This article was updated on 24 May 2023.
From late 2022, the headlines have been dominated by a series of industrial disputes, with nurses and doctors, teachers and railway workers just a few of those who have taken collective action over their terms and conditions. As we have moved into spring, however, what is clear is that far from saying goodbye to a ‘winter of discontent’, the industrial unrest that has characterised the last few months is set to continue for some time to come.
Recent weeks have seen the latest round of teachers’ strikes causing school closures across the country, and the announcement of more railway strikes threatening to disrupt such high-profile events as the Eurovision Song Contest and the FA Cup final. Also in the headlines has been the recent nurses’ strike which, if nothing else, has offered a salutary reminder to unions of the need to be clear about their mandate for strike action. The Royal College of Nursing was forced to shorten action by a day as it fell outside the six-month period mandated for action in last year’s ballot. At the time of writing, a fresh round of strikes by junior doctors has just been announced.
It is not only the public sector that is affected by industrial unrest – this year has seen major private sector companies such as Amazon and Diageo hit by strike action. Trade union membership is on the rise, and workers are seeking union recognition in workplaces where it does not currently exist. Indeed, Amazon may be forced to recognise a union – the GMB – for the first time in its history.
The issue of trade union recognition has reached the Supreme Court, with the appeal in the case of Independent Workers Union of Great Britain v Central Arbitration Committee and another. The Court of Appeal had previously ruled that Deliveroo riders do not fall within the scope of trade union freedom rights under Article 11 of the European Convention on Human Rights as they are not employees of Deliveroo. The Supreme Court’s decision is awaited with interest.
Government attempts to place limits on the right to strike continue to be challenged. On 3 May, the High Court started hearing a judicial review brought by various trade unions challenging the lawfulness of the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. These regulations were introduced in July 2022, permitting employers to hire temporary workers to cover for striking staff.
Since 1976, it has been unlawful for employers to introduce or supply agency workers to replace staff who are taking part in a strike or industrial action. Unions are arguing that the regulations were brought in without the necessary consultation, because the government relied on a 2015 consultation – and that they also infringe trade union rights under Article 11.
If overturned, this will represent a huge setback for the government as it attempts to minimise the impact of industrial action, which will surely lead to taking the case to the Court of Appeal. The decision is expected in the coming weeks. It is understood that additional plans to restrict the right to strike, such as increasing ballot thresholds to make it more difficult for a union to secure a mandate for strike action, have been dropped.
Also under fire are the government’s plans to introduce minimum service levels (MSLs) in certain sectors, restricting a trade union’s protections when action is called in those sectors. The Strikes (Minimum Service Levels) Bill is currently making its way through Parliament, with the House of Lords having forced some key amendments to the draft legislation, such as favouring a consultation and the publishing of an impact assessment before it becomes law.
The Bill has returned to the House of Commons this week for its final stages, with MPs voting against all but one of the House of Lords’ amendments. A committee has been appointed to give the reasons to be assigned to the Lords for disagreeing with their amendments.
The Bill has been heavily criticised from a number of angles, most recently the TUC, which has published a joint statement from 121 politicians across 18 countries, criticising the limitations on workers’ rights posed by the Bill and calling for it to be scrapped. In the meantime, consultations on MSLs in the transport, ambulance services and fire and rescue sectors have closed this month. The government's response is awaited.
Although in certain sectors negotiations over terms and conditions seem to be bearing fruit, industrial disputes are still widespread. The cost of living crisis and difficult trading conditions mean it is likely that employers and workers could well be at loggerheads for some time to come. Maintaining an open and honest dialogue with workers and their representatives will be key to navigating these choppy waters, as will an understanding of what to do if you are faced with a request for union recognition, or with a ballot for industrial action.
Whether you are experienced in industrial relations issues, or facing the prospect of a unionised workforce and industrial action for the first time, Penningtons Manches Cooper’s specialist industrial relations group can help you to manage your industrial relations issues.