When we think of trade unions, maybe the first thing that comes to mind is industrial conflict: probably because these are the situations that make good newspaper headlines! But trade unions have been around for a very long time, dating back to the period where there was no welfare state: people joined them for protection as they provided much needed support to their members and campaigned for reform.
Trade union membership in the UK was at its highest in the late 1970s when over half the workforce belonged to a union. In many organisations the functions of unions have now largely been replaced with employee forums and consultative committees.
Union recognition and the rights this confers is dealt with separately. In this section, we look at how to work effectively with unions and the advantages of working with trade unions. Unions can still have a strong influence on fairness at work, and may help to narrow the spread of earnings, prevent accidents and promote family-friendly policies and equal opportunity.
Considering recognition
Before you ever receive a formal request for recognition, if you predict that this may occur, consider whether this would lead to an improved relationship with your employees and therefore help to meet the objectives of the business. Do you have other consultation groups in place which negate the need for union intervention? If so, meet with the employee group concerned to identify what they believe is missing from the relationship. Is the consultation group not achieving its desired aims or is there a misconception (or a legitimate belief) that union membership can offer more?
Do be wary of unions using a particular situation or meeting to get a foothold into your business, but think carefully before simply pushing against them. What is the issue that has brought this about? What might you do about it? Usually there is something that has prompted the approach from the union. You may prefer to try resolving the issue directly with the appropriate workers, and thus avoid the constraints and costs of union membership. If you have a strong preference for a non-unionised workforce, then listen to what your workforce are really saying and take action to resolve the issue.
Where union recognition is highly likely to be imposed, rather than simply rejecting the union’s approach, it may be better to enter into a voluntary agreement in order to have more control over the whole process and the content of the agreement. Are you creating a longer term problem by taking a hard line? As with any potentially difficult situation, the key thing is to prepare in advance so that you know your rights and the rights of the union and can handle these appropriately.
It’s possible that you may be approached by more than one union. Recognising more than one can be troublesome, as you end up with two sets of negotiations and may have inter-union disputes. In such cases you could consider a joint negotiating board, where the unions agree to work in harmony. Alternatively if, following multiple requests, you settle upon recognition of just one union, you may be able to negotiate certain concessions in return which may simplify matters, especially issues leading to industrial disputes. Once you have an agreement in place with a union, a second union cannot force you down the mandatory recognition path (although do note that union recognition agreements transfer under TUPE).
Also consider your bargaining unit very carefully. In initiating the recognition process, the union has to identify who it represents, in terms of grades, functions and locations, and identify a “bargaining unit”. If the proposed bargaining unit does not sit well with how you manage the business, your pay/benefit/grading structures etc, then you can push back on this.
If you decide that you prefer not to recognise a union, there are many things that you can do to reduce your employees’ desire to involve a union. The most important is to ensure that clear channels of communication are available to all. Are there sufficient processes in place for employees to raise their concerns informally? Do you have a formal means of consulting with your employees?
Building a relationship with your union
If unions are active in your organisation, or if you are considering a request for recognition, the most important thing is to build a good working relationship with union representatives. The purpose of their involvement is to ensure fair working practices and benefits for their members and that should be your shared objective. Making this clear to both parties clears the way to a smooth working relationship. Fewer representatives nowadays are deliberately antagonistic as, due to the training available to them, many of them are also aware of legal requirements and of the trials of running a business and will bear this in mind when offering support to their members.
An effective union partnership agreement will normally cover your agreed procedure to resolve disputes. This should take into account dispute resolution processes in place for individuals and be clear to all parties.
If unions are recognised in a consultative capacity, as long as managers follow a fair process, they can assist in fielding questions, rather than managers having to deal with many employees coming along with individual concerns which may all boil down to the same issue. They can also be very supportive of management if consulted properly. This can be particularly useful in managing change. Such involvement may include health and safety issues and suggestion schemes, as well as pay negotiations. Effective union representatives can also lower employees’ unrealistic expectations quite well!
