Len McCluskey comments on strike action

Len McCluskey has attracted news headlines today, calling for strike action in relation to public sector pay going so far as to say that he would support illegal strike action.

Whether a strike is “official” that is supported by the relevant Trade Union has important consequences for the legal protection afforded to employees who participate in strike action.  Statutory protections are only afforded to employees who participate in official action.

Under current Trade Union Legislation, a Union can only obtain a lawful strike mandate if:-

• a minimum of 50% of the members of the Union eligible to vote participate in the ballot;
• a so called “important public services”, health service, fire service, transport services, border security, nuclear decommissioning and education, as well as obtaining the 50% minimum turnout, at least 40% of those eligible to vote must support strike action for it to be lawful.

Previously, ballots simply required a simple majority of those voting, regardless of the level of participation, to be lawful.

If strike action does not have the support of a lawful ballot, and is condoned by the Trade Union, the Trade Union can be liable for damages for inducing an illegal strike.  The amount of damages that can be awarded against a Trade Union for inducing an illegal strike cannot exceed the following limits:-

• £10,000, if the Union has fewer than 5,000 members;
• £50,000, if the Union has 5,000 or more members but fewer than 25,000 members;
• £125,000, if the Union has 25,000 or more members but fewer than 100,000 members;
• £250,000, if the Union has 100,000 or more members.

As Unite claims that it has circa 1.42m members, it potentially faces financial liability of £250,000 if it condones an illegal strike.  It, therefore, remains to be seen whether the Union will actually expose itself to claims and back its members by supporting and condoning “illegal strikes” if ballots proceed, a simple majority vote in favour of strike action, but the relevant thresholds are not met.