The Government has recently published its awaited and controversial Trade Union Bill, setting out reforms highlighted in the Queen’s Speech, such as changes to strike thresholds, conduct requirements and the provision of information regarding facility time in the public sector. In this briefing, we summarise the Government’s proposals and explore some of the key implications for employers in the education sector. We also consider a recent Court of Appeal decision regarding the appropriate approach to the deduction of pay for striking workers.
1. Trade Union Bill – key reforms
The Government has outlined a number of key proposals for reform:
- a valid ballot mandate for strike action will require at least 50% of the members to vote, and a majority of them vote yes;
- a higher test will apply in “important public services” – such as health, education of those aged under 17, fire, transport, nuclear energy and border security, in which at least 40% of those balloted must vote for industrial action as well as a majority doing so;
- a minimum of two weeks’ notice of strike action;
- the voting paper to identify the dispute and to specify the type and duration of the proposed industrial action;
- a time limit of four months for industrial action to take place following a ballot - currently action can be taken indefinitely, provided the dispute remains live;
- a requirement for pickets to be supervised by a named official, potentially enforceable by injunction;
- a requirement for unions to provide information in their annual return on the amount of industrial action taken on each dispute;
- a requirement for opting-“in” to the political fund (as opposed to the current system of opting-“out”);
- a requirement for public sector employers and (yet to be specified) employers delivering public services to publish information about how much time off they allow to trade union officials, with a reserved right to limit the amount and cost of time off allowed;
- a series of measures to ensure greater scrutiny of unions’ internal governance;
- a right for the Certification Officer to impose a levy on unions and employers associations to cover his expenses.
The Bill is accompanied by three consultations, seeking views on:
- the type of public services, and the grades of worker within them, which will be subject to the new 40% threshold (Consultation on ballot thresholds in important public services);
- additional proposals to tackle intimidation, both on the picket line and also involving the use of “leverage” style tactics, potentially requiring unions to give advance notice of any protests they intend to organise (Consultation on tackling intimidation of non-striking workers); and
- a proposed repeal of the ban on use of agency workers to cover for striking workers (Consultation on hiring agency staff during strike action: reforming regulation).
Given the Parliamentary timetable, the Bill is not expected to be implemented until next Spring, at the earliest. The reforms will not be retrospective and will only affect ballots arising after the Bill becomes law.
However, the ban on the use of agency workers could be lifted much sooner as ministers already have power in existing legislation to change this aspect of the law.
We summarise below some of the key proposed changes:
Higher thresholds for ballots
Requiring at least half of the members entitled vote in a ballot to do so, is a significant shift from the current position, where ballots may be carried by a simple majority of those voting. So, whereas currently, a ballot would be supported if five out of 100 members vote and three of those vote “yes”, under the Bill, at least 50 out the 100 would need to vote and, of those, at least 26 would need to vote, “yes”.
An even higher threshold will apply for employees engaged in important public services. In those sectors, which will be clarified in future regulations but are likely to include health, education (the Bill refers to ‘education of those aged under 17’), fire, transport, nuclear energy and border security, a mandate for action would only be secured if 50 out of 100 members vote and at least 40 vote “yes”.
Employers providing these services will have an opportunity in the consultation to submit their views on how these provisions should be applied.
Preventing intimidatory pickets and protests
The Government’s proposals for reducing intimidation on the picket line includes considering whether the rules governing picketing should be made legally enforceable.
More radically, it also extends to considering whether unions organising protests (such as Unite’s Leverage tactics) should be required to give advance notice of “…the details of their picketing and protesting strategy to employers…”.
Facility time in the public sector
The Bill inserts a new section 172A into the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULR(C)A 1992’) which enables the Government to make regulations requiring some or all public sector employers (see below) with one or more trade union representatives to publish information about the time off taken by those representatives for trade union duties and activities (referred to as “facility time”).
According to the Government, the new provisions are designed to promote transparency and public scrutiny of facility time and to encourage employers to moderate the amount of money spent on facility time in light of that scrutiny.
(a) What information must be published?
The information that could be required to be published includes, in summary:
- the number of such representatives by type;
- how many of them spend a specified percentage of their time on trade union duties and activities;
- information about the employers’ spending on trade union duties and activities;
- information relating to facilities provided for use by trade union officials.
Regulations (which have not been published as of yet) may make provision as to the times or intervals at which the information is to be published and the form in which it is to be published. The regulations may also impose different publication requirements on different categories of relevant public sector employers.
(b) Which employers will be covered?
Further information about the employers which will be covered by these new rules will be set out in regulations which will be published in due course. However, the currently proposed new section 172A TULR(C)A 1992 includes a number of relevant provisions as regards the proposed scope of the scheme:
The proposed new section 172A(1) states that:
“A Minister of the Crown may by regulations require relevant public sector employers to publish [the relevant information]”
The proposed new section 172A(2) states that:
“An employer is a relevant public sector employer if the employer-
- is a public authority, and
- has at least one employee who is a relevant union official.”
