The Government has published its response to the consultation on tackling intimidation on non-striking workers. The outcome is that the Government will not pursue the majority of the proposals outlined in the consultation paper. The current picket supervision measures in the Trade Union Bill will be slightly modified, but no further statutory measures will be adopted. In addition, the statutory Code of Practice on Picketing will be updated to clarify the legal protections available to those who have suffered intimidation, including online intimidation. There will be no new measures requiring unions to publish their intended plans for action during industrial disputes, or to report annually on picketing and protest activity.

Background

The Trade Union Bill (the Bill) is currently making its passage through Parliament.  The Bill had its third reading in the House of Commons on 10 November 2015. 

The key aspects of the Bill are as follows:

  • A new requirement for a 50% turn out of those eligible to vote in all industrial action ballots:the current position is a simple majority of those who have voted is needed.
  • An additional requirement for a 40% "yes" vote from those eligible to vote in key sectors:the affected sectors will be health, education, fire service, transport, border security, and radioactive waste.  A public consultation on the specific roles to be covered closed on 9 September 2015.  The response is awaited.
  • A new expiry date for ballot mandates of four months: currently, there is no fixed end point by which industrial action ceases to be supported by the original ballot and a union is entitled to stop and start industrial action.
  • A requirement for more information on the ballot paper: the new information will cover what the proposed industrial action relates to, what form of industrial action is proposed and when it will take place.
  • More information to be given to members after the ballot has taken place: unions will be asked to give their members more information, which essentially relates to whether the new ballot thresholds have been reached.
  • A removal of the ban on using agency workers to cover striking workers: currently, it is unlawful for employment businesses to supply an employer with a temporary worker to cover a striking workers (or another worker who has been assigned to cover a striking worker).  A public consultation on this aspect of the Bill closed on 9 September 2015.  The response is awaited.
  • Union supervision of picketing: the Bill will introduce a requirement for unions to appoint a "picket supervisor" who has written authorisation from the union, wears a badge or armband and is known to the police.  A public consultation entitled: "Tackling Intimidation on Non-Striking Workers" closed on 9 September 2015.  The purpose of this consultation was to seek views on whether any further picketing-related measures should be added to the Bill.  The Government published its response on 3 November 2015.  We report on the outcome below.

Consultation on tackling intimidation on non-striking workers

The Government was concerned that intimidatory tactics (e.g. aggressive behaviour, verbal abuse and the filming of non-striking staff) were common practice on picket lines.  This consultation was focussed on what else the Government should do to tackle the intimidation of non-striking workers. 

The consultation asked respondents for evidence of the intimidation of non-striking workers.  Over half of respondents said picketing was a peaceful event which afforded the union the opportunity to communicate its reasons for industrial action.  However, others noted intimidation both on and off the picket line.  On the picket line, some referred to the presence of dogs, verbal attacks, the drinking of alcohol on picket line, and how non-striking workers had been followed. 

Away from the picket line itself, some spoke of whispering campaigns, aloofness, lack of co-operation by striking workers, unfriendly body language,  email pressure and the naming and shaming non-striking workers on notice boards.  One prominent concern was the growing use of social media as a means to pressurise non-striking workers (e.g. posting photos of them with derogatory comments, parodying staff with images and innuendo and harassment and bullying).

In respect of intimidation on the picket line the Government's view is that the existing Bill proposals on the supervision of picketing are appropriate and proportionate measures to tackle the problem.  In respect of intimidation away from the picket line, the Government has confirmed that it will update the statutory Code of Practice on Picketing (the Code) to clarify the range of legal protections which already exist. 

Whilst the Government expressed concern regarding the growing phenomenon of online intimidation, they have decided not to introduce any further Bill measures, or criminal sanctions.  Instead, the Code will be updated to reflect the existing legal protections available for hose who have suffered such intimidation (e.g. under the Communications Act 2003 and the Malicious Communications Act 1998).  The Government has said it will also work with the police, ACAS and other stakeholders to improve the advice on the rights and responsibilities of all parties involved.

The other key responses are as follows:

  • There will be no further Bill measures to strengthen the supervision of pickets (e.g. compulsory training and/or identification of all picketers).
  • The current Bill proposal on picket supervision will remain but with the following amendments:
    • the letter of authorisation will cover the picketing activity (and does not need to include the picket supervisor's name); and
    • only the relevant employer (or their agent) will be entitled to see the letter of authorisation.

These amendments were conceded in response to data protection concerns  / sensitivities around union membership being known.

  • There will be no new Bill measures requiring unions to publish their intended plans for action during industrial disputes, including social media campaigns.
  • There will be no new Bill measures to impose an annual reporting requirement on picketing and/or protest activity on unions

Government response to the consultation on tackling intimidation on non-striking workers