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Industrial action: should UK employers prepare for a winter of discontent?

  • United Kingdom
  • Employment law
  • Labor law and trade union issues

16-08-2022

 

The Bank of England has forecast that real household post-tax income will continue to fall sharply, driving wage disputes in a tight labour market. With inflation expected to go over 13% and the UK to enter a recession, some commentators are talking of industrial action reminiscent of the 1970s.

For those employers affected (directly or indirectly), the prospect of escalating, large-scale and potentially coordinated, industrial action is a serious concern which we consider below.

Back to the 1970s … or the 1920s?

Industrial action has significantly reduced over recent decades. The number of working days lost have been averaging in the low hundreds of thousands, compared to millions (1979 and 1984) or over 100 million (1926). This context is important when set against talk of an approaching winter of discontent.

Will there be a general strike?

There have been media reports of the threat of a general strike. This would entail the TUC and individual trade unions working together, with the support of their members.

However, such a high level of collective organisation and support has not been seen since the last general strike nearly a century ago in 1926.

Even if a general strike was organised, its impact would be constrained by lower union membership levels. In 2021 the proportion of UK employees who were trade union members fell to 23% or 6 million employees, the lowest on record, with membership heavily skewed towards the public sector. This contrasts with 13 million at their height in 1979.

Legislation regulating industrial action has also changed, making a general strike less likely. For example, a trade union risks organising unlawful action (which, as a result of recent changes to the law, exposes it to potential compensation claims of up to £1m) if the strike is a form of political protest and not about a genuine trade dispute with an employer.

Therefore, trade unions will be wary of being seen to organise strikes which are in response to government action, such as its economic policies or its potential proposal to further regulate the right to strike (see below).

How should employers prepare? Contingency planning and the law

Despite the low prospect of a general strike and declining membership levels, employers face the prospect of multiple worker disputes this autumn which will affect them, even if their own staff are not involved.

Employers not party to a dispute, but facing disruption, should plan for working practices to adapt. For example, hybrid and flexible working have softened the impact of transport strikes for some employers.

Where an employer is dealing with an industrial dispute, speed is of the essence. Firstly, because it has an immediate impact on the employer’s business. Secondly, because any legal action is likely to take the form of challenging the ballot and notification process and possibly seeking injunctions, and the courts will not grant injunctions unless they are sought without delay.

In broad terms, industrial action must be taken ‘in contemplation or furtherance of a trade dispute’ and a number of specific statutory requirements complied with. In particular, these include conducting a ballot and notifying the employer in accordance with detailed rules and a prohibition on secondary action and unlawful picketing.

It may be possible to stop industrial action which is in breach of these requirements by a court injunction. A successful injunction will typically only delay the action, but will provide the employer with more time to make contingency plans and to negotiate.

Where an injunction is not a possibility there are other legal options which some employers will consider, including taking advice on reducing the pay of strikers and hiring agency workers to backfill their duties. These measures are not without risk, including a potential escalation of the dispute, but the ban on using agency workers was lifted in July 2022. Before contemplating any action against striking employees, specific advice should be sought as special rules and protections apply.

Where disputes threaten to spill over into harassment, a breach of the peace, trespass and more, there are potential criminal offences or civil claims, potentially also involving the police. Where picketing is the source of tension, a code of practice and legislation provide detailed rules on the rights of pickets and of others.

Ensuring that managers involved in the trade union relationship, and in responding to industrial disputes, have the necessary skills, support and knowledge will be a key issue.

Beware grey areas of the law

Industrial action law is complex. For example, identifying action short of a strike (ASOS), such as a work to rule, is a common difficulty in practice. Whether it is lawful will turn on the contract of employment and the circumstances. ASOS can be attractive to trade unions as its disruptive affect can be sustained over a longer period and limits pay reduction for employees.

Industrial action law is also continuing to evolve, reflecting the impact of the European Convention of Human Rights on how it is interpreted. A recent court decision has significantly changed whether and how an employer may take action against those striking, other than deducting pay for work not done during the strike, such as withdrawing benefits. An upcoming case appeal has the potential to develop the law on blacklisting, reflecting union arguments that compiling a list of strikers, to facilitate the withdrawal of the benefits, amounts to a prohibited blacklist.

The impact of a new Prime Minister

Campaign promises from the two candidates seeking to be the next Prime Minister have included changes to industrial action law. For example, Liz Truss has committed to: introducing minimum service levels during strikes affecting critical national infrastructure; raising the strike ballot voting threshold; increasing the minimum notice period for strikes to four weeks; limiting strike opportunities in the six months after a ballot; and ending tax-free payments from trade unions on strike days.

Some union leaders have promised large-scale resistance in response, with the very real possibility of industrial relations tensions rising further and of unions contemplating alternative ways to apply pressure (instead of strikes). In addition, any changes to the law would be expected to be challenged in the courts by the unions.