Crane 12X5

Rights under threat

Pay & Contracts
Ian Allinson

Workplace activist Ian Allinson looks at what can happen when excessive restrictions are put on the right to strike.

The Strikes (Minimum Service Levels) Act is provoking questions. Would compliance make action ineffective? What might defiance look like? What risks would that carry? How can such legislation be defeated? Those of us facing such questions can learn from industries hardest hit by previous anti-strike laws.

Many countries legally protect the ‘right to strike’ but Britain never has. From 1906, unions held ‘immunity’ from being sued for inciting workers to break their employment contracts in connection with a trade dispute. Since 1980 that immunity has been successively restricted by complex strike rules.

If an employer can show that there is ‘a serious question to be tried’ – an astonishingly low burden of proof – they can obtain a court injunction ordering a union to stop a strike. Breaking an injunction is contempt of court, which can mean a union facing unlimited fines or sequestration (seizure) of assets.

Modern anti-strike laws threaten union finances to put pressure on union leaders to police their own members. Margaret Thatcher adopted this new approach after mass protests and strikes forced the release of the ‘Pentonville Five’ dockers from prison and defeated Edward Heath’s Industrial Relations Act 1971.

A strike is ‘unofficial’ if not backed by a union, and ‘unlawful’ if the law doesn’t permit it. The anti-strike laws don’t make striking ‘illegal’ or criminal. If workers take part in unlawful strikes they are more vulnerable to discipline or dismissal by their employers. Until 2000 the law didn’t make it automatically unfair for employers to sack lawful strikers either. Workers relied on sticking together to protect themselves.

Power imbalance

Since 1980, each Act has given bosses yet more power against workers. Slow postal ballots help employers impose changes – even redundancies – before workers can lawfully strike. Only strikes over a ‘trade dispute’ with your own employer are lawful, but employers can divide themselves into multiple legal entities, subcontract work and use agency workers.

Ballot turnout thresholds have prevented many workers who voted to strike doing so lawfully, including many NHS staff last year. In the 1980s, workers in the engineering industry struck lawfully to demand better pay for NHS staff. Now strikes in solidarity or over issues such as climate change or war are generally unlawful.

Construction is an industry where lawful strike action has been impractical for most workers for many years. Workers are often employed through subcontractors or are notionally self-employed. The workforce changes constantly as different trades come on and off a site. With lawful action rarely an option, construction workers take unlawful action and are often successful despite the industry being notorious for victimisation and blacklisting.

With unions unwilling to call unlawful strikes, workers built a network called the National Construction Rank and File, which includes non-union-members alongside members of different unions. The rank-and-file plan and call action themselves – independently of the unions.

Making bad laws unenforceable through mass defiance can win repeal

The attitude of the unions to this has varied a lot. When bosses tried to impose a 35 per cent pay cut on electricians in 2011, a union national officer described the rank and file as a ‘cancer’ in UNITE. Undeterred, workers staged protests and occupations at sites across the country and staged some unofficial unlawful (‘wildcat’) strikes.

As the campaign grew, so did pressure on unions to back it. Increasing numbers of UNITE executive council members joined protests, a mass picket and a brief site occupation. Eventually UNITE balloted workers at the Grangemouth oil refinery, a rare site with a stable enough workforce to make this possible.

This combination of wildcat action and the threat of official lawful action was enough to defeat seven major construction companies. UNITE has become supportive of the National Construction Rank and File, but both parties keep at arm’s length and value their independence.

Most wildcat strikes are short. There are sometimes longer strikes, particularly if the employer sacks strikers, when workers typically refuse to return to work until all are reinstated.

The involvement of workers in more than one union, or no union, helps unions fight off injunctions. It is many years since UNITE ‘repudiated’ a strike (telling members to return to work) to avoid an injunction despite frequent unofficial action.

Unlawful action is a scary prospect for workers. But, as the law is tightened to make lawful action impractical or ineffective, more are bound to see unlawful action as the best option. From the 1971 Act to the Poll Tax, making bad laws unenforceable through mass defiance can win repeal too. 


Ian Allinson is a workplace activist and author 

Below, the BMA's deputy chair of council, Emma Runswick, considers the likely effect of minimum service levels legislation on doctors’ industrial action

Emma Runswick 3
Emma Runswick

How the new law might be used

We expect MSL (minimum service levels) regulations for hospitals to be published imminently. The levels set so far have varied from 40% of journeys in passenger rail to 100% in fire and rescue, and border security.

No employer has yet issued a work notice forcing somebody into work. In some cases, for example on the railways, this is because the strategies adopted by trade unions have scared the employer. ASLEF called more days of strike action on LNER when the rail company began the MSL process.

Our strike action so far has been highly effective. Consultants in England have achieved a deal after strikes. If NHS Employers use MSL to prevent our current short periods of action being effective, additional periods of strike action may be needed to generate a similar effect. 

Now junior doctors have gained a mandate for action short of strike, this can also be in our arsenal when employers seek to issue work notices. As our campaigns develop, we can expect other tactics to be used to prevent safe industrial action, such as accusations that doctors have breached their professional duties. 

If there is unofficial action, the BMA will be legally required to repudiate unofficial industrial action in specific and exacting terms or face fines and sequestration of assets. 

Given the safety fears involved in use of MSL, explained in the last issue of The Doctor, we advise medical managers and consultants to plan for industrial action as you always have done. It will continue to be necessary to ensure cover for urgent, emergency and critical care without the presence of junior or SAS doctors.