From 1 March 2017 the landscape of industrial action in the UK will change, as the main provisions of the Trade Union Act 2016 (the TU Act) come into force. Stemming from a government manifesto commitment, the changes are designed to prevent unions taking strike action without a proper mandate. The main changes coming into force include:

Ballot thresholds for industrial action: For industrial action to be lawful at least 50% of all eligible union members must have voted in the ballot (the 50% Turn Out). Of the 50% Turn Out a simple majority must have voted in favour of the industrial action. Pre-March 2017 all that was required was for a simple majority of those who voted to vote in favour. The net effect of this is that, for a bargaining unit of 1000 members, under the TU Act a minimum of 251 members would need to vote in favour of action. Pre March 2017, with no minimum turn out, in the most extreme case, industrial action would be lawful with 2 votes in favour (with a turn out of 3).

Ballot thresholds for “important public services”: In ballots concerning workers in “important public services” not only is there a 50% Turn Out requirement, 40% of those eligible to vote must vote in favour AND a simple majority of the 50% Turn Out must vote in favour of industrial action. Taking the same 1000 member bargaining unit as above, a minimum of 400 members would have to vote in favour of the industrial action for it to proceed lawfully.A series of regulations set out what constitutes an “important public service” under the following broad headings: Health, education of those under 17 years of age, fire, transport, border security.Only those providing the actual service are covered by these thresholds (as opposed to ancillary workers). For fire, transport and border security those providing such services in both the private and public sector are covered but private sector workers in education and healthcare are not (unless providing publicly funded healthcare). Government guidance on the “important public services” regulations is available for those trying to get their heads round the thresholds and percentages: https://www.gov.uk/government/publications/important-public-services-regulations-2017-guidance-on-the-regulations

Voting papers: For those not familiar with the pre-March 2017 law on industrial action it may seem strange that when balloting members, unions were not required to provide any information on what the ballot was about. The only requirement was to ask members if they would like to take part in industrial action or action short of industrial action, which could lead to uncertainty as to what exactly members were voting on.

For ballots opened from 1 March 2017, the ballot paper must:

  • Include a summary of the matter in issue in the dispute to which the proposed industrial action relates;
  • Where it contains a question about taking part in industrial action short of a strike, specify the types of proposed action (either in the question itself or elsewhere on the voting paper); and
  • Indicate the period or periods within which the industrial action is expected to take place.

An employer is also entitled to receive a sample of the voting paper no later than the third day before the opening day of the ballot.

Announcing the result of a ballot: As soon as reasonably practicable after holding an industrial action ballot, the union must take steps to inform those entitled to vote and their employer of:

  • The number of individuals entitled to vote in the ballot; and
  • Whether or not the 50% Turn Out requirement has been met.

These new requirements are in addition to the existing requirement to inform the employer of:

  • Number of votes cast in the ballot
  • Number of individuals answering "Yes" to the required question (or each question)
  • Number of individuals answering "No" to the required question (or each question)
  • Number of spoiled or otherwise returned ballot papers.

Notice of intended action: 14 days’ notice is now required of intended industrial action (or 7 days where agreed between the employer and the union). This increase from the previous 7 day notice requirement is intended to give employers more time to prepare and arrange contingency plans.

Time limit on starting industrial action: Pre-March industrial action had to start within 4 weeks of a successful ballot (or 8 weeks if agreed) but could be suspended and restarted without a further ballot with no fixed end point. This could result in industrial action running on without obvious mandate for, in some cases, years. From 1 March 2017 there will instead be a 6 month limit on a strike mandate (or a 9 month limit if agreed with the employer), after which another ballot will be required to proceed lawfully with industrial action. The intention behind this change is to prevent action taking place based on ballots which may no longer accurately represent current workers’ views.

Union Supervision of Picketing: The TU Act imposes extra requirements where picketing has been organised by a trade union or a union has encouraged its members to take part in picketing. This includes appointing someone to supervise the picket and ensuring that person wears something to identify themselves.

As has always been the case where industrial action is concerned, what is often a highly emotive issue in reality becomes very technical when consigned to the statute book. What is important for employers to take away at this stage is that there are some key headline changes coming into effect from 1 March 2017 which will give them additional armoury if seeking to challenge unions on strikes and other industrial action either at negotiation stage or through the courts.

What remains to be seen is the extent to which unions react to the new legislation by focussing their efforts on galvanising the workforce so that any industrial action they do pursue clearly has the required mandates, meaning that the action is in fact more entrenched than it might have been previously. Some of the most high profile industrial action of the last few years, including the junior doctors’ strike and Southern Rail strikes, already bypassed the new thresholds significantly. Although the Government has carried out its own review of the human rights implications of the TU Act in the BEIS European Convention on Human Rights Memorandum there also remains the possibility of unions challenging the legality of the legislation from a human rights perspective.

Meanwhile the Welsh Assembly is seeking to exclude Wales from what it sees as the controversial changes and the Government has not excluded the possibility of making further changes to the current prohibition of hiring agency staff to cover strike action. So while it seems like all change now there is likely to be more to come.