First strike

The Unite union has laid down the gauntlet to a future Conservative government. Paul McFarlane examines the union’s reaction to Tory plans to limit further the ability to call on members to take part in industrial action.

Lawyers operating in the local government sector would do well to heed the warning from Unite, one of Britain’s biggest Unions, which has said that it is prepared to carry out illegal strikes if the Conservative government win the General Election.

This follows recent proposals by the Conservative Party to place further limits on trade unions’ ability to call on their members to take part in lawful industrial action. Len McCluskey, the leader of the Unite union, says he will not 'respect' anti-strike laws brought in by a majority Tory government and that the union is prepared to remove the words “so far as may be lawful” from its rule book, which could set the scene for an array of legal issues.

Currently, for a strike to be lawful, a union must ballot its members and gain a simple majority in favour from those who vote. However, the Conservatives have put forward proposals which include insisting that 50% of union members vote in ballots that approve industrial action. This proposal is seen by unions as undemocratic as many politicians (particularly local councillors, the Mayor of London etc) are elected on turnouts which are much less than 50%. None of the other major political parties, however, have indicated that they support this proposal.

If David Cameron stays at Number 10, the stage is set for a real battle between Unite and employers if Unite fails to get more than 50% turnouts when balloting for strike action. In those circumstances, if Unite called its members out to strike, an employer would be able to make an application for an injunction. Unite might try and resist such an application and argue that the new legislation breached the Human Rights Act (‘HRA’).

However, Unite might come unstuck as the Conservatives have also pledged to abolish the HRA – so Unite would not be able to run a HRA argument; and even if the HRA was not abolished it is by no means certain that such argument would be successful. Recently in RMT v United Kingdom (2014) the European Court of Human Rights was not prepared to uphold complaints made by the RMT that the requirements for pre strike notices and the law on ‘secondary action’ [industrial action against an employer that is not a party to the trade dispute] were unlawful.

Despite Unite threatening illegal strikes if the Conservatives are elected into power, they are likely to have an uphill battle in the courts challenging any further changes made to industrial relations law, but lawyers in the sector will have to watch it closely as it unfolds in case it ends in unlawful chaos in the workplace.

Paul McFarlane is a Partner in Weightmans LLP Employment & Pensions team.