Springing into action – start date for Trade Union Act

The Trade Union Act 2016 will come into force on 1 March 2017. The new rules apply to any industrial action for which the ballot opens (by sending out voting papers) on or after that date.

The main changes the Act makes to the pre-conditions for lawful industrial action to be taken are:

• 50% turnout – at least half of those balloted need to cast a vote before it is valid. If the ballot is valid, then, as before, a simple majority must vote in favour in order for the ballot to mandate industrial action, subject to special rules for key sectors (mentioned below).

• 40% support in key sectors – in addition to the 50% turnout rule, where a majority of workers involved in the dispute are in key service sectors (health, education, fire, transport, energy, and border security), 40% of all eligible voters must vote in favour of industrial action. For health and education, private sector workers are included only if they are in publicly funded hospitals or schools; in the other sectors, all private sector union members are included in the threshold if they are delivering the specified services.

• Six month limit – there is a six month limit (up to nine months with employer agreement) on a mandate for industrial action, after which another ballot is required.

• Two weeks' notice of industrial action must be given to employers – seven days if agreed. The new limit applies where the employer receives a notice on or after 1 March.

• Ballot papers – they must set out the detailed nature of the issues in dispute; the types of action "short of a strike" and an indication of time periods for action.

• Union supervision of picketing – some recommendations in the Code of Practice on Picketing, notably the appointment of a picketing supervisor, will now be legal requirements.

The ban (in the recruitment sector regulations) on using agency staff to cover striking workers remains in place. The government consulted on lifting this ban in 2015 but as yet there has been no indication of whether the ban will be abolished.

More likely perhaps is a change to voting in industrial action ballots – last year the government announced an independent review of electronic voting (a commitment in the Act) last year, although the final report is not due until the end of this year. At the moment, only postal voting is allowed and trade unions had argued that one of the reasons for apparently low turn-outs in strike ballots was the lack of e-voting.

Fact check - EAT rejects argument that employer's refusal to allow flexible working was based on incorrect facts

If an employee makes a request for flexible working under the statutory scheme, the employer can only refuse the request for one or more of eight specific reasons. The employee can make a complaint to a tribunal if there have been "procedural failings" – including where the employer "bases its decision on incorrect facts". The key point is that a tribunal cannot substitute its own decision as to whether the request should have been granted or question the business reasons behind the employer's decision. The decision in Singh v Pennine Care NHS Foundation Trust illustrates this distinction.

For several years the claimant had been working night shifts at a residential home for patients with mental health problems – until a childcare crisis meant that she needed to switch to daytime working. Her request was refused for three of the statutory reasons – additional costs (bringing in agency staff); detrimental effect on the employer's ability to provide a service; and inability to reorganise work amongst existing staff. These were all linked to the need to maintain the required safe staffing levels.

The claimant argued that the decision was based on incorrect facts – she claimed that her night shift could be accommodated by existing staff and produced rotas which she said supported her case. But the Tribunal rejected her claim, as did the EAT.

The Tribunal had based its decision on evidence given by the employer, including the detailed rejection letter to the claimant and an internal briefing paper on flexible working contracts. The Tribunal accepted the existence of the difficulties around levels of staffing and budget for staff, the need for sufficient cover at night and minimum staffing levels. Although the Tribunal had not got into the detail of why the claimant's counter-argument was not viable, it was clear that it had accepted the employer's proposition that it was unable to devise a system with existing staff that would provide the required cover. There was no scope for re-visiting the employer's decision – tribunals can examine and decide on the factual correctness of an asserted ground for refusing a request, but not its fairness and reasonableness.

The position might have been different had the claimant brought an indirect sex discrimination claim. The tribunal would then have had to investigate whether the refusal to move the claimant to day shifts was objectively justified – assuming that the claimant was able to show that a requirement to work night shifts put women at a particular disadvantage.

Token of affection – no breach of human rights in sweetheart union recognition deal

In the long-running case of The Pharmacists' Defence Association Union v Boots, the PDAU sought compulsory recognition for its pharmacists under the statutory rules. However, before the PDAU applied to the Central Arbitration Committee (CAC) for recognition, the employer entered into a "sweetheart" recognition agreement for the pharmacists' bargaining unit with the Boots Pharmacists Association (BPA), a non-independent union.

Under the statutory rules, PDAU's application was inadmissible because there was already one union "recognised to conduct collective bargaining". The idea behind this provision is to stop one trade union from displacing another recognised union, but it applied even though the agreement with BPA was limited to some fairly peripheral issues and didn’t cover collective bargaining for the basic issues of pay, hours and holidays.

After going through various different stages, the case ended up in the Court of Appeal – to decide if the rules were incompatible with Article 11 of the European Convention on Human Rights (the right to form and join a trade union) because it made the exercise of trade union rights ineffective.

The Court of Appeal has confirmed that there is no breach of Article 11 because the statutory procedures contain specific rules allowing workers to apply for derecognition of a non-independent union. In practice, this would not be an easy option – one of the pharmacists would have to be willing to take it on and would have to show the CAC that at least 10% of the bargaining unit were in favour of derecognition and that a majority would be likely to be in favour, before the CAC could even accept the application and take it to a vote.