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To be able to strike or not to strike, is that the correct question?

15 October 2010 #Employment

Last week it seemed everyone had an opinion on the current law on strikes in the wake of feared industrial action by public sector workers and an autumn-winter of discontent in response to the Government`s spending cuts.  According to the Daily Telegraph and official figures, the number of public sector working days lost to disputes has already shot up in the 12 months to July due to walkouts such as the Civil Service strike in March and the Royal Mail action last year.  A forthcoming opportunity to see how public sector workers will react to the cuts will take place on 20 October.  The Comprehensive Spending Review (CSR) is due to be announced then.  This is the Government`s four year public spending plans and will include a sharp rise in pension contributions for nurses, teachers and other public sector staff.  The BBC staff have also planned a strike that would hit the corporation`s coverage of the CSR.   There is a fear that widespread unrest could jeopardise Britain`s fragile economic recovery.

The CBI, UK`s leading business group, gave its opinion in a report, Keeping the wheels turning: modernising the legal framework of industrial relations, which suggested that the threshold for strike action to go ahead legally, should be raised to at least 40% of balloted members voting in favour, as well as a majority of employees in the balloted workplace actually voting.  Meanwhile, the Mayor of London, Boris Johnson, faced with the headache of another tube strike, proposed that at least 50% turnout to vote should be required.  Currently, strikes can go ahead provided a simple majority of those voting support it, irrespective of the turnout to vote.  Thus, strike action can be triggered by only a small fraction of the total workforce.  As expected, unions were outraged at the proposals. Tony Woodley, Unite`s joint leader claimed that they were "not designed to improve industrial relations but instead to deny workers any voice in their working lives".  Acas`s chief conciliator, Peter Harwood, then waded into the debate by also disagreeing with the proposals and instead warned that a change in strike legislation would only "inflame the situation" and lead to workers taking unofficial action, so called ‘wildcat` strikes.

The CBI believes its proposals would help ensure that strikes remain a last resort.  It considers the law needs updating to reflect the fact that 85% of private sector employees are not members of a union and that most employers engage directly with staff or their representatives to bring about changes in the workplace.  They say that public attitudes towards unwelcome disruption have hardened following a series of disputes in which employers have turned to the courts to obtain injunctions to prevent staff going on strike (British Airways, Network Rail and Royal Mail have all been successful in obtaining injunctions this year) and there is now a legitimate expectation that services will continue even in the face of industrial disputes.

To enable firms to keep trading through strikes, the CBI proposes that companies should be able to recruit agency staff to provide cover for striking workers.  Currently, firms can only recruit temps direct, not via an agency.  The CBI says that many businesses do not have adequate systems in place to recruit hundreds of temps quickly and would prefer to use big agencies.  It also want an increase in the notice period required for industrial action increased from its current 7 days to 14 days, limits to what aspects of disputes each ballot should cover and a crackdown on which union members are eligible to vote.

However, according to Acas and some employment experts, changing the current laws on strikes is not the correct approach.  The focus should be on preventing industrial disputes in the first place and looking at the underlying issue.  Duncan Brown of the Institute for Employment Studies said "It`s a sticking plaster but employers must work at building employee relations".

According to Acas`s Chairman, Ed Sweeney, echoing Mr Harwood, there was a danger, in changing the law, of unintended consequences.  There was a risk of unofficial strikes, like those last year at oil refineries.  The government should learn from how the private sector handled the recession to head off strikes and reduce public sector job losses.

So what can we learn from the private sector?

Mr Sweeney said that the public sector could moderate the 600,000 job losses forecast by the Office for Budget Responsibility if it adopted shorter working hours and other measures that helped the private sector get through the recession with fewer redundancies than in previous downturns.  Look at concessionary bargaining, says Mr Sweeney, "There was short-time working, term-time working, a whole host of things."

Acas is eager to host talks between the public sector employers and unions to avert disputes.  It is possible to strike a deal, but it needs consultation.

Also, if public service employers are hoping to rely on injunctions to prevent trade unions taking strike action, they should think again.  Unions will learn from these cases to make sure that they are tighter as to how they ballot their members.  Furthermore, public service employers would be faced with a backlash from employees and the general public who would consider that the government was trying to undermine them.  They must maintain the engagement of their workforce.

As Mr Sweeney`s says, "Everybody knows there needs to be change.  It`s the volume of the change and the speed of it".

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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