Mark L Thomas’s welcome article on the Trade Union Act (March SR) highlights the impact of new balloting thresholds. As he argues, these are likely to affect certain types of strikes more than others.
But Mark does not mention that all official strikes are affected by longer notice requirements — 14 days — before such strikes are lawful. And a ballot result ceases to have indefinite validity, being limited to only six months in most cases. The latter encourages employers to spin out any talks that take place to settle a strike. Also the ballot paper now has to “indicate the period or periods within which the industrial action…is expected to take place”.
These extra restrictions will make it easier for activists to argue for “frontloading” any discontinuous action or even favouring indefinite action rather than a pattern of one- or two-day strikes, for example.
Mark writes about possible trade union defiance of the law but this is unlikely to happen if a ballot fails to meet the new thresholds. If action is called in these circumstances, employers will be granted injunctions to stop it and unions will face heavy fines if they disobey. Unofficial strikes are the most likely way forward in that event, but Mark is wrong to suggest that such action is illegal as he does with the CWU strikes of 2003.
Unofficial strikers inevitably flirt with legal sanctions — dismissal without recourse to employment tribunals, and possible injunctions against “ringleaders” — but they are not taking part in illegal action.