Strike and counter-strike

The issue of secondary industrial action is unlikely to go away and is potentially crippling for business

Significant examples over the past 18 months, including this summer's strike action by BA staff in support of sacked Gate Gourmet workers at Heathrow, shows how disruptive it can be.

Secondary action – where workers come out in sympathy with the striking workers of a different employer – was made illegal under the Thatcher administration.

Participating workers risk dismissal, disciplinary action or docked wages. The trade union orchestrating the strike must issue written notices to the union officials and the employers involved, and inform those members taking secondary action that they will have no unfair dismissal rights if dismissed. Failure to "repudiate" the action in this way could expose the union to a damages claim of up to £250,000.

There seems to be a growing appetite among employers to take a stand against unlawful industrial action, and there are reports of legal action being pursued against unions. It remains to be seen what approach the courts will take. During the Gate Gourmet dispute, it was suggested that the repudiation claimed by the union's executive officers paid only lip service to the law.

People on strike

The government is trying to chart a middle course between business interests and trade unions. Ministers opposed a motion for a return to lawful secondary action (recently rebranded as solidarity action) passed at last month's Labour Party conference, and a complete reversal of the 1980s laws is unlikely. But government attempts to be even-handed are shown in the laws introduced this month (see below) and its extension of the protection for lawfully striking workers. The period during which they can't be dismissed has been increased from eight to 12 weeks from the start of strike action.

The unions made it clear at the TUC Congress that they still regarded the balance as being heavily weighted in favour of employers, and were committed to programmes of co-ordinated strike action to highlight key issues. They accused the government of reneging on last July's Warwick agreement, which pledged union support in the election in return for radical new labour laws during Labour's third term.

Labour's dependence on the unions for a third of its funds makes union priorities hard to ignore. Gordon Brown guaranteed full delivery of Warwick at the congress, including legislation on corporate manslaughter and adding bank holidays to the right to four weeks' paid leave under the working Time Regulations. But clashes between government and the unions are likely to continue through to the next election. The unions have a new list of demands, including a trade union freedom bill to reverse "anti-union laws". The planned reduction in employee numbers at the Department for Work and Pensions and private-sector involvement in the health service are other obvious battlegrounds.

On the double

Official figures for 2004 show a doubling of days lost through strike action – from 500,000 to 900,000 – compared with 2003. The UK is moving closer to the EU on this, having been well below for the past decade. But while continental Europe seems to moving away from disruptive and restrictive working practices, the UK seems to be drifting in the other direction. DB

Fair play

New laws in force from 1 October are designed to ensure transparency and fairness over industrial action. From now on, trade union ballot and industrial action notices to employers must list the work categories to which the employees concerned belong and the number in each, the workplaces affected and the number of employees concerned at each, and explain how these figures were reached.

In recognition or derecognition ballots, the union and the employer must refrain from unfair practices, including offering workers money or other incentives not to vote or to vote in a particular way. The employer must give the union access to workers, must not offer workers inducements not to attend a union meeting, or threaten or take disciplinary action against workers for having attended a meeting, or in order to influence a ballot outcome.

David Bradley is a partner and head of the HR group at DLA Piper Rudnick Gray Cary

Updated codes of practice on strike ballots and trade union recognition ballots can be viewed online.