Strike action – is it lawful?

It has been reported that the High Court has ruled that a day of strike action called by the Royal College of Nursing is unlawful. Nurses who are members of the RCN were due to strike from 8 p.m. on 30 April to 8 p.m. on 2 May. However, as a result of the judgment, the last day of strikes will not go ahead. So what are the legal requirements that a Union must comply with when calling strike action?

Strike action – key requirements

A Union organising industrial action must have the support of a properly organised ballot of union members. If the members vote in favour and the Union wishes to take industrial action, notice must be served on the employer at least fourteen days before the start of the industrial action.

The industrial action must take place within six months from the last day of the ballot, although this may be extended up to nine months if the parties agree. In accordance with Section 234 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), industrial action will no longer be lawful ‘at the end of the period, beginning with the date of the ballot, of six months.’

The RCN’s ballot closed on 2 November 2022. It argued that the period of six months after the date of the ballot covered the period of 2 May 2023. The Government argued that the last day of planned strike fell outside of the six-month mandate. The High Court has considered this and agreed with the Government. As a result, strike action on 2 May does not have the support of a ballot. However, planned strike action up to 11.59 p.m. on 1 May can still go ahead.

Comment

If a Union does not comply with the procedural requirements when organising industrial action, the employer may have grounds to seek an injunction to prevent the action from going ahead.

This judgment confirms that the last day of the ballot counts as the first day of the six-month period during which strike action can take place. A Union wishing to organise strike action outside of that six-month mandate would need to arrange a further ballot.

28 April 2023

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