Every October the outdoor pursuits store in my hometown advertises ‘Now is the Winter of our Discount Tents’. No doubt many other stores across the country do the same, adapting the line from Shakespeare’s play Richard III.

The Winter of Discontent was also the term given to the winter of 1978/79, during which the UK experienced widespread industrial action in both the private and public sector.

Scroll forward to 2022 and the approaching winter has a similar feel. Unions across a number of sectors are increasingly turning to industrial action, digging in for what could be a protracted period of strikes and disruption.

In this first of a series of blogs, we analyse the trends we are seeing in collective employee activism, including the surge in balloting and strike action, the rise in requests for recognition in an increasingly wide variety of sectors and how employers are responding to these trends.

Strike action – a growing trend

Since the start of 2022 there has been a slow and steady increase in headlines relating to unions. Those headlines relate largely to the industrial action that has pervaded a number of public sector services, including transport, postal and most recently nursing. In the main these strikes relate to ongoing disputes about pay.

But companies in the private sector are also seeing an increase in balloting for industrial action.  Those employers with existing and often long-standing union relationships will be familiar with the complexities of existing industrial relations law and the need to balance an understanding of those laws with the nuance and skills needed to manage and maintain good working relationships with their unions. Balancing the two can often (but not always) minimise the risk of matters ending up in industrial action.

The Truss response to strike action

The trend towards increased strike action was addressed head on by the new Conservative leadership in September, with new Prime Minister Liz Truss having signalled very clearly in the first few days of taking up her new position that striking union members should ‘get back to work’. It appears that the Truss Government is likely to introduce further legislation which may increase the complexity of existing industrial relations law. Measures that have been floated or announced include:

  • Increasing the notice period that unions must give before industrial action can start – which would make it easier for employers to implement contingency plans to reduce the impact of any such action;
  • Introducing a minimum service provision for some sectors – a pledge that was made in the Conservative 2019 manifesto – to minimise disruption;
  • Raising the ballot thresholds from 40% to 50% for industrial action to be able to go ahead;
  • Bringing in a mandatory cooling off period, which would mean that unions could not strike multiple times in a specific time period after a successful ballot; and
  • Requiring unions to put pay offers from employers to a vote of members to ensure that strikes can only be called once negotiations have genuinely broken down.

Assuming further measures may be introduced in short order, they would be the latest in a series of moves that have been introduced by the Conservative Government to change the current law on strike action. The key recent changes that have already been introduced are as follows:

The change to the restriction on using agency workers: previously it was unlawful for businesses to supply temporary agency workers to fill duties by employees who were taking part in strikes. That restriction was revoked in July 2022 by the Conduct of Employment Agencies and Employment Businesses Amendment Regulations 2022 (the Regulations). Employers may now use agency workers during industrial action. That move arguably weakens the impact of strike action for those industries where agency workers can readily be used during industrial action.

The increase in the possible damages award for unlawful industrial action: the requirements for industrial action to be lawful are complex but must be followed so that any resulting industrial action is protected. A failure to comply with those requirements can result in industrial action being unlawful which has consequences both for participating employees and for the union. Employees who take part in industrial action that is not protected are then not immune from any action taken by the employer, including being dismissed. Unlawful industrial action can also give rise to liability for the union calling the industrial action. The potential exposure to damages awards was increased by the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (the Order), which also came into force in July 2022 and which materially increases the maximum damages award that a union can be ordered to pay to an employer in the event that industrial action is found to be unlawful.

The unions’ response

Last month, in response to these changes to the law, both the Trade Unions Congress (TUC) and Unison, the UK’s largest union, initiated judicial review proceedings. One of the key arguments they make is that the Regulations and the Order do not take account of Article 11 of the European Convention on Human Rights, which includes protections in relation to the right to freedom of association – a line of argument that will inevitably be controversial against the backdrop of Brexit, and particularly considering the recent indications from the Government that they may favour a ‘bonfire’ of all remaining EU regulations through the Retained EU Law (Revocation and Reform) Bill.

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 now starting to see that change.  For employers in those sectors who for the first time are experiencing requests for union recognition, notably the tech sector, the current backdrop of industrial action headlines is unlikely to encourage those employers to look favourably on such requests.

In our next blog we will examine what’s causing the increase in requests for union recognition and the issues to be aware of in dealing with such requests.