Trade Union Act 2016 – how will the legislation impact on the healthcare sector?

The Trade Union Act 2016 (“the Act”) results in significant changes to the right to strike and the power of trade unions.

The Act (and a number of Regulations supporting it) implements the 2015 Conservative Party manifesto commitment to protect the public from “disruptive and undemocratic strike action” and ensures that strikes can only go ahead as a result of a clear mandate from trade union members. The following changes have now come into force from 1 March 2017:

Ballot participation threshold – In order for a ballot for industrial action to take effect, at least 50% of trade union members who are entitled to vote must do so (with a simple majority voting in favour). Previously, only a simple majority was required, with no requirement as to turnout. By way of example, if 1,000 members are balloted, at least 500 need to vote in order for the ballot to be valid. If 500 members voted, then at least 251 members would need to support the proposals in order for action to legitimately go ahead.

New requirements for ‘important public services’ –  A new minimum threshold must also be satisfied for industrial action to take place in ‘important public services’, of which there are 6 sectors: health, education of those aged under 17, fire, transport, nuclear decommissioning, and border security. In these sectors, a ballot will only be successful if it meets the 50% participation above, in addition to being supported by at least 40% of all the members who are entitled to vote. This applies where the trade union reasonably believes that a majority of those balloted workers are workers who are normally engaged in the provision of important public services (this is considered in more detail below). By way of example of, if 1,000 members are balloted, at least 500 members would be required to vote. In addition, at least 400 members would need to vote in favour of action, as opposed to merely 251 members as above. The combination of both the 50% participation threshold and the 40% support requirement will make it significantly more difficult for trade unions to achieve the necessary mandate in order to undertake industrial action.

More information on balloting process – Trade unions are now required to provide more information on ballot papers, including a summary of the issues that are in dispute, what type of industrial action amounts to action short of a strike, and an indication of the time period during which the action is expected to take place. This is designed to allow members to take informed decisions. When announcing the results of the ballot, trade unions must also provide additional information to both members and the employer, including: the number of members who were entitled to vote, and whether the relevant threshold requirements had been met.

Timing of industrial action – Employers must now be provided with at least 14 days notice of industrial action, instead of the previous 7 days. Employers can however agree to 7 days’ notice if they wish. The requirement that industrial action must occur within a period of 4 to 8 weeks of a ballot has been replaced with a provision that the mandate for industrial action will automatically expire after 6 months after the vote was taken (or 9 months with the agreement of the employer).

Greater supervision of picketing – The Act gives statutory force to many of the provisions in the current Code of Practice on Picketing. This requires a picket supervisor who is familiar with the Code to be appointed by the trade union, and for the police to be provided with details of both the picket and the attending supervisor.

Transparency of facility time – From 1 April 2017, designated employers in the public sector with at least 50 employees are now required to publish information on the amount of time trade union representatives take off from their jobs in order to carry out their trade union activities. This includes the percentage of working time and pay bill spent on facility time; and the number of hours spent by officials on paid trade union activities. This will impact on many employers within the health service, including Clinical Commissioning Groups, NHS Foundation Trusts, NHS Trusts, Special Health Authorities, the NHS Commissioning Board, and NHS Improvement.

What impact will the legislation have on the health sector?

Initially there was confusion over which parts of the health service would be regarded as ‘important public services’, and would therefore be subject to the 40% support threshold. This has now been clarified and the following sectors will be regarded as ‘important public services’:

• Services provided in an emergency by an ambulance or associated transport service, including dealing with calls for help and organising their response
• Accident and emergency services in a hospital
• Services which are provided in high-dependency units and intensive care in a hospital
• Psychiatric services provided by a hospital for conditions which require immediate attention in order to prevent serious injury, serious illness or loss of life; and
• Obstetric and midwifery services provided by a hospital for conditions which require immediate attention in order to prevent serious injury, serious illness or loss of life.

Private healthcare and private ambulance services are expressly excluded from the scope of ‘important public services’. Private services are defined as being where the primary purpose of the service is not the provision of publically funded health or ambulance services.

The accompanying Guidance also provides examples of the types of workers who deliver ‘important public services’, such as paramedics, emergency care assistants, emergency technicians, and emergency dispatchers. It is not clear however whether workers who support these services would also be included, leaving considerable uncertainty over which workers will be covered by the Regulations.

The Guidance also attempts to provide clarity when an industrial ballot involves a mixture of workers who are carrying out an ‘important public service’, and those who are not. Where this is the case, the 40% threshold will apply if a majority of members who are eligible to vote in the ballot are deliver an important public service. The 40% requirement will not apply if the trade union reasonably believes this not to be the case.

The guidance also considers the role of workers who have multiple duties and spend only part of their time delivering an ‘important public service’ within the health sector. Such workers are only considered to be delivering an ‘important public service’ if they are ‘normally engaged’ in delivering this service. Importantly, it is for the trade union to consider what is normal in the specific circumstances. When considering whether workers with multiple duties are ‘normally engaged’ in delivering an ‘important public service’, the guidance recommends the trade union considers the following matters:

• How regularly the workers deliver important public services
• The proportion of time that the worker spends on delivering important public services
• Whether the worker is contracted to deliver important public services
• Whether the substantive role of the worker is to deliver important public services at the time of the ballot or likely industrial action
• Whether the worker has been temporarily allocated to different duties, and the time period this is expected to last for.

It should be noted that the trade union is only required to hold a reasonable belief in relation to the applicability of the 40% threshold. This means that if the trade union reasonably believes that the majority of members who are entitled to vote in the ballot are not carrying out an ‘important public service’, then it will have a defence to legal challenge, even if it later turns out to be wrong. Clearly, issues surrounding a mixture of workers and workers who have multiple duties have the potential to lead to significant uncertainty, with employers expected to challenge the ballot process under such circumstances.

What does the future hold?

Whilst most of the legislative changes contained in the Act came into force in March and April this year, further changes are on the way. They include:

Changes to political funds – From 1 March 2018, members joining a trade union will need to opt in to make contributions to a trade union’s political fund. Currently, members automatically contribute to the trade union’s political fund, unless they actively take a decision not to contribute. There are also no requirements for a trade union to publish details of their political expenditure. This will also change, and trade unions that spend more than £2,000 from their political funds will need to provide details of the political expenditure in their annual returns.

Restriction on check off – From 10 March 2018, public sector employers will only be permitted to provide a check off service (deducting trade union membership subscriptions via payroll) if the members have the option to pay their subscriptions by another means. Arrangements must also be in place for the trade union to make reasonable payments to the employer in respect of the costs of making the deductions.

Future role of agency workers – Employment businesses are currently prohibited from providing agency workers to cover the duties normally performed by workers who are taking part in industrial action. However, the Conservative Party manifesto stated that it would seek to “repeal nonsensical restrictions banning employers from hiring agency staff to provide essential cover during strikes”. Whilst a public consultation was carried out on this issue in 2015, no such proposals were brought forward as part of the Act. The outcome of the consultation has yet to be announced and could still result further changes in the future.