On 15 July 2015, the Government published a draft Trade Union Bill which sets out changes to tighten the law on industrial action.

What is the current position?

There is no general right to take industrial action under UK law. In most cases, employees taking industrial action will be acting unlawfully since by doing so, they will be acting in breach of their contracts of employment. A trade union calling for industrial action will therefore be inducing such breaches.

However, under current legislation, provided statutory conditions are met, employers are unable to sue trade unions for inducement and certain other torts, or to dismiss employees fairly for taking industrial action.

Much of the legislation regulating industrial action was introduced in the 1980s by the then -Conservative Government. The current provisions are now contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). These provisions are complex.

In summary, for employees and trade unions to be protected in connection with taking industrial action, the following conditions must be met:

  • The industrial action must be taken “in contemplation or furtherance of a trade dispute”
  • The action must be supported by a ballot
  • The ballot itself must satisfy a series of procedural requirements
  • The action must be lawfully called
  • The union must notify the employer of its intention to take action
  • The action must take place within a specified period after the ballot

What changes are proposed?

The Trade Union Bill 2015 had its first reading in Parliament on 15 July 2015. In it, the Government proposes to make various changes to TULRCA, the main ones of significance to employment law being:

1. Introducing a 50% turnout threshold for a ballot.

Currently, the only threshold for a valid ballot for industrial action is the requirement for a simple majority of those workers who voted in the ballot. The Bill proposes to change this to require that for industrial action to be protected, at least 50% of those eligible to vote must actually have voted in the ballot.

2. Additional threshold of 40% support in the case of “important public services”

In addition to the 50% turnout requirement, the Bill proposes that, in the case of certain key public services (to be specified in regulations but which may be any of the following services: health, education of those aged under 17, fire services, transport services, various nuclear-related activities and border security), at least 40% of all members eligible to vote in the ballot would need to have voted in favour.

The same would apply to employees engaged in activities that are “ancillary” to such services.

3. Information on voting papers and about ballot results

The Bill proposes that voting papers for industrial action ballots will need to include detailed information about the matter in issue, the type of industrial action balloted for (where this is short of a strike) and the period within which the action is expected to take place.

4. A four-month time limit for industrial action

The Bill also sets out a four-month time limit for taking industrial action after a ballot in favour. The Government has claimed that this is to ensure that mandates for industrial action are always recent. The current position is that, provided industrial action is started within a four-week period (or a longer period, as agreed), nothing can prevent a union from suspending and restarting action in reliance on the original ballot, as long as it is the same industrial action.

5. Increasing the notice to be given to employers notifying them of industrial action

The current rules provide that trade unions should give employers at least seven days’ prior notice of industrial action. Under the Bill, this notice period is proposed to be doubled to 14 days’ prior notice.

6. Opting in

The law currently requires that trade unions wishing to contribute to political parties or engage in other political activities must establish a political fund. Trade unions that wish to continue such funds must ballot their members on this issue every ten years.

Currently, where a trade union has a political fund, individual union members are treated as automatically signed up to pay the political levy, but can contract out of this if they choose to do so. The Bill, however, proposes to reverse this by requiring that individual union members would have to expressly “opt in” to contributing to the fund. The union would then be required to ask the member again every five years.

This proposal has proved very controversial as the unions argue that this would cut the amount of money they receive from its members for their political funds, and is really aimed at the Labour Party, which currently receives a substantial proportion of its income from trade unions.

The last time “opting in” was required was under the Trade Disputes and Trade Union Act 1927, also introduced by a Conservative Government. However, “opting out” has applied since that Act was repealed in 1946.

7. Picketing

As well as a non-binding Code of Practice on picketing, TULRCA sets out requirements for picketing to be considered lawful.

The Bill proposes further requirements for unions to supervise any picketing which takes place, by having a named union official (or another member familiar with the requirements of the relevant Code) to supervise the picket at all times.

The union or the “picketing supervisor” will also be obliged to inform the police and there will be detailed requirements in this connection.

Separately, the Government has launched a consultation on reforming legislation and the Code of Practice on picketing, with the aim of tackling intimidation of non-striking workers. One of the proposals the Government is consulting is whether there should be a new criminal offence of intimidation on the picket line. Currently, criminal liability for picketing only arises in limited circumstances under the Protection from Harassment Act and TULRCA.

Also in the case of public sector employers and unions, the Government proposes that regulations may be made requiring the publication of information about the time and cost of union officials’ time off for union duties, with the possibility of such time being limited in future.

In connection with the introduction of the draft Bill, the Government is also commencing consultation on whether to lift the ban on using agency staff to cover striking workers.

What is going to happen next?

The Trade Union Bill proposes the biggest changes in the law relating to trade unions and industrial action for almost 30 years. The Government has claimed that the aim of these changes is to establish a fair balance between employers and employees.

The trade unions see them in a very different light and have said that the restrictions now proposed are unfair and will make industrial action almost impossible, while the ability of employers to use agency workers will severely limit the effectiveness of any action actually taken.

Some commentators have questioned whether the proposed legislation is necessary, given that the number of working days lost because of industrial action is at historically low levels, especially when compared with the 1970s and 1980s; and in particular since there seems to be little evidence intimidatory picketing is a widespread problem.

Following the first reading of the Bill, consultation is now taking place on the 40% strike ballot threshold for key public sectors, picketing rules, and use of agency workers. These consultations are scheduled to end in September.