Draft regulations and a revised code of practice on industrial action ballots and notice to employers have been published.

The Facts

The Trade Union Act 2016 will bring in a new 50% threshold for voter turnout, with an additional 40% support threshold which will apply for important public services. "Important public services" are limited to health services, education of those aged under 17, fire services, transport services, decommissioning of nuclear installations and management of radioactive waste and spent fuel, and border security. Draft regulations have now been published, giving more detail on what constitutes "important public services". The regulations must be approved by Parliament. If so, they will come into force on 1 March 2017 or, if Parliament has not approved them by then, 21 days after approval.

The Act also introduces new requirements for information that must be included in the ballot papers, information that must be given to union members, the employer and the Certification Officer about the result of the ballot, and new notice requirements in advance of the start of industrial action. If unions do not comply with the statutory procedural requirements, the employer will have grounds to seek an injunction to prevent the action going ahead and/or to seek damages. A revised "Code of Practice: Industrial action ballots and notice to employers" has been published, which provides guidance to unions and employers on the statutory balloting and notification requirements. The provisions of the Code must be taken into account in proceedings where a court considers them to be relevant. This draft code has been laid before Parliament, and (subject to approval by both Houses) may come into force from mid-January, on a date to be decided.

What does this mean for employers

Regulation of industrial action is rather topical at the moment. All the widely reported strikes of the last few months were supported by substantial majority votes in favour of them.

"Important public services" are defined very narrowly in the various draft regulations. For example, in health they exclude any services not provided in a hospital environment and the vast majority of elective activity within hospitals. This is likely to cause debates and disputes about which employees are/are not engaged in "important public services" subject to the 40% threshold which is obviously unwelcome.

The revised Code of Practice gives some further guidance on what will be expected of picketing supervisors and the trade unions which appoint them.

Most importantly, we are still waiting to hear from the government when the key elements of the Act will come into force. We will update you when it does.

Code of Practice: Industrial action ballots and notice to employers