Strike! Trend in employees turning to union membership and industrial action | Moorepay
October 27, 2022

Strike! Trend in employees turning to union membership and industrial action

Trend in employees turning to union membership and industrial action

How concerned should employers be about an apparent trend in staff turning to union membership and industrial action as a solution to myriad woes both in and out of the workplace?

As the cost-of-living crisis endures, and with winter on the horizon, news headlines talking about trade union recognition and industrial action are more commonplace. Though the trend isn’t confined to public sector employers – where nurses are joining transport and postal workers in escalating their respective disputes – similar headlines often reference private sector employers such as Amazon.

Employers familiar with the complexities of trade union related laws will recognise the need to balance knowledge with nuance and other skills necessary to nurture and maintain a good working relationship with union members and representatives. Striking an appropriate balance, though often fraught with difficultly, will be imperative in mitigating the risk of disputes escalating and ending in increased trade union activity or industrial action.

The trend stirs similar emotions like those which brought about recent cases on ‘worker status’, such as that involving Uber. There, drivers became entitled to certain statutory benefits and the outcome was seen as a boon for workers in precarious employment and a successful blow to the so called ‘gig economy’. But is this just talk or something more pervading? Like Uber, which resulted in a reset in how employers must approach worker status, should employers begin to strategize?

What’s going on?

Legislation seeking to curb the ability of trade unions to take industrial action was passed in 2022 which has but amplified discussion. In July 2022, The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022, SI 2022/852, repealed legislation which made it a criminal offence for an employment business to knowingly (including having reasonable grounds for knowing) provide temporary workers to an employer to perform the duties of workers taking part in an official strike or other official industrial action.

Employers can now use agency workers during industrial action thereby weakening the impact of strike action for those industries where such workers can readily be used. Also in July 2022, The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 passed increasing the maximum damages a union could be required to pay to an employer should industrial action taken be deemed unlawful. Both changes made headlines and prompted the TUC and UNISON, one of the country’s largest unions, to seek a judicial review.

Anything else?

The trend in staff turning to union membership and industrial action was tackled by Rt Hon Liz Truss, in the first days of her premiership, insinuating how union members on strike were a nuisance and signalling that they should ‘get back to work’. Thereafter, various proposals were floated or announced including:

  1. Introducing a minimum service provision in certain sectors to minimise disruption to the public;
  2. Increasing the level of notice which unions must afford employers before commencing industrial action – which should help employers in implementing contingency plans to reduce the impact of that action;
  3. Raising ballot thresholds from 40% to 50% for industrial action to proceed;
  4. Making it a requirement of unions to put an employer’s pay offer to a vote of all members to ensure strikes can only proceed once negotiations have genuinely broken down; and
  5. Bringing in a mandatory cooling off period, which would mean that unions can’t strike several times in a specific time after a successful ballot.

With the Prime Minister’s decision to step down and uncertainty as to the appointment for her successor, doubts are cast on the government’s ability to see the above proposals through. However, assuming such proposals could be introduced in short order, they would be the latest in a series of topical moves introduced to curb the ability of trade unions to take industrial action. Even without further changes, the subject will, most likely, remain notable as the TUC and UNISON will likely pursue their case – challenging the above legislation – relying on the European Convention on Human Rights, notably freedom of association. Following another government announcement concerning a ‘bonfire’ of EU rules and regulations, when set against the backdrop of Brexit, it is likely that the right to take industrial action will remain buzzworthy, even before the winter truly sets in.

What can employers do?

Employers should revise and reconsider their approach to the question of union membership and industrial action. Even if a union isn’t recognised and a request for recognition has not been received, it is advisable to cultivate and maintain a good working relationship with workers who might be union members and any representative of a union that approaches them in relation to a dispute.

Amidst global uncertainty, budgetary plans in tatters and a government in disarray, the cost-of-living crisis shows little or no sign of easing. More strikes are likely as we head into winter and potentially from an ever-broader cross section of sectors. Even sectors whose staff might hitherto have not expressed any interest in collective representation are showing interest. Take the example of the Royal Society of Arts. Engaged in a bitter dispute with the Independent Workers of Great Britain (IWGB), the former home to radicals including Karl Marx and Nelson Mandela now find itself accused of hypocrisy.

The charity had been approached by IWGB on three separate occasions for voluntary recognition allowing representatives to negotiate pay and conditions on behalf of its workers. The Royal Society of Arts have repeatedly refused, their stance making national news outlets at a significant reputational cost. Headlines aside, they’re now embroiled not only in action by IWGB to seek compulsory recognition but also an individual dispute with an employee who argues that her dismissal was because of her support for membership and recognition of a union.
In a febrile environment both socially and economically, advice and guidance regarding union membership and industrial action will be key. Whilst employers might be tempted to look away and ignore any approach made by workers or representatives talking about trade union involvement, doing so could be to their detriment.

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About the author

Michael Farry

Mick has 10 years' experience in providing employment law advice and support in a consultancy setting, both on-site and remotely. His experience extends to handling complex redundancies and TUPE transfers. Mick enjoys working closely and in partnership with corporate and SME clients across a wide range of industries. Mick qualified as a solicitor in 2018 following a two year training contract with employment law as its primary focus. During that time, Mick attained invaluable experience representing clients engaged in contentious employment law disputes and health and safety prosecutions. At Moorepay, Mick provides employment law advice to clients and works closely with the Employment Law Advice Line supporting the department’s continuing professional development.

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