According to Nick Squire, a partner at Freshfields Bruckhuas Deringer: "Following the high-profile disputes at British Airways and London Underground this year, it’s little surprise that the extensive cuts expected to be announced in the Comprehensive Spending Review will have private-sector employers looking nervously over their shoulders. The private sector will be worried about a return to a strike-fuelled winter of discontent.
"But industrial relations legislation has tightened since the strikes of the 1970s and early 1980s. As part of the focus on the market economy while Margaret Thatcher was in power, the balance between protecting the rights of individuals legitimately to strike and ensuring minimum disruption to enterprise started to tip in favour of enterprise. Although there were some changes under New Labour (for example, enhancing protection against dismissal for striking workers), the fundamental balance has not shifted significantly since the 1980s.
"While it seems inevitable that we will see strike action in some form or another in parts of the public sector, and certain private-sector employers may find themselves involuntarily drawn into a public-sector dispute, I don't expect copycat strikes to spread in the same way as they did in the 1970s."
Sympathy strikes (secondary action) are unlawful, so it is no longer possible to strike in support of someone else’s dispute. Similarly, the practice of having ‘flying pickets’ – a common feature in the miners' strike back in the 1980s – is also unlawful.
The only circumstance in which a striking employee can legitimately seek to dissuade a third party employee from performing his duties is as part of a peaceful picket at or near to the striking employee’s normal place of work, in which case the striking employee can peacefully seek to persuade third party suppliers or employees from entering their employer’s premises.
As part of the changes during the 1980s, trade unions are now subject to complex balloting requirements if they want to avoid liability for inducing workers to breach their contracts by going on strike. Even relatively simple mistakes can be enough to invalidate a ballot and enable an employer to obtain an injunction if a mistake is made.
Squire added: "To prevent strike action, employers are increasingly scrutinising the union balloting process to look for flaws and are not afraid to seek an injunction if a mistake is made. However, the complexity of the rules mean that the area can be a minefield for unions and employers alike. It is important to get expert legal advice at an early stage, whatever side of the fence you are sitting on.
"With the CBI and Mayor of London Boris Johnson now calling for the threshold for industrial action to be raised so that strikes can only go ahead if 40% of balloted members vote in favour of action, as well as a majority of those voting, momentum is building for the legislation to be reviewed once again to tip the balance further in favour of enterprise. But these are sensitive political issues for the Government.
"It is possible that the announcements on spending cuts could trigger an increase in unofficial ‘wildcat’ strikes by aggrieved employees. Last year saw high-profile wildcat action in the energy sector. Unions will usually distance themselves from endorsing wildcat strikes because they would otherwise be vulnerable to legal action. Given the effectiveness and disruptive nature of wildcat strikes, it would not be surprising to see some level of return to unofficial industrial action over the coming months but what we are unlikely to witness is a return to the state of relative paralysis that gripped the nation 30 years ago."