Collective bargaining
The main function of a recognised trade union is the legal right to conduct collective bargaining, which generally refers to negotiations on pay, hours and holidays, although other issues may be agreed between the parties. In contrast to legislation in many other EU member states, UK collective employment rights are not legally enforceable unless a collective agreement is specifically incorporated into an employee’s contract, or by a separate union partnership agreement.
A trade union which is recognised for the purpose of collective bargaining has the right to certain information, provided it meets all of the following conditions, in order to assist with the bargaining process:
- the information relates to the business (or associated employers if you are part of a group)
- the information relates to workers and issues covered under the agreement
- the union would be at a disadvantage during the process without the information
- disclosing it would be best practise with regard to employee relations
- the information is not covered by the following exclusions:
- disclosure would substantially damage the business, such as loss of clients/customers or funds; for example product cost information; detailed analysis of proposed investment, marketing or pricing policies; make up of tender pricing; or be against the interests of national security; or would involve the business breaking a legal prohibition order
- the information was received by the business in confidence, or obtained for the purpose of legal proceedings
- the information relates to an individual who has not consented to its disclosure.
Other information which may aid the process could be provided, such as:
- structures and guidelines for job evaluation, grading or pay systems
- earnings and hours analysed by grade, location or work group
- gross and net profits, assets and liabilities.
When supplying any of the above information, the union is not entitled to receive copies of the original reference documents, only to elements of the information within these documents.
Industrial or strike action
Official industrial action is action which is taken with regard to trade disputes following a lawful ballot, in which the required number of eligible employees have voted in favour of taking industrial action. Industrial action is a generic term which can cover a broad range of actions such as strikes, picketing, the refusal of workers to handle particular goods or equipment or to work with particular customers or suppliers etc, overtime bans, go-slows or working to rule – all of which are taken to apply pressure to an employer to address their concerns.
Any strike or other industrial action which is not authorised or endorsed by a trade union will generally be unofficial. Employees participating in unofficial action do not have statutory protection from unfair dismissal. Action called without a lawful ballot could still be deemed official if, for example, a union official has called the strike but will become unofficial if the trade union rejects it, in which case, the union must clearly distance itself in order to preserve its statutory immunity from liability.
The Strikes (Minimum Service Levels) Act 2023 was introduced in 2023 and it mandates employees working in certain sectors to provide a minimum level of service when there is strike action. The aim of which is to ensure that the public can continue to access vital services that are relied upon.
The sectors that the legislation applies to are:
- Health services
- Fire and rescue
- Education
- Transport services
- Border security Decommissioning of nuclear installations and management of radioactive waste and spent fuel.
The legislation requires employers, who have been given notice by a trade union under section 234A, to provide the union with a written ‘work notice’, which is formal notification that levels of service under the legislation apply in relation to the forthcoming strike.
Once a trade union has given the employer notice of strike action, there is no statutory duty on the employer to issue a work notice, the employer can decide whether to issue a work notice.
The employer should consider a range of factors when deciding to issue a work notice, including, but not limited, to:
- whether they can achieve the minimum service level without issuing a work notice
- levels of attendance during any previous strike action
- circumstances which may affect the delivery of the minimum service level, including expected level of demand for the service, and the location and timing of the strike
- the duration of the strike
- voluntary agreements they have with the trade unions to provide for minimum levels of staffing during strike days
If the employer intends to issue a work notice, there will be legal obligations for the employer to meet, including consulting with the trade union and meeting timelines for issuing the work notice.
Definition of a trade dispute
A person or trade union who calls for, threatens to call for or otherwise organises industrial action has immunity from civil action for inducing a breach of contract or interfering with a contract’s performance only if acting in contemplation or furtherance of a ‘trade dispute’.
For there to be a trade dispute:
- there must be a dispute between workers and their own employer
- the dispute must be wholly or mainly about employment-related matters such as their pay and conditions, jobs, allocation of work, discipline, negotiating machinery or trade union membership.
