LRD Booklets September 2017

Taking industrial action - a legal guide



[pages 5-6]

When the government decided to enact the Trade Union Act 2016, described by the TUC as “the most serious attack on the rights of trade unions and their members in a generation”, there was no burning crisis in UK industrial relations. On the contrary, figures from the Office for National Statistics showed strikes remaining at a historically low level, even after taking into account recent high-profile examples such as the junior doctors’ strike and the industrial action on the Southern Rail network. In 2015, the number of lost working days, at 170,000, was the second lowest annual total since records began in 1891.

At the same time, wages have stagnated since 2008, described by Bank of England governor Mark Carney as “the first lost decade since the 1860s”. Data from the Organisation for Economic Cooperation and Development (OECD) released shortly before the June 2017 snap election shows that in 2018, UK workers will face the largest real wage fall of any advanced economy. According to TUC research, average real wages remain lower than they were pre-crisis, down £1,200 a year on 2008. And in June 2017, unsecured personal borrowing – such as personal loans and credit card debt but excluding student loans – topped £200 billion for the first time, as people struggle to get by on diminishing wages.

There is, of course, a direct link between the UK’s highly restrictive industrial action laws, in place since the 1980s, and this prolonged decline in real wages, because these laws, dressed up by successive governments as the promotion of “industrial democracy”, are designed to impede unions’ ability to bargain effectively for decent terms and conditions. As has been stated many times, without an effective right to strike, collective bargaining is reduced to “collective begging”.

As well as being highly restrictive, UK strike laws are out of date, designed for a world in which workers are in direct, continuous, full-time employment with a single employer. The law’s failure to keep pace with the break-up of the UK workplace, including outsourcing, rising low-paid self-employment (false and genuine), the pernicious spread of intermediaries such as umbrella companies and the growth of the gig economy, is no accident.

The laws are also out of date because of the government’s insistence on postal balloting – a mechanism known to depress turnout – although a government review into electronic balloting is to report by the end of 2017 (see box on page 39).

It is more important than ever that union reps and negotiators understand the restrictions posed by the law and how to navigate them, but also to discover what is possible.

This booklet sets out the current industrial action laws, including the changes introduced by the Trade Union Act 2016 (TUA 16), using straightforward language with case law examples where relevant.

The booklet also looks at what additional types of action unions are taking to meet their objectives in helping their members improve their pay and conditions when employers fail to listen.

This booklet does not contain legal advice and must not be relied on as such. In addition, every union has its own strict internal procedures that must always be followed when deciding whether to call industrial action.