The proposed new section 172A(9) clarifies the potential application of the rules further, and states:
“The regulations may provide, in relation to a body or other person that is not a public authority but has functions of a public nature and is funded wholly or partly from public funds, that the person is to be treated as a public authority for the purposes of subsection (2).”
Further explanation is contained in the explanatory note to the Bill. This says that public sector employers are employers that are public sector authorities or are to be treated as such:
“This would include central government bodies such as Civil Service departments including non‐ministerial departments and their executive agencies, Non Departmental Public Bodies, local government bodies such as councils, fire and rescue authorities and Transport for London. It would also include NHS bodies (including trusts), state‐funded schools (including academies and free schools) and public corporations such as the BBC. A public authority may be a body or may be an office holder.”
Whilst the explanatory note does not expressly refer to further education and higher education institutions, we understand that the proposals regarding facility time are intended apply to both further education and higher education (in addition to schools and academies). It is hoped that this will be clarified further when the regulations are published.
(c) What additional powers are imposed in relation to facility time?
The Bill also provides a ‘reserve power’ for further regulations which limit the paid time off for facility time taken by the employer’s trade union representative to a percentage of the representative’s working time. The explanatory notes give an example of an employer that employees a number of trade union representatives who spend 100% of their working time on facility time. This proposed new power may be exercised so as to limit the time spent by those representatives to 50% of their working time. Alternatively, or in addition, the regulations may cap the percentage of the employer’s pay bill that is for facility time. The regulations may also modify certain statutory or contractual rights of trade union representatives to time off for trade union duties or activities.
Whilst we await further detail of the scope and application of these provisions, those institutions to whom they apply are likely to need to carefully review their existing arrangements for facility time and consider the extent to which those arrangements represent value for money.
Greater staffing options for employers
Outside of the Bill but intrinsically linked to the Government proposals is the proposal that employers will no longer be prevented from engaging agency workers to maintain operations during a strike. Such a step has been unlawful for over a decade as a result of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, limiting staffing options and operational continuity during strike action.
The consultation seeks feedback on the potential impact of the removal of this provision. The Government aims to issue a response by the end of October 2015. This issue is controversial but is nonetheless one to which the Government appears committed. In practice, of course, employers of specialist workers cannot easily replace them with agency staff.
Whilst the proposed changes are significant and politically charged, many recent strikes would have met the proposed new threshold and so would have remained lawful under the proposed law. A number of trade unions have been vociferous opponents of the proposals with some, including Unison, indicating that they will challenge the reforms in the courts (for example, alleging a restriction on their right to strike contrary to the European Convention on Human Rights) and may even flout the rules and conduct unlawful strikes. It remains to be seen whether they do so. The outcome of the consultations appears unlikely to deter the Government from the key aspects of reform to which it has committed.
It is possible that the changes will encourage more union members to vote and, therefore, if there is a “yes” vote for industrial action then the union’s mandate will be stronger.
Unions will in future be more careful about defining the constituency for the ballot – they may be tempted to hold more localised ballots or to ballot only members working in key grades.
Other consequences might include unions using more “soft power” in the form of organising protests or corporate campaigns, to apply pressure on an employer to achieve their objectives, activities which are increasingly prevalent following the development of social media. However, the Government’s consultation suggests that it is intent on controlling more closely the use of these tactics, although it is unclear whether new measures would be limited to protests linked to industrial disputes.
Alternatively, workers might in future express their grievances in other ways, such as collectively refusing to undertake additional duties or, for example, volunteer for overtime, with the resultant detrimental impact on service delivery.
2. Withholding pay for striking workers
Employers may withhold pay from striking workers relying on the principle that they are not entitled to be paid if they are not ready and willing to perform the work they are employed to do.
In a recent case (Hartley and others v King Edward VI College), the Court of Appeal considered how much can be lawfully withheld for a day's strike by salaried employees. Here, the college withheld 1/260 of their annual salary because teachers' working days were Monday to Friday (i.e. 5 x 52 weeks = 260 working days); the claimants argued the correct amount was 1/365 (i.e. their salary accrued equally day by day). Their contracts of employment did not expressly address the amount to be withheld. The Court upheld 1/260, based on an interpretation of the contractual arrangements. The case also provided a long-awaited opportunity for a higher court to consider how the law, which dates from 1870, applies to today’s workplaces. The Court’s reasoning does not deliver unequivocal guidance in that the construction of a particular contract of employment will remain a factor in deciding the amount of pay to be withheld for a day’s strike. However, it does makes it easier for employers to base the amount on the total working days per year, not on equal daily accrual (1/365).