Employment Update November 2010

The erosion of the "right" to strike?

The last few years have seen an increase in industrial action. Opinions vary on whether this is due to an increasingly militant workforce or as a result of economic conditions which have pushed employers to impose detrimental changes on employees with little or no consultation. Whatever the reason, employers appear more ready to try and prevent strike action by challenging balloting procedures and seeking injunctions. With further cuts proposed in the public sector, the discontent is likely to continue into 2011.

The level of detail required by UK legislation in the balloting process may appear to many to be cumbersome. In this update we focus on the issue in our opinion piece, which will hopefully provoke further thought. We also look at some recent pregnancyrelated cases and focus on pre-employment health questions under the new Equality Act.

SEMINAR DATES FOR THE DIARY

Equality in the workplace

10 November / Cambridge office

Redundancies, reorganisations & restructuring

17 November / Guildford office

Misconduct & poor performance

23 November / Cheltenham office

Employment law review of 2010

7 December / London office

For more information please see our website or contact Claire Jones on 020 7203 5123.

DAVID'S OPINION PIECE

Trade unions – a time for more restraint?

As governments throughout the EU struggle to reduce their budget deficits, public sector workforces are showing willingness to take strike action. The recent election of "Red Ed" as the new leader of the Labour Party has heightened concerns that as a new era of austerity bites within the public sector strike action will become commonplace. A debate has therefore begun on whether it is time for more legislation to curb the power of the trade unions.

Trade unions argue that the UK already has the harshest laws within the EU which encourage employers to bring legal action to prevent industrial action rather than enter into negotiations. They are feeling particularly bruised by the recent spate of case law which indicated the courts are willing to grant injunctions to prevent industrial action where only minor breaches of balloting rules have occurred. However, the unions conveniently forget the recent Court of Appeal decision in BA v Unite where balance was restored with an injunction removed and the Court noting that the legislation is there to ensure fair dealing, not to set traps for unions.

The RMT has also begun a challenge to the UK's balloting requirements in the European Court of Human Rights on the basis that they are so onerous they are incompatible with Article 11 of the European Convention on Human Rights. This effectively will determine whether the provisions of TULRCA stand in the way of the right to freedom of assembly and association.

The CBI is of the view that there needs to be change in two areas. First to ensure that trade unions are not recognised under the statutory recognition procedure without a vote on this issue and second that more militant trade unions cannot rely on a "yes" vote to take industrial action where fewer than 40% of their balloted members vote. Some...