Strike while the iron is hot

Posted on 7 October 2015

Strike while the iron is hot

You may have some strong opinions about strike action, particularly if you are a parent scrambling to organise childcare during a teachers' strike, or if you live in London and commute to work by public transport. Threatened strike actions by junior doctors could affect us all. Whether you take the view that militant unions are disproportionately powerful and need to be stopped or you sympathise with the workers, the future of industrial relations is about to change.  The government has recently finished consulting on changes to trade union law which will fundamentally alter the way in which the unions operate. 

The proposed reforms - which are likely to go through - are wide ranging.  Here are the highlights:


Strikes in the future must have been approved by a majority following a ballot with a minimum turnout of 50% of union members.  Strikes in public service industries (such as healthcare, schools, firefighters, transport (including air travel), nuclear decommissioning and border security) will in addition need the approval of at least 40% of those eligible to vote.  In other words, if the union membership in a workforce providing a public service is 1000, and 500 people vote, 400 of them must vote in favour of strike action.  This affects both private and public sector employers.

Temp cover

Currently, it is a criminal offence to supply temps to a business in order to provide cover for striking workers.  This provision is to be repealed, paving the way for employers to source temporary staff to limit the impact of strike action on their business.

Ballot information

Unions will be required to ensure that sufficient detail is provided on the ballot sheet to explain why industrial action is being called, and (where applicable) to set out what action short of strike is being envisaged. This is designed to ensure that those voting understand the principles behind the strike.  The level of detail required, however, is not yet clear and may require case law to resolve.


At present, unions are required to inform employers seven days in advance of any strike action.  This notification requirement is being increased to fourteen days, partly to allow employers time to make alternative arrangements.

Expiry dates

Ballots will now have a shelf life.  Rather than covering the entire period of a dispute, any action must take place within four months of the ballot, so ballots will need to be re-run during long running disputes to ensure that the union continues to have the support of the workforce.


Picketing is going to be restricted to ensure that workers who wish to continue to work are not intimidated by their striking colleagues.  The union must identify a picketing supervisor, responsible for the behaviour of the pickets.  The picketing supervisor will need to wear some sort of identifying mark, such as an armband or a badge, and the police must be given information about the picket.  Any unlawful or intimidatory picketing will become a criminal offence.

Political donations

Unions will no longer be able automatically to make donations to political parties (i.e. to Labour) from members' subscriptions without the express consent of that member.  Labour is concerned that this requirement to 'opt in' to making political donations could seriously affect its funding in the future.  Furthermore, if unions no longer have significant financial influence over the Labour party, this may have a profound effect on the fundamental relationship between Labour and the unions.


The government has announced that it no longer considers it appropriate for public sector employees to have their subscriptions to trade unions paid via payroll.  The administrative cost of doing so is, apparently, too great.  As a result, union members will need to set up payments by direct debit.

Facility Time and Cost

There is also a proposal that public bodies will need to publish information relating to the amount of facility time (that is, time spent on union activities) and the percentage of the wage bill being spent on facility time.  This could lead in turn to limits being imposed on facility time and the cost of facility time, which may spell the end of the employed trade union official in certain workplaces.

In summary, the government is seeking to reduce the power of trade unions. This does not appear to be in response to any specific issue, but the timing of the tube strikes during the summer has bolstered the government's case (from a London centric perspective).  Notwithstanding the high profile strikes in transport, education and, possibly, medicine. The number of days lost to strike action is comparatively at a very low point.  This chart, based on data collated by the Office for National Statistics, shows the number of working days lost to industrial action since 1891:

The general strike of 1926 figures highly, but the current figures are very low compared to the strikes of the 1980s.  Looking in more detail at the years since 1979, it is evident that there were more strikes last year than in 2013, but the figures remain comparatively low:

Interestingly, the number of strikes in the private sector has exceeded the number in the public sector for the last three years, a change to the general trend, even though the scale of the public sector strikes has meant that the majority of working days lost were in the public sector.  Last year, pay was the main cause of strikes.  This has been fairly standard over the last ten years, although redundancy caused the most strikes in 2009 and 2010.

Trade union membership has been steadily declining since the 1980s.  In 1995, there were around 3.4 million union members in the private sector - now there are around 2.6 million, accounting for just 14.4% of the workforce.  These figures are higher in the public sector, with union membership standing at around 55.4% of workers (around 3.8 million).  However, the number of public sector workers are falling as the state shrinks and austerity bites. Consequently, the unions are likely, given the current figures, to see their membership continue to fall.

