot notice and notice of industrial action; say from a work to rule to overtime ban? Then there’s no strict obligation to inform the employer of this. However, we can see this being an area for legal challenge if the employer is not informed.

Conclusion

The trend then is for more data and more disclosure. Employers will have more opportunities than before to challenge and plan for industrial action in their workforces, but perhaps not as much as at first appears. No doubt these boundaries will be explored in the courts. For now, employers should carefully scrutinise the information provided by unions at each stage of the balloting process.

Nick Chronias

Nick Chronias is a partner at DAC Beachcroft LLP.

previous post
Gig economy legislation: What developments can we expect this year?
next post
Council offers extra maternity leave to mothers of premature babies

You may also like

Public sector workers gain pay rises of up...

22 May 2025

Ryanair demands flight attendants pay back salary increase

21 May 2025

Minister defends Employment Rights Bill at Acas conference

16 May 2025

Union rep teacher awarded £370k for unfair dismissal

15 May 2025

‘Polygamous working’ is a minefield for HR

14 May 2025

Nurses threaten strikes if pay demands not met

12 May 2025

Construction workers win compensation claim against defunct employer

9 May 2025

How can businesses build protections for gig workers?

7 May 2025

Two-thirds of school leaders suffering mental ill health

6 May 2025

Half of workers waste two hours a day...

6 May 2025

  • 2025 Employee Communications Report PROMOTED | HR and leadership...Read more
  • The Majority of Employees Have Their Eyes on Their Next Move PROMOTED | A staggering 65%...Read more
  • Prioritising performance management: Strategies for success (webinar) WEBINAR | In today’s fast-paced...Read more
  • Self-Leadership: The Key to Successful Organisations PROMOTED | Eletive is helping businesses...Read more
  • Retaining Female Talent: Four Ways to Reduce Workplace Drop Out PROMOTED | International Women’s Day...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2025

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2025 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • Brightmine
    • Learn more
    • Products
    • Free trial
    • Request a quote
  • Webinars
  • Advertise
  • OHW+