Lawful picketing
It is lawful for a person to attend the vicinity of their workplace in support of a trade dispute and for the purposes of peacefully obtaining or communicating information, or persuading any person to refrain from working. Picketing on private property or obstructing the highway, however, is unlawful. The number of pickets that may attend is not limited (although the recommendation is for six or less at any entrance or exit).
Avoiding industrial action
The most effective means of avoiding action is to adopt good employment practices and fair procedures and effective communication channels for dealing with grievances etc. Read our guide to preventing and managing industrial action.
Responding to industrial action
Responses to action will of course depend on the type of action taken and its severity. Whatever counter action is taken, the most important thing to remember is to aim to resolve the dispute at the earliest opportunity, so the sooner you meet to pursue this, the better. It is also possible for the union to agree to suspend action until talks have been carried out.
If industrial action is threatened, you can plan ahead to decide how to minimise disruption, communicate with external parties regarding the action and plans for minimising disruption, maintain effective communication channels, ensure that the organisation’s procedure for dealing with this is clear to the management team and communicate effectively with the media.
As with any employee relations issue, we would recommend that accurate records are kept of all action taken, including meeting notes etc, for the purposes of legal proceedings, should they be needed at a later date.
Action against employees who take industrial action
It is possible to apply disciplinary procedures, up to and including dismissal, against any employee who takes part in industrial action and the employee concerned may also lose his/her right to claim unfair dismissal. As with all dismissals, however, care should be taken to ensure that this could not be linked to an ‘automatically unfair’ reason, such as health and safety, breach of the Working Time Regulations or whistleblowing. The employer should also be seen to be taking reasonable steps to resolve the dispute before taking any action against employees. It should be noted that selective sanctions cannot be made against specific employees: all those involved in such action should be treated equally.
In most cases, an employment tribunal cannot consider a claim of unfair dismissal on its merits if the employee was dismissed while taking part in official industrial action.
The courts have taken a view that intentional disruption, such as “working to rule” is likely to amount to a breach of contract by the employee. In such cases, the employees should not expect to be paid remuneration unless they are able and willing to perform their contractual duties in full.
Trade Union Learning Representatives
Another aspect of union partnership is learning and development support. Where union members wish to have time off to train as union learning representatives, or to support members on such issues, or where members wish to take time off to receive these services, it’s important to come to an amicable agreement for time off.
Other issues in which to involve your union
Unions can be very helpful in providing support to employees at disciplinary and grievance hearings. They can make the whole process easier for everyone if they follow correct processes, as the union will understand the legal aspects and often ensure the employee remains realistic in his/her expectations of the outcome.
It’s important to ensure unions are consulted with at the earliest stage in any process, to ensure it is meaningful. One such situation would be during redundancy consultation; however, you need to check that if using unions as representatives in this way, you are sure that all affected parties are being represented so you may need to use a mix of elected representatives and unions. Similar processes can be followed in the event of lay-offs, restructuring, and other business changes.
When undertaking a TUPE transfer (whether you are the incoming or outgoing contractor), check for any existing agreements. Are they with a union that you already recognise? Any existing union partnership agreement will transfer so you may need to consider how you will handle joint negotiation. Existing unions may help you in these discussions and ensuring members are welcomed. Do ensure that you consult properly and in accordance with the agreement.
Controlling time spent on union duties
Union representatives have a legal right to time off with pay to perform their trade union duties, including accompanying workers at disciplinary and grievance hearings, but no right to time off for union activities. Both union representatives and union learning representatives have the right to time off with pay to attend relevant training.
Most organisations have specific agreements with the union representatives as to the amount of paid time allowed for them to undertake their duties (including attendance at grievance and disciplinary hearings, attendance at consultation meetings and other management briefings to the union) and such parameters can be very useful.
In any dealings with unions, do ensure that you are aware of the legal rights for all parties in each situation.
Further information
The Government has Codes of Practice on both picketing and industrial action ballots and notice to employers, as well as some useful general guidance if you are facing industrial action.
An Acas Code of Practice on time off for trade union duties and activities provides further guidance on time off and on how payments must be calculated.
