We're still in the midst of a wave of strikes, driven by the cost of living crisis and real term reduction in wages. Teachers are the latest group to announce strikes in England and Wales, with the first taking place on 1 February.
Resolving strikes isn't easy - particularly for public sector employers whose budgets are fixed. Employers find it difficult to understand the complex law that provides a framework for discussions to take place and determine if strike action is lawful. And, many are confused about the government's plans which are designed to reduce the impact of strikes.
With this in mind, we have gone back to the basics and have set out the existing legal rules that apply and explained what may change.
Trade union recognition
Trade unions can be recognised for a range of purposes including:
- using the employer’s facilities, for example, for meetings, and/or
- providing its members representation at disciplinary and grievance hearings, and/or
- consultation on a collective basis, and/or
- negotiation, for example, on matters such as pay or working hours such that the employer cannot make a decision regarding these specific issues without agreement of the recognised union.
A written recognition agreement can help provide certainty to the employers and their recognised union/s in relation to the level of recognition they enjoy and the matters for which it is recognised. It is extremely common, though, for the recognition agreement to go missing, particularly in cases where there has been a longstanding relationship between the parties, there have been office moves, or there has been a merger.
In cases where neither party can find a copy of the recognition agreement, we recommend that you work together to agree a new one. This will help to avoid disputes in future regarding the level of recognition the union might have.
If a trade union is recognised for the purposes of negotiating contractual terms such as pay, you must consult and, if necessary, enter into the collective bargaining process with the union to try and reach agreement.
There are strict rules which limit what you can do and say if you recognise a union:
- s145A TULR(C)A, prohibits employers from making an offer to a worker for the sole or main purpose of inducing the worker to refrain from taking part in trade union activities or making use of union services. This protection is enjoyed by all workers, regardless of union membership, and
- s145B(1) TULR(C)A, prohibits employers from making an offer to their staff persuading a worker and at least two of his or her colleagues to forgo collective bargaining. This protection is enjoyed by those workers who are members of a recognised union.
If you recognise a union for collective bargaining purposes, s145B(1) TULR(C)A means that you can only lawfully approach staff to agree new terms and conditions of employment if you have followed and exhausted the collective bargaining procedure. Even if there is no clear procedure set out in the recognition agreement, you must make every attempt possible to reach an agreement with the union. You can't simply tell it that you are making a "final and last" offer to bring negotiations to a close if you've not exhausted the process. If the union doesn't accept that the process has been exhausted it will bring proceedings on behalf of its members and the tribunal will look at the whole context, how far you are to reaching agreement and any other relevant circumstances.
Breaching this can have significant costs for employers: the penalty for attempting to induce an employee to accept new terms and conditions outside of the collective bargaining process is £4,554 per employee, per breach. Employment tribunals cannot reduce this.
It's important to have a clear, well defined, recognition agreement in place which defines when the collective bargaining process will be taken to be exhausted - for example, giving prescribed timescales or the ability for a party to declare this.
If you are currently in dispute with a trade union, and you feel that negotiations have reached a stalemate, please take legal advice before you approach or communicate with staff direct.
Union notification requirements
If an employer and a union are not in agreement regarding an issue such as pay, the union may declare that the parties are in dispute. To apply pressure, it will usually then ballot its members to see if they support taking industrial action (most commonly, strike action).
Strike action is unlawful unless a union observes specific and detailed notice and information obligations including:
- Seven days prior to the opening of a ballot for strike action, a union should notify employers that they intend to hold a ballot, when the proposed ballot will open, and specific information regarding the employees balloted
- As soon as reasonably practicable after holding a ballot, a union must take steps to ensure that the employer is aware of (among other things) of the number of individuals that were entitled to vote in the ballot and the number of votes cast
- Once the union obtains the required support for strike action, they must provide the employer with at least 14 days’ notice of the strike action
Strike action will cease to have the support of a ballot six months from the date of the ballot opening. Any further industrial action will then need to be supported by a fresh, lawfully conducted, ballot.
A union’s failure to comply with the strict information and notification obligations may mean that any resulting strike action is not lawful. If you have concerns regarding the legality of a strike ballot or industrial action, please do get in touch.
Unions must demonstrate that the number of votes cast in a ballot is at least 50% of the members entitled to vote and that a majority voted in favour of the proposed action.
In addition, where the majority of union members who are entitled to vote are normally engaged in providing important public services, the ballot must also have the support of at least 40% of those members.
Employees who can take part in strike action
A trade union planning strike action must identify the group of employees impacted by the dispute (known as the bargaining unit). Whilst votes in a ballot for strike action are limited to members of the trade union who fall within the bargaining unit, anyone who is within the bargaining unit can take part in strike action if it has been lawfully called even if they are not a member of the union.
Employers can withhold the pay of employees who take part in strike action.
Minimising disruption caused by strikes
In December 2022, the UK recorded the highest number of working days lost to strikes for more than 10 years and, as many services ground to a halt, many clients have been asking if there is anything that they can do to relieve some of the pressure caused by planned strike action. There are a couple of points to note:
- Last year, new legislation came into force which allows employers to use agency workers to fill staffing gaps caused by industrial action. Prior to this, using agency workers to cover duties normally performance by a worker taking part in strike or other industrial action was unlawful. You can read our detailed overview of the impact of this change here
- The government has recently introduced the Strikes (Minimum Service Levels) Bill, which will require unions to take steps to ensure that certain members of staff do not take part in strike action in order to meet minimum service levels. The law, if passed, will apply to a wide range of sectors including education, transport, health, fire and rescue, nuclear and border security. You can read more about the proposed legislation here.
We can help
If your organisation needs help understanding the nature of its relationship with its union, is unsure of the next steps to take as part of the collective bargaining procedure or is facing industrial action as a result of an ongoing trade dispute, we can help. Please contact Charlotte Sloan, or Poppy Ford.
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Our fixed price employment law service
For a fixed fee, you can receive a copy of our template recognition agreement.
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