Why, therefore, has the government decided to take the action against the unions?  They have claimed that the unions are wielding too much power.  However, according to a parliamentary research paper in 2011, the public's perception of the unions' power suggests that only 35% of people agree (as against 80% of people in 1979).  They have also argued that the way in which the unions operate is outdated, however the government remains unwilling to allow for workplace ballots or e-voting, which would appear to be a more modern way of conducting labour relations.

It would appear that the decision to move against the unions is ideological.  While the crusade against red tape is a cornerstone of the government's drive to free up the market, the unions are facing more red tape than ever before.  This aspect of the market remains distinctly un-free, in keeping with the other OECD countries with low regulation on employers.  The UK has some of the lowest regulation relating to employing workers, with only the USA and Canada being less regulated.  The USA and Canada both have stringent anti strike laws.  In the USA, government employees and the majority of public sector workers are banned from striking.  Meanwhile, in Canada, 'back to work' legislation allows government (both federal and provincial) to order an end to strike action in certain circumstances, and to order binding arbitration on the parties to the dispute, or to impose new contractual terms on employees.

Perhaps there is a fear in Whitehall that as individual employment rights become harder to obtain (for instance, the minimum service requirement for a claim of unfair dismissal has now been raised to  two years) or harder to enforce (with the introduction of fees in the Employment Tribunal leading to a significant drop in the numbers of claims), there is a risk that workers will seek protection elsewhere, thereby strengthening the power of the unions.

Whether the measures will work remains to be seen.  Commentators have pointed out that reforms such as the introduction of an expiry date for ballots may precipitate rather than avoid strike action, as the parties will have less time to negotiate the issues.  The use of agency workers to break strikes is also problematic.  The Recruitment and Employment Confederation, a body representing the recruitment industry, has said "we are not convinced that putting agencies and temporary workers into the middle of difficult industrial relations situations is a good idea for workers, agencies or their clients".  Principle 7 of the Code of Conduct of The European Confederation of Private Employment Services (Eurociett) states: "Private employment agencies shall not make workers available to a user company to replace workers of that company who are legally on strike, except where such a provision is prohibited by national or local law".  REC is a member of Eurociett; corporate members of Eurociett include Adecco, Kelly Services, Manpower, and Randstad, some of the largest temp agencies in the country. Accordingly, the widespread provision of agency staff may not be possible in practice.

Unsurprisingly, the unions have not welcomed the proposed reforms, with the PCS describing the proposals as 'vindictive'.  There have been indications that if they are not allowed to strike lawfully, unions will take action outside the law.  In July, Unison voted to remove the words 'so far as may be lawful' from its rules governing how it may carry out industrial action.  If the unions do start ignoring the new reforms, they will be on a collision course with the government and it is hard to see how they will survive.

The starting point when looking at industrial action is that employees are in breach of contract by refusing to work, and unions face tortious liability for interfering with contracts.  The law provides for a defence, providing the union and the workers comply with technical requirements relating to lawful strike action.   If the government narrows those requirements, workers will be easier to dismiss and the unions will be more exposed to significant financial liability, which means that any protest is likely to be met with heavy penalties.  It seems that this government is ready for the battle and will use the courts to drain the unions' resources.

Of course, private employers may decide that it is too costly to try to injunct a proposed strike, or take action against staff or the union, and there are alternatives to strike action which are harder to legislate against.  Disgruntled workforces are likely to produce higher levels of grievances and sickness absence, and will be less willing to co-operate if the employer needs a 'favour', such as more voluntary overtime or flexibility with regard to a contractual change.  Furthermore, if a business gets to the point of facing a striking workforce, relying on new statutory provisions to prevent the strike will not resolve the underlying issues which have led to discontent.  Employers will need to address these issues if they want to maintain any sort of employee relations with their workforce, irrespective of the current state of the law.

It is also worth noting that even under the new regime, the recent transport strikes would have gone ahead.  On one of the Aslef ballots, there was an 80% turnout, and 97% people voted in favour of the strike.

The new reforms are likely to polarise opinion even more than the strikes have done.  They may even galvanise some workers into greater union involvement.  If so, the government will have reversed a trend that could otherwise have led to the natural demise of the unions as a significant force in industrial relations.  It is possible, however, that the unions will not survive long enough to reap the benefit of greater support.

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