Show notes
Our employment experts Ian Pace and Rebecca Cairney consider the implications of the Autumn Statement, and take a closer look at the growing amount of industrial action taking place and the proposed changes to law in that area.
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Transcript
Ian Pace: Hi there everybody and welcome to the Employment Insights Podcast. This is the second podcast in our series where we discuss hot topics in employment law and what they mean for you and your business. My name's Ian Pace, I'm a Partner in the employment team, based in Manchester. I'm joined again by my north west colleague, Rebecca Cairney, who's a Prinicipal Associate based in our Liverpool office. Hello, Rebecca.
Rebecca Cairney: Hi Ian. How are you doing?
Ian: Good, thanks. If you've missed it, we've also recently been on our sister podcast, our Weightmans Insurance Insights podcast, where we reviewed the evolving situation at Twitter and reports of a significant number of redundancies, particularly in the US, since Elon Musk's takeover.
Ian: In our last Employment Insights podcast, we mentioned the mini budget, which was coming up and the autumn economic statement and some of the issues between the two. And since then, on 17 November, the autumn statement was released.
Ian: Alongside that, there's been an increasing amount of industrial action featured in the news, with railways, postal workers, BT and now the NHS striking due to arguments over pay and terms and conditions. In this update, we'll consider both the autumn statement and what implications that has in the field of employment law and also discuss the seeming growing amount of industrial action and proposals to change the law in that area.
Ian: So then, Rebecca, starting with the autumn statement, was there much clarification for employers on proposals after the mini budget and the economic statement?
Rebecca Cairney: Well, not a great deal to be honest. In terms of EU law, there was nothing further to report here. So, the Bill to revoke EU law did receive a second reading in the Commons on 25 October and, throughout November, that has just been proceeding through the Commons Committee, so nothing further on that.
Rebecca: National Insurance: so we that the 1.25% increase was reversed on 6 November and so that will remain the same until at least 5 April 2023.
Rebecca: In regards to industrial action, we did talk a little bit about this on the last podcast but the Transport Strikes (Minimum Service Levels) Bill had its first reading in the House of Commons on 20 October and, if passed as law, it would mean that specified transport services — so rail, tube and bus — will not shut down completely when the unions do impose strikes.
Ian: Ok, so that's the Bill that's just been before the House of Commons. You mentioned just then about the rail strikes. What exactly has been happening with the rail strikes in the UK? We haven't been able to get away from that on the news.
Rebecca: It has been widely reported in the news and on social media that rail strikes have been causing havoc throughout the UK for much of autumn 2022 and, unfortunately, there's no end in sight as we approach the run up to Christmas, with more dates being announced. The rail companies say that critical changes to working practices are necessary to save money as they are recovering from the impact of Covid, with fewer people travelling than before the pandemic. However, the Rail, Maritime and Transport Union, or the RMT, is worried that this will mean job cuts for its members and so they have announced that its 40,000 members will walk out across eight days in December and January. And they will also be holding regional strikes across various dates in different areas of the UK in response to proposals on working practices.
Rebecca: It's also recently been reported that a pay offer has been rejected by the RMT, so those strike dates are looking likely to proceed over the Christmas period. They've also announced a rest day and overtime ban, which could cause further issues for transport companies who are largely reliant on employees working overtime and on their rest days.
Rebecca: So, at the moment, when strikes such as this take place, the vast majority of train travel is disrupted, with only about one in five trains actually running.
Ian: So, what will actually happen if the Bill is passed? What changes do you think we'll see?
Rebecca: Well, we reported in the last podcast that, at that point, it wasn't entirely clear as to whether the Bill was only due to cover transport or would cover other sectors when strikes were announced. It's now become apparent that the Bill is only set to cover transport, although there is nothing to say that something similar could not be introduced in other sectors in the future, especially with the recent worries and announcements with the NHS striking.
Rebecca: The Bill echoes similar laws that are already in place in countries such as France and Spain and essentially will ensure that specified transport services — so rail, tube and bus — will not shut down completely when strikes take place. It's ultimately a balance the right to strike with ensuring that commuters can get to work, people can access healthcare or make other vital journeys on strike days.
Rebecca: Rather than actually imposing minimum levels of service, the Bill will actually allow employers and unions to first negotiate and try to reach agreement on what those minimum levels should look like. And, if agreement can't be reached, it's only then that the Central Arbitration Committee will step in to set what those minimum levels should look like.
