'Major reform' of UK trade union rules passes into law

Christopher Mordue of Pinsent Masons said that the Conservative government had had to make "several substantial concessions and u-turns" in order to implement its manifesto commitments to trade union reform, including dropping plans to require unions to give advance warning of leverage campaigns and protests. Although the changes were designed to make industrial action tougher, in practice the new requirements would not be impossible hurdles for unions to clear, he said.

"Unions will put more energy into mobilising members to vote and may ballot a more focused group of members, or conduct ballots over a longer time period, to maximise their chances of getting the turnout they will need," he said.

"Employers need to be alert to the risk that the new ballot thresholds could force or encourage unions to increase their use of leverage campaigns. These are non-traditional forms of industrial action, such as demonstrations, protests and social media campaigns; often targeting key customers, suppliers and shareholders as well as targeting senior managers personally. These campaigns fall outside the legislation on industrial action, can be run without any ballot or notice to the employer and can be very disruptive. Unions are likely to make increasing use of these alongside or instead of traditional strike action," he said.

Mordue also pointed out that the government had not yet announced whether and how it would proceed with scrapping the ban on employers' use of agency workers to provide cover for striking staff, which he said was an "important loose end which would help employers to mitigate the impact of industrial action".

"The government has yet to respond to consultation on this proposal, but employers will hope that it will proceed now that the horse trading on the Act itself is over," he said.

The new rules are currently expected to come into force in October, subject to secondary legislation. They include a new 50% voting turnout requirement, and an additional threshold requiring 40% support for industrial action among non-ancillary staff regardless of turnout in relation to "important public services", including health, education, transport, border security and fire staff. A six-month time limit on any mandate for strike action will also be introduced, although this may be extended to nine months with the agreement of the employer.

"In practice, those not willing to strike are more likely to abstain rather than vote against the action," said Christopher Mordue. "That means that unions will need to work hard to ensure that 50% of those balloted vote in favour."

"The new time limits will only legitimise action taken within six, or nine if the period is extended by agreement with the employer, months of the ballot - after this, the union will either need to re-ballot or call off the action. The risk for employers is that the union will escalate its action much earlier than has traditionally been the case, to force a resolution of the dispute before its mandate expires. The danger is that once the ballot thresholds are cleared, disputes become more intense and bitterly-fought and therefore more disruptive and damaging to employment relations in the longer term," he said.

Further reforms to be introduced will require clearer descriptions of the nature of the dispute and the planned industrial action on the ballot paper, as well as double the amount of notice of industrial action that must be provided to the employer from one week to two weeks. The government has, however, committed to an "independent review" of the possibility of future electronic balloting, which would make the process simpler for unions. The Act will also introduce more transparency over trade union subscriptions, although union members will not be required to 'opt in' to paying subscriptions as originally proposed.

"Even if the new ballot thresholds do not take away the threat of strike action altogether, other changes in the Act will improve the ability of employers to make contingency plans to reduce the impact of any action and keep the business running," said employment law expert Sarah Ashberry of Pinsent Masons. "Unions will need to give two weeks' notice before starting industrial action, doubling the current seven-day notice period and giving employers more time to respond. Ballot papers will need to contain a 'reasonably detailed' description of the action which the union plans to take - this gives employers a better 'heads up' of likely union tactics, although we can expect unions to develop and use generic wording which keeps their options pretty open."

"The use of e-voting for industrial action ballots has been on the union 'wish list' for some time, as it is likely to increase turnout and be less expensive. It would also ensure that unions had up to date mobile numbers and email accounts, and help them mobilise their members to take part in action and protests. However, there is no commitment to actually introduce e-voting and it remains to be seen how far this idea will be taken and with what level of enthusiasm by the government," she said.