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

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

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.

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.

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