Rebecca: A couple of other points. So, there's additional requirements for notice periods for striking in a transport sector and the employer will identify those who are required to work during the strike action in order to ensure those minimum levels.
Ian: Ok. And I know it's really difficult, because it is such a complex area of law, but can you briefly summarise what the current law on industrial action is?
Rebecca: Yeah absolutely. So, as you say, it's very complex but the bulk of it is set out in the Trade Union and Labour Relations Consolidation Act 1992, otherwise know as TULRA. In order to not be liable for strike action, there are very, very strict rules that the unions must abide by.
Rebecca: So, to begin with, they must first endorse or authorise the strike action being taken. The action must be taken in contemplation of furtherance of a trade dispute — so there must be an issue that is in dispute between the members and the employer. And it must not relate to one of the expressly prohibited reasons. So for example, to try and enforce trade union membership.
Rebecca: We've then got some strict rules about the ballot themselves. so, there must be a notice of a ballot, which is at least seven days before the ballot takes place and a copy of the voting paper must be given to the employer at least three days prior to the ballot.
Rebecca: There's strict rules on arrangements for the ballot and all of those who are entitled to vote must be allowed to vote. So, there is allowance for some minor breaches, but for the most part, anybody who is entitled to vote must be given the opportunity to vote.
Rebecca: There must be a turnout of at least 50% and there must be a simple majority in support of the strike action, which is of at least 50% of those who have responded. There are some different rules for important public services but the general rule is the simple majority.
Rebecca: That's then followed by an announcement of the result and an independent body will then issue a report on the conduct of the ballot, which the relevant employers can access.
Rebecca: Now, in terms of the industrial action itself, there must be notice of that given at least 14 days before it's due to take place and it can be valid for up to six months from the date of the ballot. IN some circumstances, it can be extended to nine months, if done by agreement but usually looking at six months from the date of the ballot.
Rebecca: But the recent changes to the law have also allowed employers to use agency workers to cover work on strike days and have increased (fourfold actually) the maximum fines that can be levied at unions for any unlawful strike action.
Rebecca: So a very, very complicated set of rules but hopefully that sums it up.
Ian: Yes, it's very procedural isn't it? You've explained what the current situation is. What are the further changes proposed to those rules? Are there any further changes proposed?
Rebecca: Yeah absolutely. So, we've obviously already gone through he minimum service levels for the transport sectors but the other proposals include raising ballot thresholds, so that 50% of union members would have to vote in favour of a strike. So this is much more onerous than a 50% turnout and 50% of that turnout voting in favour. It will make it much more difficult for strike action to take place if that's introduced.
Rebecca: The other proposal is unions being required to take all pay offers to a member vote, so that strike action only occurs when negotiations have genuinely broken down.
Rebecca: Any finally, increasing the notice period for industrial action from two weeks to four weeks in order to give employers more time to prepare.
Ian: Ok, that's really helpful. So, it's clear that there are some potentially big changes on the cards and questions on whether that's with a view to restricting the art of industrial action that can take place and the disruption that arises from it. That's been really helpful, thanks, Rebecca.
Ian: This week, we saw an announcement from BT that there's been an agreement of a pay rise of up to 16%, that being agreed with the union. That's one success story and that's actually prevented any further strikes. The proposal in that case is that those earning less than £50,000 a year will receive a £1,500 pay rise next year from 1 January.
Ian: That deal will be put to a vote but could see the end to any strike action at BT. So that's the good news. The bad news is that further strike dates have been announced over the Christmas period for rail workers and postal workers and the NHS could see up to 100,000 nursing staff walk out on 15 and 20 December in a dispute over pay.
Ian: And there's also a risk that ambulance workers, who await their own ballot result on strike action, have stated that they may coordinate their own strike action with that of other NHS workers in order to create the biggest impact across the whole of the NHS.
Ian: So despite the potentially good news from BT, it seems that we're really very much heading towards a winter of discontent unfortunately across the UK as the cost of living increases and working conditions and pay are at the forefront of employer and employee disputes.
Ian: So, that's something we'll keep a close eye on and as developments do come forward with the Bill, and as that progresses through law then I'm sure we'll provide another podcast on that.
Ian: But in the meantime, the next podcast will be looking at flexible working. The government has been consulting about proposals to offer flexible working as a day one right and the government has very recently published its response in relation that consultation. So that's something that we'll be covering in next week's podcast. I look forward to joining you then. Thanks very much for coming, Rebecca. Really helpful today and I look forward to you joining us next week.
Rebecca: Thank you, Ian.