Over the last few months we have seen an unusually high degree of strike action taken by workers across various sectors and industries.  Postal workers, railway staff, criminal barristers, dockers and refuse collectors have all taken industrial action following disputes in relation to pay, job cuts and changes to terms and conditions of employment.  The cost of living crisis and squeeze on people’s finances has fuelled the crisis and pushed up union membership.

Reactions towards such action are typically polarised.  Some hail the right to strike as a fundamental civil liberty which provides an otherwise powerless majority with an essential collective voice.  Others attack it as akin to a hostage situation – paralysing the nation until the powers that be have no option but to bow to pressure.

Invariably (as with most things), the truth is somewhere in between.

Whatever your opinion, recent events have raised the question as to whether the current UK legislative framework in the UK is still fit for purpose and, if not, what (if anything) should be done about it.

The present government has made it clear that it does not believe the current legislation is working.  Over the summer, The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (Order) and the draft Conduct of Employment Agencies an Employment Businesses (Amendment) Regulations 2022 (Regulation) were laid before parliament. 

The Order sought to increase (by some 300%) the cap on the damages awards which may be made against a trade union where industrial action is found to be unlawful.  The maximum levels are now between £40,000 - £1,000,000 (depending on the number of members belonging to the union).   The cap was formerly £10,000 - £250,000.

The Regulations sought to revoke Regulation 7 of the Conduct of Employment Agencies and Employment Regulations 2003 which prevented agencies from supplying employers with temporary workers to cover those who are striking. 

Both pieces of legislation are now in force, although the unions have asked for, and been granted, a judicial review of the same.

The Government's plans

Over recent months, Liz Truss has confirmed that the government plans to go even further than this.  She has announced her intention to legislate for minimum service levels on critical national infrastructure.  We can expect further details to emerge shortly.  She has indicated that she will raise the ballot thresholds from 40 – 50%, and will extend the minimum notice period for strike action from two to four weeks.  She also proposes to implement a cooling off period, in order to prevent unions from striking as many times as they like within a six month period after a ballot.  Finally, she plans to review the tax treatment of strike pay, increasing the cost to workers of participating in strike action by preventing unions from making tax free payments to their striking members. 

Some commentators have argued that through these measures, the government is trying to make industrial action illegal.   Others, however, doubt that they will have any significant impact - describing the proposals instead as ideological rather than practical.

Agency workers

Take, for instance, the use of agency workers. Whilst it may be possible to use them in low-skilled jobs, most unionised sectors comprise a highly skilled workforce - train drivers, teachers, criminal barristers etc.  These are skills that cannot be sourced easily or quickly.  Few agencies are likely to have sufficiently trained workers on their books to supply to businesses at short notice.  However, even if they did, would they particularly want to? 

Many agencies are already struggling to backfill positions. There are thousands of vacancies.  Why would agency staff want to be placed at the heart of an industrial dispute, crossing picket lines, when they can easily find another role in a less hostile environment elsewhere?  It makes little business sense from the agencies’ point of view.

Furthermore, although changing the ballot thresholds may make it harder for employees to strike in smaller workplaces, most unions do not hold ballots unless they are confident they will get the numbers they need.  This is evident from recent ballots, which have had a very good turnout (and far beyond the thresholds required).

The possible consequences of government interference

There are possible unintended consequences of the Prime Minister’s proposals.  For instance, whilst extending the notice requirements for strike action will, on the one hand, allow employers more time to put contingency plans in place, on the other hand it also means that the industrial action could escalate more quickly - and, potentially, be far more disruptive than it otherwise might have been - for maximum impact. Likewise, introducing a cooling off period between strike action could result in more all-out, or longer periods of, strike action than might have otherwise been the case.

Yet, even though the government and the unions may not agree on how legislation needs to be changed there is, at least, some consensus that changes do need to be made. 

In particular, unions are adamant that the statutory requirement for ballots to be submitted by post, impedes their members’ ability to take action.  Workers are less likely to complete a paper form and send it back in the post than they are to fill out a form online.  However, although provision was made for electronic balloting in the Trade Union Act 2016, this has not yet been rolled out.

Similarly, different balloting thresholds for workers across the same industry sector (e.g. teaching assistants and teachers) can make industrial action unnecessarily complicated and difficult to navigate.

Far from enabling agreement and social partnership, the legislation can also at times, serve as an obstacle to it.  Employers feel their hands are tied.  They might wish to given their workers a pay increase - but cannot afford to pay what the unions want.  They cannot go directly to their workers with a pay offer for fear of falling foul of s.145(b) Trade Union and Labour Relations Consolidation Act 1992, which prohibits employers from inducing a worker, who is a member of a recognised trade union, to bypass the collective bargaining agreement, if the sole or main purpose is to achieve a ‘prohibited result’.  In such circumstances neither the employer nor the employee wins, and trade unions are depicted as the villains of the piece standing in the way of effective collaboration.  In his mini-‘budget’ last week, the Chancellor indicated that the government would seek to address this by introducing legislation requiring unions to put pay offers to a member vote.  Such a step is to ensure strikes can only be called once negotiations have genuinely broken down.  However, no further details on timing or the proposed legislation have been given.

Is more industrial action coming?

Unfortunately, with a recession looming and inflation continuing to rise, more and more workers are likely to turn to trade unions for the protection afforded by collective bargaining.   This is their right – and it is a right that is legitimately deserving of protection in law. 

Nevertheless, it is clear that the law is no longer working for anyone.  The changes proposed by the government and by the unions simply tinker around the edges.  They address the symptoms rather than the issues.  However, the issues can only be identified and addressed if all stakeholders have a seat at the legislative table.  Until that happens, the future of industrial relations looks set to remain a problematic one.