The Trade Union Act introduced rules on balloting for industrial action in important public services that set the bar high for workers. Nick Chronias looks at how the law might work in practice.
New rules under the Trade Union Act 2016 (TUA) set a high bar for ballots to authorise industrial action by workers across key public services.
Only workers in a limited number of essential roles (for example, the police, and prison officers) are excluded from the legal right to strike. However, the new ballot rules create a category of Important Public Services (IPS) where industrial action must meet additional requirements.
More on industrial action
It remains to be seen whether these requirements act as a disincentive to unions balloting IPS staff.
There has been much attention in recent years on strikes in public services such as tube strikes, the action by Southern Rail staff and the 2016 junior doctors’ strikes. The junior doctors’ strike accounted for 40% of all working days lost to industrial action last year. Coverage has sometimes focused on the low total percentage of union members participating in a ballot and the even smaller number voting to take action.
As with many of the measures contained in the TUA, the new IPS balloting rules were designed to address the perception that unions can call action too easily and frequently, causing public disruption without broad support from union members.
However, the new rules may raise as many issues as they solve for some employers, particularly in the NHS.
Challenges of the new rules
The TUA balloting rules mean that now (since 1 March 2017), 50% of eligible union members have to participate in a vote to authorise industrial action. For employees in important public services an additional threshold applies, and 40% of all eligible voters must vote in favour of action.
The Government has published regulations defining which services are “important”. There are five sets of Important Public Service Regulations 2017 – for health, transport, education, fire, and border security, detailing those services where the 40% threshold will apply:
- Health services, such as ambulance services, accident and emergency services in hospitals, services in high-dependency units and intensive care in hospitals, emergency psychiatric services, and emergency obstetric and midwifery services.
- Transport services, such as London bus services, passenger rail services (including maintenance and some station services), air traffic control services, and airport and port security services.
- Teaching services at non-fee-paying schools and academies.
- Firefighting services, including dispatching services and handling emergency calls.
- Border control services, such as patrol, inspection and intelligence services.
Further regulations are planned to cover the nuclear decommissioning sector.
Some of these categories, especially when it comes to health services, are far narrower than expected when the TUA was passed and many doctors are not apparently covered.
The Government has also produced guidance on which workers fall within the services covered, and how the threshold is to be applied in practice.
The key test is whether the majority of union members entitled to vote are “normally engaged in” IPS. The union must hold a “reasonable belief” as to whether or not this is so.
However, this quickly becomes complicated where ballots cover a mixture of workers who perform IPS and those who do not, or ballots cover workers who only sometimes perform IPS, or both.
In some sectors such as fire, it is clear-cut which roles will be covered, and the vast majority of workers eligible for any ballot will be performing IPS for all of their working time. However, in other situations there will be more doubt; the most obvious example being the NHS hospital setting.
Little clarity
Where ballots cover various roles, a majority of the workers covered must normally be engaged in IPS. However, for many sectors there is little clarity on precisely which roles will be included, and the government guidance is clear that the examples provided are not an exhaustive list.
Practically, staff such as cleaners, receptionists and phlebotomists are essential to the running of a hospital A&E department, but the guidance lists only doctors and nurses as examples.
Where workers perform multiple duties, the key question will be whether they are normally engaged in delivering IPS. The union must assess what is “normal” in the specific circumstances, looking at: how regularly the worker delivers IPS; the proportion of time spent on duties; the worker’s employment contract; the substantive role at the time of the ballot or proposed action (although no guidance is given on which will be the most relevant time); and any temporary allocation to duties.
Let’s take an example: if 500 hospital staff are balloted, 200 of them are IPS staff, 250 staff vote in the ballot and 126 vote yes there would still be a mandate for industrial action.
What should employers do in practice?
The onus is on a union planning action to ensure that the action is lawful. So, the burden of assessing which workers are performing IPS will fall on unions. However, to conduct a valid ballot a union is only required to hold a reasonable belief as to the relevance of the 40% requirement, even if it later turns out to be incorrect.
The amount of information required to demonstrate a reasonable belief is as likely to be tested as the accuracy of any calculation of workers’ IPS duties.
While unions maintain details of members’ names and addresses, they will not generally collect any detail on how members spend their working time. While they also may begin to seek this information from their members, they’re likely to request information from employers about IPS duties, either proactively, or at the point they notify employers of the workers covered by a planned ballot for action.
Affected employers will want to consider the extent to which they will cooperate with a union seeking detailed information about staff duties. There is no duty to provide it, but it’s possible that a failure to provide information may be used by a union to argue that they held a reasonable belief the IPS threshold did not apply.
Employers will also want to have this data for their own purposes if they hope to challenge the legality of industrial action. And strategically they will want to be able to assert that the threshold applies in advance of a ballot rather than after it is under way, in order to challenge any union claim of a reasonable belief otherwise.
Looking ahead
Many aspects of the new IPS requirements are unclear but we are unaware of any legal cases on them yet. However, industrial action in IPS has already been blocked by the new turnout requirements of the TUA.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
In June this year the RMT union balloted 3,743 London Underground staff on action, but achieved only a 34.4% turnout, below the 50% required. In addition, while 80% of those who voted supported action, this was only 28% of all eligible voters.
However, the threshold will certainly not be unachievable for unions. When junior doctors voted for strike action in November 2015, turnout was 76%, and 98% of ballots cast were in favour of strike action; a “Yes” vote of about 74.5% of all eligible voters. So, this new law adds another layer to our complex balloting laws.
