Strike law reforms mean unions pursuing 'winter of discontent' risk consequences, says expert

Out-Law Analysis | 26 Sep 2017 | 4:06 pm | 2 min. read

ANALYSIS: Changes to industrial relations law mean trade unions are facing a very different legal landscape from the 'winter of discontent' 40 years ago, despite recent threats of illegal strike action over public sector pay.

However, employers and any other business which believes it could be impacted by potential industrial action should take steps now to put in place a proper contingency plan, ensuring they are clear about what needs to happen should the unions follow through on their threats.

At the recent Trade Union Congress (TUC) annual conference, around 50 unions backed a motion calling for a campaign of co-ordinated industrial action unless the public sector pay cap is fully lifted and PCS, the largest civil service union, is already balloting members for strike action. Meanwhile, trade union leaders have said that they would consider supporting illegal strike action which does not meet the ballot thresholds set out in the 2016 Trade Union Act.

The threats came after the government announced that they would scrap the 1% public sector pay cap for police and prison officers and said that ministers would show "flexibility" over public sector pay for 2018/19. However, unions are pressing for all public sector workers to be given improved pay rises before the year end.

Unite general secretary Len McCluskey got the ball rolling when he said he would be prepared to break what he considers an "artificial threshold" which requires a ballot for industrial action to have a turnout of at least 50% of union members. He was closely followed by PCS chief Mark Serwotka and GMB general secretary Tim Roache, who expressed similar thoughts.

The threats inevitably led to various 'winter of discontent'-themed warnings being issued: a reference to the final months of 1978 and early 1979, when widespread strikes by public sector unions brought the UK to a standstill as it endured the coldest winter in 16 years.

Last year's changes to industrial relations law prevent a strike from being held unless it has the backing of a majority on a turnout of at least 50% of those eligible to vote in the ballot. In addition, in certain important public services, at least 40% of those entitled to vote must support the strike action. The unions claim this is "unjust" and are threatening to flout the law in protest that even after the 1% pay cap is lifted, wage increases are likely to remain below the level of inflation with the Unite leader stating: "If that means we are outside the law, then so be it".

Employers must also receive 14 days' notice of strike action, double the previous seven days; and the ballot result is only valid for six months whereas before it could be open-ended and run for months and years.

McCluskey is no stranger to political theatre, but while his declaration may appeal to some union members, it is likely to play less well with Unite's lawyers. The difficulty from a union's perspective is that, if it fails to follow the proper processes and obtain the required support, it loses its immunity from being sued for inducing a breach of contract.

A business which has a contract with the public sector and suffers interruption to trading due to an illegal strike could sue the union for losses of up to £250,000, or alternatively seek an interim interdict or an injunction to stop the strike. The union would have no protection from such an action, which could be taken by multiple businesses - and would ultimately be successful.

Against this backdrop, however, businesses that could be impacted by potential industrial action - whether legal or illegal - should still ensure that they have proper contingency plans in place.

Issues worth covering in such a plan include identifying all access points to the business premises and pinpointing where picketing may take place; establishing who owns the land surrounding the premises; and establishing good contacts with local police and media. Other factors worth considering are alternative arrangements for deliveries of the materials and goods needed for your business to operate normally, and how to maintain services if a proportion of your workforce is unavailable due to industrial action.

Stuart Neilson is an industrial relations expert at Pinsent Masons, the law firm behind