Low turnout in strike ballots

There have been a number of calls for more restrictive regulation of industrial action in response to the current London Underground strike; most prominently, the Mayor of London, Boris Johnson’s call for minimum thresholds in strike ballots.

Strike ballots currently require a simple majority of union members voting on the question of a strike to support it, regardless of turnout.  Thus, for example, if 40% of balloted union members participated in a vote, and 60% of those voted in favour of strike action, that would be a sufficient basis for a strike (provided other regulations are complied with), notwithstanding the fact just under a quarter of balloted members voted for it.  The following considers the Mayor’s proposals (and the misreporting thereof); before doing so, it may be helpful to set out the current law.

The “right” to strike

In the UK, trade unions and workers do not enjoy a right to strike insofar as the term “right” is conventionally understood.  Rather, unions are provided with an immunity from liability for the normal legal consequences of industrial action, provided statutory criteria are met.

The common law position is that an individual who goes on strike is generally in breach of their contract of employment.  Trade unions that organise a strike will almost certainly commit a tort (a civil wrong) such as inducement of a breach of contract or conspiracy to do an unlawful act.  The remedies for torts are primarily damages and injunctions.

A series of Acts of Parliament, starting in 1906, and currently consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), granted unions and union officials immunity from liability for these torts. There is, therefore, a freedom to strike in cases for which immunity is granted, rather than any individual or collective right to strike.  In order to benefit from this immunity, the strike must, among other things, be “in contemplation or furtherance of a trade dispute”; strikes solely for political reasons will not be protected.

Strike ballots

The statutory provisions governing industrial action ballots and notices are contained in TULRCA, sections 226 to 235.  The requirements set out therein are many and detailed; what follows is a necessarily brief overview of some of the most relevant.

For the union to be protected from liability it must conduct a secret postal ballot of “all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part” in the strike, and no others.  Minor and accidental errors will be disregarded.  The voting paper must contain at least one of two questions:

  • “a question … which requires the person answering it to say, by answering “Yes” or “No”, whether he is prepared to take part or, as the case may be, to continue to take part in a strike;
  • “a question … which requires the person answering it to say, by answering “Yes” or “No”, whether he is prepared to take part or, as the case may be, to continue to take part in industrial action short of a strike”.

Importantly, in order for the vote to form the basis of immunity in the case of a strike, the relevant majority is the majority of those voting on the first question, who must answer “Yes”; this need not be a majority of those participating in the ballot (because some might vote only on the second question), nor does it need to be a majority of balloted union members.

The union must also give the employer notice of both the ballot and the strike. The ballot notice must describe which employees the union believes will be entitled to vote in the ballot, and the industrial action notice must describe which employees the union intends to induce to take part in the industrial action.

The Mayor’s proposals

The Mayor wants to change the above law to require ballot thresholds, arguing in his Telegraph column (2 February 2014):

We need a ballot threshold – so that at least 50 per cent of the relevant workforce has to take the trouble to vote, or else the ballot is void.

This proposal is not new; Mr Johnson proposed a similar change in 2010 in response to the then ongoing Tube strike:

The Tube is a vital part of our transport infrastructure. It carries as many people as the whole of the rest of the national rail network put together. It simply cannot be right that a little over 3,000 people should be able to disrupt – or to attempt to disrupt – the lives and livelihoods of millions of people. The Government should consider a law insisting on a minimum 50 per cent participation in a strike ballot….

It appears therefore that the Mayor’s proposal concerns participation in the vote, rather than the direction in which votes are cast.  This contrasts with some media reports (for example, this), which suggest the Mayor has called for a requirement for at least 50% of balloted union members to vote in favour of strike action.

Under the proposal, a strike ballot would be void if less than 50% of those balloted voted; if 51% voted, the ballot would be valid, irrespective of how those votes were cast.  Some have pointed out the potential consequences of this.  Nigel Stanley, the Trades Union Congress’s Head of Campaigns and Communications, gave the following example:

Imagine a workforce of 1,000 balloting for strike action: 499 vote in favour with none against … that is not a legal ballot for strike action as the turnout is less than 50%.

They decide to vote again. This time 251 vote for a strike and 250 vote against. Despite support for action dropping by almost half, it’s a valid ballot as the turnout is greater than 50%.

Others have called for stricter requirements that would avoid this consequence.  For example, the Confederation of British Industry has for years been calling for a requirement that at least 40% of balloted members vote in favour of strikes, while the Institute of Directors has said it would support a change to require strikes to be supported by a majority of those balloted.  At the opposite end of the argument, the European Committee of Social Rights has concluded that “the scope for workers to defend their interests through lawful collective action is [in the UK] excessively circumscribed” and unions have long argued that strike ballots are already highly vulnerable to being rendered void by technical errors, even if they show support from a substantial majority of their members.

Author: Doug Pyper