Following the Emergency Budget announced yesterday, Unions have criticised it as unfair and divisive. The the pay freeze and job cuts will almost certainly lead to a rash of strikes in local government, the education system, Whitehall and the NHS. Marc Meryon, Partner and Industrial Relations Specialist at leading London law firm Bircham Dyson Bell answers some of the key questions surrounding potential Industrial Action
Q How serious could this get? Could there be a General Strike as seen in other countries?
A In theory yes; the unions can aggregate their strike ballots across different employers and if the overall result is in favour of strike action then the workers in all the affected employers can walk out even if the workers for one of those employers voted against strike action. However, this carries a risk as a small defect could then derail the entire ballot.
Q How are the unions likely to react?
A We have already seen numerous threats of action to oppose cuts. The unions will probably wait until the likely impact of the cuts on their members is known later in the year – or they may go on the offensive now and demand guarantees, failing which they will ballot. Much also depends on how those cuts are applied; cuts in jobs will hit the unions hard, as they will want to maintain membership levels – however their members may be less likely to support action to protest against job cuts compared to a reduction in their terms and conditions.
Q Can employers take away final salary pensions?
A Ultimately yes, provided proper consultation is undertaken, even if they are contractual. However, this would be a prolonged and painful process which would take months to resolve and may entail mass dismissals and re-employment on new terms. Union members are likely to fight hard to preserve these benefits.
Q So are the cuts likely to lead to another winter of discontent?
A Industrial action and protest will increase but it is unlikely to be on the same scale as 1979, despite the severity of the cuts, as (1) many services have been privatised and have already undergone cuts; and (2) the public will have little sympathy for workers who they perceive are trying to retain privileges which private sector workers have long since lost – job security and final salary pensions.
Q How soon can we expect strikes to take place?
A Much depends on whether (1) the unions wait for detailed proposals on how the cuts will be applied and (2) whether they decide to co-ordinate their response or to act alone. If they decide to co-ordinate then it may take longer to organise, perhaps until after the conference season. It normally takes at least one month from the announcement of a ballot for strikes to happen.
Q Isn't this only a problem for the public sector?
A No, as although government cuts will have most effect on the public sector, their impact will be directly felt by many private sector companies which will have to make their own cuts.
Q What can employers do to stop strikes?
A Despite the Court of Appeal ruling in BA, the law on strike ballots is largely unchanged and so mistakes by the union in the balloting process will still entitle the employer to injunct a strike. In any event employers can apply sanctions against strikers, such as removing discretionary benefits. However, ultimately employers can only deal with this by reaching a deal or toughing out any strikes.
Q Are deals to deliver the cuts likely?
A Much depends on whether the government can persuade the public that the proposed cuts are fair and necessary. If it can do so then it will be more difficult for any one group to make a case for resisting changes; to do so would look like special pleading.
Q Is there a risk of wildcat action?
A Yes, it is possible that workers will spontaneously walk out in protest, especially if they feel that their union is not likely to support them. However, participants in wildcat action risk immediate dismissal if their union does not support the wildcat action, which it will be reluctant to do as wildcat action is not lawful.
Q What about go-slows and working to rule?
A Normally these tactics would be a breach of the worker's contract and so would need a ballot to be lawful. However, simply withdrawing co-operation may be legal without a ballot and so workers could do this immediately without a ballot.
Q Are there alternatives to strikes?
A Yes. Workers can immediately refuse to do anything which they are not contractually obliged to do, such as overtime or extra duties. If they want to take action which would breach their contracts their union must first organise a ballot. Breaches of contract could include refusing to do one part of their duties, or to use one item of equipment.
Q What can employers do about lawful strikes?
A Employers can still take action against the strikers, such as removing discretionary benefits, or disciplining them. The employer cannot claim damages from the union, but it could take action against the union, such as removing facilities or withdrawing privileges from the union's representatives.
Q Can strikes take place in non-unionised workplaces?
A Only unions can organise lawful strikes and so without a union the workers cannot lawfully go on strike. However, it is not necessary for a union to be recognised by an employer for it to organise a strike.
Q What are the proposals for changing the law on strikes?
A At present a strike will be lawful provided a simple majority of the votes cast are in favour; so if 100 members are balloted and 10 vote for strike action and 9 vote against, the strike will be lawful. The CBI has suggested changing the law so that for a strike to be lawful at least 40% of the members balloted must vote in favour, as well as a simple majority of those voting. This would prevent a militant minority from using picket lines to bully a passive majority into taking strike action.
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