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Industrial action update

Junior doctors, the London Underground, Southern Rail and more. Industrial action and its consequences dominated the headlines in 2016 and look set to…

Junior doctors, the London Underground, Southern Rail and more. Industrial action and its consequences dominated the headlines in 2016 and look set to stir up debate well into this year too.

We round up the latest legal developments surrounding the ‘right to strike’ and explain how your organisation might be affected.

Southern Rail: new legal arguments raised in injunction proceedings

The disputes affecting Southern Rail escalated recently when the drivers’ union ASLEF held a 48-hour strike between 12-14 December 2016. Dogged by industrial unrest since April, and already beset with strikes by its conductors (represented by the RMT union), the rail operator went to the High Court prior to this strike, to try to get an injunction to stop it.

Southern raised a new legal argument for the first time in the case, maintaining that the industrial action was unlawful because of the EU law on freedom of movement. The employer’s legal team tried to apply the European Court of Justice decision in the case International Transport Workers' Federation v Viking Line, claiming that the industrial action would deter or hinder the exercise of free movement rights, was disproportionate, and was contrary to EU Directive rights granting free movement of services and freedom of establishment. The case hinged on the company being partly owned by a French organisation.

However, the High Court rejected these arguments and held it was necessary for there to be some cross-border element in the dispute for the EU provisions to apply; it was not enough that the rail operator was partly foreign owned. To succeed, the injunction application would need to have been an attempt to stop ASLEF from discriminating against the employer as a foreign company. As it was, if it had been granted, the company would have gained a positive advantage that would not otherwise be available to it. The company had been established in the UK for twenty years and had always been susceptible to industrial action.

The rail operator appealed but this was dismissed by the Court of Appeal. From a legal perspective, unless the company seeks leave to appeal the latest decision to the Supreme Court, it has no other legal weapons available to it to stop these strikes. Transport Secretary Chris Grayling was recently asked by BBC Radio 4’s Today programme whether the government would introduce legislation to curb such strikes in the future. He responded that there were “a lot of things” the government would consider in the wake of these strikes.

Trade Union Act 2016 – where are we up to?

However, the government has already made changes to the law to make it more difficult for trade unions to call members out on strike.

The Trade Union Act 2016 requires unions not only to obtain a majority voting in favour of a strike out of those who voted (this was already a requirement to make a strike lawful), but additionally:

  • to have at least a 50 per cent turnout of those entitled to vote in the ballot
  • to obtain 40 per cent voting ‘yes’ to strike action out of those entitled to vote in a ballot where the dispute is in an ‘important public service’.

The Trade Union Act 2016 became law on 4 May 2016 but the majority of its provisions have not yet been brought into force. The outstanding provisions look set to come into force this Spring.

However, the Act remains controversial and unpopular in many quarters. Indeed, the Welsh Government has introduced a Bill that aims to reverse the impact of the Act. If the Bill becomes law, key aspects of the Trade Union Act 2016 would not have effect in Wales. The Welsh Government has expressed concern that the Act will lead to “confrontational relationships between employers and workers” and risks “undermining rather than supporting public services and the economy”.

Important Public Services: Regulations and guidance

To accompany the Trade Union Act, the Government has also recently published a series of draft Regulations defining what ‘important public services’ will mean. The Regulations will come into force on 1 March 2017 (or 21 days after they are made, whichever is later). It is anticipated that the Trade Union Act itself will come into force at or around the same time.

The Trade Union Act 2016 set out the six areas that would be considered ‘important public services’ – health, fire, border security, education, transport and nuclear decommissioning. The new draft Regulations give further detail on five of these areas (as yet, no guidance has been provided relating to nuclear decommissioning). Each area is dealt with by separate draft Regulations.

The Fire Regulations are fairly uncontroversial but confirm that call handlers dispatching firefighters will be regarded as performing an ‘important public service’, alongside the firefighters themselves.

The Health Regulations unsurprisingly provide that specific emergency health services are within the definition, including ambulances, accident and emergency and intensive care. Notably, a proposal to include broader care, diagnosis and treatment services provided by hospitals appears to have been scrapped. This arguably ‘tightens up’ the Regulations and makes them more workable in practice.

Crucially, given the recent Southern Rail controversy, the Transport Regulations provide that all passenger railway services (including the London Underground) will fall within the definition of important public services. However, only London local bus services will be included, sending out the strange message to bus operators and commuters in the rest of the UK that a service is more likely to be ‘important’ if it is London-centric.

The Education Regulations will cover all schools (other than fee paying schools), 16-19 Academies and further education institutions providing education to children of compulsory school age.

These last two sets of Regulations have been the most controversial, as they arguably impose the higher threshold on areas where a strike would simply cause inconvenience rather than create real risk or a danger to life.

Separately, the Government has produced guidance intended to help unions and employers apply the 40% threshold in practice. The guidance is non-statutory (so is not required to be taken into account by a Court or Tribunal) but gives examples of workers who might be included in each sector covered by the new Regulations. The guidance suggests that unions will be given very broad discretion to determine whether the 40% threshold applies. If the union ‘reasonably believes’ that the majority of members balloted are not carrying out an important public service (even if that belief is erroneous), it will not have to meet this more stringent target and will have a defence to legal challenge.

If you are unsure whether all or part of your workforce will be covered by the ‘important public services’ rules please do not hesitate to get in touch and we will be happy to advise you.

Further restrictions on the right to strike?

The Government’s comments in the wake of the Southern Rail strikes have led to speculation that additional restrictions on the ability to strike may be planned, above and beyond the provisions already set out in the Trade Union Act.

However, some commentators have argued that any additional hurdles for rail sector unions (or indeed unions in other sectors) may be in breach of the UK’s obligations under the Human Rights Act 1998 (specifically the right to freedom of assembly). If the government placed further restrictions on these unions, for example a blanket ban on strikes in the rail sector, this could be challenged in the courts.

The Southern Rail disputes show that, while the law is a useful tool for employers embroiled in a union dispute, it is not the solution. Provided a union jumps over the legal hurdles placed before it when calling a strike, there is little that employers or the Government can do to stop it. While the Trade Union Act will make it more difficult for unions to call strikes in the future, it is difficult to see what more restrictions the government can place on unions without infringing their human rights.

Paul McFarlane (paul.mcfarlane@weightmans.com) is a Partner in the Employment, Pensions and Immigration Team based in London. He is also chair of the Employment Lawyers Association legislative and policy committee, which commented on the Trade Union Act 2016 as it progressed through Parliament.


If you have any questions please contact Paul or speak to your usual Weightmans advisor.

Part of this article first appeared in People Management on 19 December 2016. Read the piece online here.

Government guidance on the Important Public Services Regulations 2017 can be found online here.