Focus on… A new era of industrial action?

The new rules provide that any strike ballot will only support industrial action if at least 50% of the employees voted and more than 50% of those who voted supported the industrial action. The recent ballot at the Post Office easily passed this threshold with a turn-out of 73.7% and, of those who voted, 89.1% favoured strike action.

In relation to important public services the threshold is higher. A strike ballot will only support industrial action if at least 50% of the employees voted and more than 40% of all employees supported the industrial action. The Post Office is not captured by the notion of important public services which focuses upon health, education, fire, transport and border security but the high threshold was achieved in this ballot nonetheless.

However, despite this initial test which tends to suggest that the new rules may have little impact it is still envisaged that large-scale industrial action will decline. In fact, many of the large-scale strikes that have taken place in recent years would not have passed the necessary voting thresholds.

The impact of a strike which is not supported by the appropriate ballot is that it is unlawful and can be stopped by seeking an injunction and the Union may be responsible for losses suffered by the employer. Len McCluskey as leader of UNITE has recently suggested that unions must be prepared to back their members and will do so in the face of the law indicting that doing so would be following in the footsteps of Nelson Mandela, Mahatma Gandhi and the suffragettes. On the face of it this might suggest that UNITE in particular is intending to support a range of illegal strikes. But the potential cost to the UNITE of acting in this manner would be very considerable and consequently mass illegal strike activity is unlikely.

The era of very long periods of strike action, similar to the 1980s miner’s strike, are long gone. They are just too difficult for the workforce to bear and support for the strike drifts away. The expectation is that there will be a similar move away from large-scale industrial action. Industrial action will become more focused and strategic: perhaps taking very important but small groups of employees out on strike (e.g. engineers) and focusing strike action on periods of time which are most damaging (cabin crew striking at Xmas or the underground drivers striking a cup final time).

Also it is expected that industrial action will be fought in different ways. Len McCluskey has said £36 million has been set aside to “support our members in struggle through a new leverage, hitting at employers all the way up and down the supply chain”. Len McCluskey goes on to say, “the hostile employer must face a campaign of escalation in which brains as well as brawn are deployed”. The focus is upon embarrassing all stakeholders in the business with whom the dispute exists so that they put pressure on the business to give way to the demands of the employees. This may involve targeting the business or the reputation of customers, banks, investors, customers of customers etc. This may involve media campaigns but is more likely to involve social media and campaigns of attack can be quickly and effectively managed with the creation of WhatsApp groups.

To try and break the stranglehold of some unions and break the support of employees for unions employers have recently been offering enhancements to agree pay or benefit packages outside of collective negotiation. But this approach was considered by the Employment Tribunal earlier this year in Dunkley –v- Kostal. The case is subject to appeal, but in that case the company made two ‘sweetener’ offers to the employees to entice them to agree terms. The offers were not accepted but each employee to whom the offers were made are potentially entitled to £3907 for each offer – so £7814.

How can I find out more?

For further information on the issues raised by this update, please contact Joe Thornhill or a member of the employment team.