By Jo Seery Professional Support Lawyer &
Neil Todd Partner, Trade Union Law Group
Introduction
The prospect of the Employment Rights Bill obtaining Royal Assent draws ever closer with the hope that it will take effect this side of Christmas.
Whilst many of the rights the Bill affords workers still require secondary legislation, there are some important changes which will take place on (and shortly after) Royal Assent. This article focuses on some of those changes to the law on industrial action.
In ‘Making Work Pay’, Labour committed to ‘removing unnecessary restrictions on trade union activity….’. and that it would repeal ‘all’ of the anti-trade union legislation introduced in the last 14 years, including the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023.
In its ‘New Deal,’ Labour went further and said it would introduce electronic and workplace balloting and that its intention was that the UK law on industrial action should comply ‘in every respect’ with the international labour obligations ratified by the UK, including those of the International Labour Organisation and the European Social Charter. In this article we analyse whether that been achieved and what has changed more broadly.
What’s included?
- The Minimum Service legislation brought in by the last Conservative Government will be repealed immediately on Royal Assent. The provisions were a blatant attack on a Union’s fundamental right to strike, which required a minimum level of service to be provided during industrial action in prescribed areas of public services. The penalties on the Union if it failed to take reasonable steps to ensure that its members identified in “work notices” complied with the requirement to work, even in circumstances when the Union had conducted a lawful ballot for strike action, were severe. In particular, the Union would lose its immunity from being sued and workers would lose the right to claim unfair dismissal. A change in Government and a reluctance on employers to rely on the provisions, which many considered were unworkable, ultimately meant these provisions were never utilised. The threat will be removed entirely once the Bill receives Royal Assent.
- The Bill will also repeal certain provisions implemented under the Trade Union Act 2016 two months after Royal Assent. The requirement of 40% of those balloted having to vote in favour of industrial action in “Important Public Services” such as health, fire, transport, education and border security will be removed. Likewise, the obligation to provide a summary of the trade dispute on the ballot paper and the need to describe the types of industrial action short of a strike that the Union intends to take and the period over which any industrial action will ensue, will no longer exist.
- Importantly, there will also be some simplification of the notice requirements Unions have to comply with. The requirements for the Notice of Ballot will be less onerous with Unions no longer obliged to provide figures for the number of members in each job category and the number at each workplace to be balloted in respect of non-check off members. However, the Notice of Ballot will still have to list the actual workplaces and job categories and give the total number of employees concerned.
- The requirements relating to the Notice of Action are also amended in that it will now only be necessary to give 10 days’ notice of any intended action rather than 14 days, and it will not be necessary to give numbers for each job category being called out to take action. However, there will still be a requirement to give the number of members in each workplace who are being called out.
- The mandate for the life of the ballot will be extended to 12 months (the current position is 6 months unless the employer and employee agree to extend to 9 months) and the requirement to appoint picket supervisor under s220A of TULRCA is also repealed.
- Finally, protection for automatic unfair dismissal will be extended for the whole period of industrial action, rather than just for the first 12 weeks of action as is ordinarily the position under the current framework. The right not to be subject to a detriment for taking industrial action is subject to a separate consultation and will not take effect until October 2026.
What’s Not Changed
The requirement that for any ballot for industrial action to be valid there must be a 50% turnout will not be repealed for now. It is anticipated this key tenant of the Trade Union Act 2016 will not be removed from statute until electronic balloting is introduced which is currently envisaged to happen in April 2026. There is no change to the requirement to serve a Notice of Ballot 7 days before a ballot can open, no change to the requirements around notifying employers and members of the ballot result and no change to the provisions on “Prior Call” (which prevents the Union inducing any action before they have had a lawful ballot and served a Notice of Action that meets the statutory requirements and renders invalid any subsequent ballot on the same dispute if it is established there had been such a prior inducement). It will also still be necessary to formulate a trade dispute that falls within section 244 TULRCA and the ban on any form of secondary action remains.
Comment
The repeal of various elements of the 2016 Act, and a relaxing of some of the obligations for the provision of information in the Notices of Ballot and Action should hopefully reduce some of the more spurious challenges to industrial action ballots. The most frequently litigated area of the UK’s industrial action legislation is the notification and information provisions. Too often they have been used to create “traps and hurdles” for trade unions in litigation which has led to the antithesis of good industrial relations. Furthermore, the long overdue introduction of electronic balloting (when it finally arrives) should increase member participation in ballots and thereby increase the leverage trade unions have when in dispute.
Nevertheless, the changes could have gone further. For example, the requirement for a Notice of Ballot should be removed in its entirety. The European Committee of Social Rights has more than once declared that the requirement for a Notice of Ballot at all amounts to an excessive restraint on the right to take industrial action, given that the Union must in any event give notice before actually calling industrial action. On that basis taking the intentions expressed by Government in the “New Deal” at its word, the requirement. should be removed. The provisions taken as a whole, remain restrictive and Unions will still need to undertake onerous checks when planning industrial action and be meticulous with ensuring membership records are accurate.
However, it is welcome news that some restrictions in the existing legislative framework are finally being removed and with that comes the hope that employers will place a greater focus on trying to resolve industrial disputes in the workplace as opposed to adopting legal strategies to stop industrial action ensuing in the first place.
