Do Tory plans strike a blow against industrial action?

London bus drivers on strike last month. Photo: REX/Grant Falvey/LNP
London bus drivers on strike last month. Photo: REX/Grant Falvey/LNP

The Conservatives have indicated that their manifesto for the 2015 general election will include a tougher stance on strike ballots, something that the unions say is unfair and unnecessary. Jawaid Rehman looks at the proposed changes to the law and the practical ramifications of any changes.

In February 2014, a two-day strike on the London Underground brought the city to a standstill, and an ongoing dispute involving London bus drivers threatens more strikes. The Conservatives have reacted strongly, promising to include in their 2015 manifesto measures to toughen current strike laws. However, trade unions argue that such strikes are simply a product of harsh economic times and that a “clamp down” is both unnecessary and unfair.

Current rules
The current rules governing industrial action are set out in the Trade Union and Labour Relations Act 1992. There are strict procedural requirements and rules that govern matters such as the notification to members of a ballot, the voting process, the notification of results and any planned action.

Many unions argue that current legislation is already restrictive enough – for example, one recently argued in the European Court of Human Rights that the present rules infringed freedom of association. While this case was unsuccessful, it is indicative of a view among employee representatives that strike action in the UK is already tightly regulated.

However tight the current regulations are, this was not enough to prevent the recent London-wide bus drivers’ strike by Unite members, and further strikes are planned. The City’s bus routes are contracted out to a number of different operators where wages reportedly varied by up to £3 per hour. As a result, the bus drivers are striking for equal pay.

Strikes over pay could become more common as a direct consequence of the media coverage of equal pay litigation in the public sector. Employees in other sectors are now prepared to question the fairness of their pay or consider bringing a claim against their employer. However, in order to bring valid equal pay claims, there are fundamental requirements and hurdles to overcome and therefore strike action may instead be the preferred option.

The Conservative strike proposals

To tackle the threat of industrial action (particularly in certain sectors), the Conservatives have promised to include the following in their 2015 manifesto:

  • A strike affecting health, transport, fire services or schools would need the backing of 40% of eligible union members. Currently, a strike is valid if backed by a simple majority of those who vote.
  • At least 50% of eligible union members must vote in order for a strike to be lawful. At present, there is no minimum turnout requirement.
  • A three-month time limit after the ballot for the strike action to take place, putting an end to so called “rolling mandates” whereby the actual walkout may take place months, or even years, after a vote.
  • Additional proposed measures including a requirement to include on the ballot paper additional details about the proposed strike, such as the nature of the disputes and the form and duration of the proposed action. Members might be asked to vote separately on each element.
  • Unions to give 14 days’ clear notice before starting a strike (rather than the current seven days) and limits would be set on how, where and why picketing during strike periods can take place.

An end to strikes?

The first two of these proposals have attracted the most attention and will be welcomed by some employers – the more stringent the rules on striking lawfully, the fewer days will be lost to industrial action. However, the TUC has stated that this would render lawful strikes “close to impossible”, as the 50% threshold seems to be out of reach in most cases. Indeed, the aforementioned bus drivers’ strike would not have met these requirements.

If a strike mandate is more difficult to secure, then Unions may be more willing to engage in meaningful negotiation and discussion. Calling a ballot may become a last resort and, as a result, we may see a greater emphasis on existing dispute resolution procedures. On the other hand, it may lead to an increased incidence of unlawful strikes, resulting in problematic disciplinary and other management issues. The reputational damage could be even worse.

We will have to wait and see whether or not these proposals ever come to fruition. They would only potentially be enacted if the Conservatives succeed at the general election.

Jawaid Rehman

About Jawaid Rehman

Jawaid Rehman is a partner in the employment and pensions team at Weightmans LLP.
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