Trade unions, members and industrial action

Support of Ballot (Schedule 3)

In Force - 18 September 2000 
Industrial action will not be treated as having the support of a ballot if a member is induced to take part in the action, but has not been given the opportunity to vote in the ballot (and the union ought reasonably to have known that the member would be induced to take part).

Small accidental failures to comply with the requirements to ballot all members who are to take part in the action, and the requirements relating to postal voting arrangements, will not invalidate the ballot. This is provided that no "missed" members are actually called upon to take part in the action. (Similar provisions apply in respect of small accidental failures to comply with the requirements relating to the balloting of seamen).

Notices relating to industrial action

In Force - 18 September 2000 
The obligation on unions to provide employers with the names of individuals to be balloted or called upon to take part in industrial action is removed. A union will now be obliged to provide "such information in the union's possession as would help the employer to make plans and bring information to the attention of those" employees to be balloted. 
This expressly does not require the union to provide names of individuals, but does require information on the number, category or workplace of the employees concerned where this information is in the union's possession. There have already been two Court of Appeal cases on this new requirement

Previously, where a union ended authorisation for industrial action, and then subsequently re-authorised the action, it had to give a fresh notice of industrial action to relevant employers before the action could resume. That requirement is now disapplied where the union and the employer agree that industrial action will cease to be authorised from a certain date, but that it will again be re-authorised with effect from a date set out in the agreement, provided that the action is actually re-authorised.

Voting Paper

There has been some confusion after the decision of the Court of Appeal in Connex South Eastern Ltd v RMT, where an overtime ban was found to amount to strike action, rather than action short of strike. That decision is reversed: an overtime ban and a call-out ban will constitute action short of strike.

As a result of changes to the law relating to the dismissal of striking workers (see below), the following additional words must be inserted on the voting paper after the warning about being in breach of contract: "However, if you are dismissed for taking part in a strike or other industrial action which is called officially, and is otherwise legal, the dismissal will be unfair it is takes place fewer than eight weeks after you started taking part in the action, and depending on the circumstances, may be unfair if it takes place later".

Industrial action ballots: period of effectiveness

In Force - 18 September 2000 
The Conservative legislation required unions to commence industrial action within four weeks of the close of ballot for the union to retain protection against legal action by the employer. It will now be possible for this period to be extended to eight weeks by agreement between the union and the employer. In a multi-employer dispute, each employer would be treated separately.

Separate workplace ballots

In Force - 18 September 2000 
It has often been all but impossible to untangle the complex requirements of separate workplace ballots. This has led to enormous confusion for unions and employers alike. The circumstances in which separate workplace ballots are required are to be simplified.

As previously, the separate workplace ballot provisions do not apply if the union reasonably believes that all members entitled to vote have the same workplace.

"Workplace" is defined as either the premises at or from which the worker works (in the case of a worker working at or from a single set of premises); or the premises with which the worker's employment has the closest connection.

There are three circumstances in which separate workplace ballots will not be required, even if workers entitled to vote in the ballot do not all have a common workplace.

First, no separate workplace ballots are required where there is at least one member of the union who is "affected" by the dispute at the workplace of each member entitled to vote.

Union members are "affected" by a dispute if:

• They are directly affected by decisions relating to terms and conditions or physical working conditions, to engagement or non-engagement or termination or suspension of employment or duties of employment, or to allocation of work or duties.
  
• They are directly affected by matters of discipline. or
  
• Their membership is in dispute.
  
• They are officials of the union who would use any negotiating machinery which is the subject of the dispute.

Secondly, a single ballot may be held in relation to a dispute where the workers have one or a number of common occupations, regardless of whether or not they are employed by one or a number of employers.

Thirdly, a single ballot may be held where entitlement to vote is restricted to all the members of the union employed by a particular employer (or employers).

Industrial action and unfair dismissal (Section 16 and Schedule 5)

In Force - 24 April 2000 
Workers who are dismissed whilst taking part in lawful industrial action are currently denied legal redress unless not all of them are dismissed or there is selective re-engagement within three months.

Under the new law, it is automatically unfair to dismiss an employee for taking part in industrial action in certain circumstances. This protection will apply: Where the dismissal takes place within the first eight weeks of the action.

• Where the employee stopped taking action within eight weeks (even if the dismissal took place after eight weeks). 
• Where the employer has not taken reasonable procedural steps for the purpose of resolving the dispute.
  
  

In deciding whether an employer has taken reasonable procedural steps to resolve the dispute the following will be taken into account:

• Whether the employer or a union has complied with any collective or other agreement.
• Whether the employer or a union has offered or agreed to take part in negotiations after the start of the action. 
• Whether the employer or a union has unreasonably refused, after the start of the action, a request for conciliation.
• Whether the employer or a union, after the start of the action, has unreasonably refused a request that mediation be used to resolve the dispute. No account is to be taken of the merits of the dispute.
  
  

Where a worker is unfairly dismissed under the new provisions, no order for reinstatement or re-engagement can be made until after all employees have ceased taking part in lawful industrial action relating to the dispute.

These rights only apply where the industrial action is lawful and protected by a ballot which complies with the existing legislation. Where action is repudiated by the union, the protection for the workers is lost if they carry on with the action for more than one further day.